*1 v. appellant upon Gregory relies Lastly, Petitioner, HOLMES, Harold Porter, 204 Tenn. 322 S.W.2d v. (1959). employee There the duties of the delivering points automobiles involved WILSON, Respondent. Robert returning from his home. While distant Tennessee. Supreme Court of route he delivery over the from such May 1977. injured. traveled, usually fatally he was compensable. to be The Court held death Batson, Knox v. by
This case is controlled rules this Court
supra, by principles settled galvanized into
law. pertinent pronouncement
The latest will be found Woods
of this Court
Warren, There we re S.W.2d relating injuries
viewed the authorities to or going while employees
sustained recognized the ex from work. We
coming non-liability general rule
ception to the the “risks of
arising in those cases where directly employ incident to the
travel are itself”, supra. citing Surety, Central
ment in between pointed out the distinction “arising employment” out of
juries merely employment” “in the course of
those must be both these criteria
and held that coverage. in order to establish
met appellant sustained injuries employment. arise out of his
simply did not with, and merely were coincidental
They tangential thereto. There
collateral coverage.
no
Affirmed. FONES,
COOPER, J., BROCK C. HARBISON, JJ., concur. *2 Todd, Waldrop, Hall,
James D. Tomlin & Farmer, Jackson, petitioner. Davis, Lexington, Joe for respondent. C. OPINION HENRY, Justice. appellate disposition
The of this civil ac- tion for damages upon turns a construction Tenn.R.Civ.P. I. evidence,
At the of all conclusion defendant the court moved for a directed alleged verdict on the of an insuffici- basis ency of evidence material which predicate The trial liability. judge over- and, ruled motion, under Rule 50.02 to have submitted The matter then came before the Tenn.R.Civ.P. is “deemed Court subject to later jury to the second The the action time. legal questions raised determination proof and held that there was reviewed motion.” by the from which the jury material evidence reasonably petitioner infer that could damages awarded in the sum of *3 in guilty negligence particulars various $28,000.00. with the negligence and that concurred 50.02, Defendant, to Rule pursuant re- negligence of a co-defendant to cause to set aside the verdict and moved the court spondent’s injuries. The Court reversed the judgment and to enter accord- judgment granting a trial judge’s trial action verdict, for a directed ance with his motion directing verdict and reinstated and a and, a in the alternative for new trial. jury. verdict of the the motion for a di- judge trial sustained action. He rected verdict dismissed the act alternative motion for
did not II. a new trial. for a motion judge When a trial sustains when specifically provides 50.08 that Rule v., that n. 50.03 mandates judgment o. Rule o. is judgment granted, a n. v.1 a motion for he also rule on the alternative trial, indicating grounds grant- for . shall also rule on the the court denying if deter- or the motion. any, ing motion for a new granted whether it should be if mining that the be in mind It must borne or judgment is thereafter vacated becomes was conditional and a new trial reversed, specify grounds and shall action only judge’s if the trial effective denying for or the motion for a granting reversed. This condi- granting judgment is (Emphasis supplied). new trial. Rule 50.03 trial under tional of a new after appeal, Appeals, On the Court judg- of the finality does not affect judge did not out that “the trial pointing If review it. ment, lies to appeal his the direct- express granting reasons judgment n. court affirms verdict”, the case with di- ed remanded follows controversy o. This v. the is ended. he the verdict as a rections that review grant of a from the fact that the juror, grounds for specify thirteenth opera- not become was conditional and does for a sustaining overruling or the motion is re- judgment ble unless and until apparently The court was under new trial. If reverses appeal. it versed or vacated on had impression judge the trial grant of the motion judgment, a but such granted conditional life, and the case springs to new trial judge case. The trial had was not the appel- “unless the for a new remanded v., nothing granted judgment Rule otherwise ordered.” court has late more. 50.03. judge correctly On remand the trial the cor with are not concerned Ap- treated the mandate of judge’s action rectness of the “to rule on the motion peals as directive Having new trial. a conditional awarding directive, Pursuant to this for new trial.” the jury with his dissatisfaction expressed acting under Rule judge, juror, verdict, as capacity his thirteenth trial, and, as granted conditionally is not awarding a new trial action in his rule, his reasons. required specified reviewable, only issue before and the totally dissat- He it clear that he was made entering and, is his action in appellate courts as isfied with the verdict of Co. Montgomery Ward & judgment n. o. v. juror, disagreement. thirteenth was in Caruthers, History aof in A. as described A n. 50.02 is o. v. under Rule Lawsuit, ed. 391 Sec. obstante ve- non be confused with a procedure redicto, the old under as it existed Duncan, may 311 U.S. set the verdict against S.Ct. aside when it is (1940).2 L.Ed. 147 weight evidence or when the justice
interests of would thereby. be served Thus the trial over- consistently may III. rule a motion for directed verdict or for specifically Now we look at the or deny n. o. v. and n. o. v. If he or she should sustain the mo- entry A motion for the post-trial verdict, tion consistency for a directed de- in accordance with a motion mands that there be a conditional award during for a directed verdict made a new trial. gauged by relating
must
the usual rules
Ap
We concur with the Court of
require
to directed verdicts. Those rules
that a
peals’ holding
jury question was
*4
judge,
appellate
and the
presented
entry
judgment
and the
of
n. o. v.
