104 Tenn. 357 | Tenn. | 1900
Bovd sued Fox for slander. The jury returned a verdict in these words: “We° find for the plaintiff, and assess -his damages at one dollar and the cost.” Thereupon the trial Judge, on his own motion, addressing the jury, said: “The jury cannot dispose of or adjudge the cost, and unless the verdict is for more than $5 the cost would go against plaintiff under the law, notwithstanding the -jury might determine it the other way. With this explanation of the law as to cost you can still fix the damages at one dollar, or at such sum as you think proper. Perhaps you. had better retire and consider whether you wish to make any change in your verdict, leaving out of consideration the cost entirely; the law fixes that. You will assess the damages alone.”
To this action of the Court the defendant excepted, insisting that the. verdict should be accepted as rendered, and the jury discharged from the further consideration of the case.
The jury retired and on the next court day returned a second verdict in faxror of the plaintiff, assessing his damages at $5.10, without more. The defendant thereupon moved the Court to ar
Without formally stating tbe different assignments made, tbe questions raised by them will be grouped and decided under two beads.
1. The trial Judge rightly refused to accept and pronounce judgment upon tbe first verdict, because it undertook in terms, and contrary to law, to fix liability for cost. In that particular it went beyond the province of the jury and to that extent was incapable of being effectuated by judgment. If tbe case bad been an ordinary one, in which the cost goes against tbe unsuccessful, party as a matter of law, tbe Court might well have rejected that part of the verdict relating to cost as mere surplusage and pronounced judgment accordingly; but, since the case is in fact one of an exceptional class, in which liability for cost is not so determined, and since the verdict as rendered may well be said to have indicated a purpose on the part of the jury to give the plaintiff such a recovery as would cast the whole burden of the cost on the defendant, that course
The case of George v. Belle, 101 Tenn., 625, is precisely in point, and the decision there made, though not published at the time, is direct authority for the action of the Court in .the present case. It is true that in that case the defect in the first verdict was suggested to the Court by' the plaintiff’s counsel, while in this one the Court received no such suggestion, but that difference is not material. The Court has the same right to ask a correction of a defective verdict on his own motion as on the suggestion of counsel. The failure of counsel to suggest correction does not cure the defect, nor require the Court to pass it by unnoticed. Of course, it would have been improper for the Court to indicate to the jury that he thought the defendant should be required to pay all the costs, but neither the fact that he acted on his own motion nor anything else appearing in the bill of exceptions justifies the suggestion that he did so.
2. The instruction given the jury after the return of the first verdict was inaccurate in the statement that “unless the verdict is for more than $5 the cost would go against the plaintiff
No doubt the learned Judge intended to apply the other similar statute (Shannon’s Code, §4939), which provides that “in civil actions founded upon assaults, assault and battery, malicious prosecution, false imprisonment, slanderous words . . . the plaintiff recovers no more costs than damages, unless the recovery exceed five dollars,” overlooking the fact that the inclusion therein of the clause, “slanderous words,” was a mere inadvertence on the part of the compilers of the Code of 1858, which was held in Bates v. Sullivan, 3 Head, 633, and in Steffnar v. Burton, 87 Tenn., 135, to have been ineffective and to have left the exclusive rule established for slander cases by the other section quoted ■ above, in full force.
But this oversight and consequent inaccuracy of the trial Judge do not constitute reversible error. At the most they could only have prejudiced the defendant to the extent of ten cents in the amount of damages found by the jury, and that is so small a matter as to require the
Moreover, the jury might as well have returned a verdict for $5.10 as for $5 if the instruction had been strictly accurate; hence, it does not appear that the error did in fact prejudice the defendant even to the extent of ten cents, and for that additional reason it is not ground for reversal.
Affirmed.