courts,
view
strongest legitimate
take the
was erroneous.
of
opponent
of the evidence
favor of
motion,
all
allow reasonable inferences
IV.
favor,
in his or her
discard all countervail
ing evidence,
deny
and
the motion where
When an appellate court determines
there is
as to
any doubt
the conclusions to
judgment
that a
n. o. v. was erroneously
be drawn from the
evidence. A ver
whole
entered,
may
it has two choices: the case
be
after,
dict
during,
should not be directed
or
trial,
remanded for a new
or the verdict
except
trial
where a reasonable mind could may be
options
reinstated. These
flow
(3rd
draw
Ass’n, 501
ler v. East Tennessee Producton Credit
See also Silverii v.
ton, 514
Cir.
but one conclusion.
S.W.2d
1963).
S.W.2d 810
870 (Tenn.App.1974);
Kramer,
Vaughan
(Tenn.App.1973).
When these rules are
to the
applied
of
to
The Court
elected
reinstate
facts in the
question
instant case there is no
verdict.
think this was error.
but that the issues presented
jury ques
appears
The
rule
to be that the case
tion,
judgment
and that
n. o. v. was
Trice
is remanded
v. Com
erroneously entered. Neither
Assurance Company,
mercial Union
judge nor the reviewing
privileged
court is
1964);
(6th
F.2d 673
Cir.
Menneti v. Evans
weigh
to
the preponderance of the evidence
Co.,
(3rd
Construction
When dual
are
i.
explained thusly:
cedure is
e. motions for a directed verdict and for a
reversed,
two
of consideration
standards
n. o. v. is
Where
are
granted
involved. On motion for
n. o.
a motion
judge
and the trial
v.,
the sole concern
is the
ordinarily
of the trial
for a
the case will
be
existence of material evidence in accord
remanded to the trial court for a new
ance with the above criteria whereas on
with that court’s ac-
trial in accordance
motion
new trial he has a substantial
tion on the motion for a new trial. But
wider,
unbridled,
ly
though
appeals
authority
latitude and
have
the courts of
graph
in all materi-
Montgomery
ruling
of Rule 50.03 Tenn.R.Civ.P.
Ward
reaffirmed
2.
50(c)(1)
by
particulars.
Fed.
Federal Prac-
the 1963 Amendments
to Rule
See 5A Moore’s
al
para-
tice,
50.014.
R.Civ.P.,
first
Sec.
with the
identical
which is
(Emphasis supplied) would demand a new
but
that it
order “otherwise”.
held
at
5A
Federal Practice Sec. 50.14
was “not
the conditional
compelled
Moore’s
allow
an
of
grant
2382.
to stand if it would be
abuse
allow a
419 F.2d
discretion to
new trial”.
Miller,
Wright
In
&
Federal Practice
its
at 65. The Court referred to
“discretion
Procedure,
thusly:
phrased
it is
50(c) and
its position
under Rule
bolstered
court affirms the
appellate
If
citing
commission note
by
advisory
If it
of
case
ended.
reading
part
as follows:
judgment the
reverses the
court,
it
appellate
if
reverses
[T]he
in accordance with the
proceed,
trial must
v.,
may
appropriate
court,
trial
“un-
by
conditional order
case also reverse the conditional
or-
less the
court has otherwise
trial and direct that
Wright &
(Emphasis supplied).
dered.”
(Emphasis sup-
entered on
verdict.
Procedure,
Miller, Federal
Practice
F.2d at
fn. 3.
plied). 419
2540 at
Sec.
F. Rich
Company,
United
v. D.
States
impres-
question
Because this is a
first
1970) recognizes that an
F.2d 549
Cir.
jurisdiction,
sion
this
view
award
“is addressed to
identity
50(c)(1)
Fed.R.Civ.P.
judge,
sound discretion
Tenn.R.Civ.P.,
eases
Rule
we look to
50.03
standing
must be left
this court absent
jurisdictions.
decided
federal
showing
Emphasis
of abuse
discretion”.
*5
Tire
In Hansen v. Firestone
and Rubber
F.2d
553. The
ac-
supplied. 437
at
Court
(6th
1960)
F.2d
Cir.
Company, 276
254
cordingly
for a new trial.
remanded
court,
held
authority,
without citation of
502
Mays
Corporation,
v.
Lumber
Pioneer
in
appellate
may,
“.
.
court
that
.
1974)
(4th
judg-
F.2d 106
Cir.
involved a
case
there is suffi-
appropriate
where
hav-
only,
ment
v.
support
jury
to
a
cient substantial evidence
for a new trial.
ing passed on the motion
to
to
verdict
order the cause
contrary,
correctly
succinctly
The Court
summa-
to reinstate
be remanded with instructions
under
as fol-
rized
issue
consideration
276
at 255.
of the
F.2d
jury.”
verdict
lows:
Pa-
In Berner v. British Commonwealth
authority
proposition
There
for the
is
Ltd.,
Airlines,
(2d
F.2d 532
Cir.
cific
346
we
have
alternative other
that
now
no
1965)
Court,
finding that the trial
after
to remand either
third
than
a
awarding
in
judge abused his discretion
judge to consider
trial or for the district
reversed the
conditional
another trial.
anew whether
judgment n. o. v. and the conditional
a
Co.,
Ross
109
Casper
See
v. Barber &
ver-
reinstated a
a new
(1961)
F.2d
385
U.S.App.D.C.
288
dict in
of the defendant.
favor
dissenting).
J.,
(Miller,
concurring and
States,
F.2d
us,
In
377
Compton v. United
it seems
But
better viewpoint,
Moore,
a
(8th
1967)
408
Court reversed
Cir.
that
Professor
suggested by
jury’s
o. v.
reinstated the
n.
points
who
out that where
However,
in that case there
verdict.
court
n. o. v. is reversed and
a
no award of a conditional
trial.
the motion for
alternatively granted
re-
ordinarily
the case will
Court, in
Mutual
Powell
Lititz
courts
manded for a new trial
“[b]ut
(5th
In the instant case we find exceptional no
circumstances that would justify depar-
ture from the rule. The action of trial judge granting a judgment n. o.
v. is reversed. The action of the Court of court, reversing the trial in this
regard, is affirmed. Its action in reinstat-
ing the verdict is reversed. part;
Affirmed in part; Reversed in Re- MARTIN BROTHERS CONTAINER manded. CORPORATION, AND TIMBER *6 FONES, Justice, dissenting. Appellant, I respectfully dissent. In my opinion, the learned trial judge LYNCH, Appellee. Lillian W. was correct in directing a verdict in favor of defendant Holmes. His action was based of Tennessee. Supreme Court upon finding that defendant Holmes was 31, 1977. May guilty of any proximate negligence and that the sole proximate cause of the three
vehicle accident was negligence Jerry
McDaniel.
McDaniel entered the four-lane highway
from the premises of a barbecue stand on
the north side of the highway, crossed the
two west-bound traffic lanes and struck the rear,
Holmes south-bound vehicle in the left
causing Holmes to lose control and strike truck,
the rear of plaintiff’s pick-up also
proceeding in a southerly direction. I do
not believe that varying estimates speed
Holmes’ or his failure to be aware of
the presence of the McDaniel vehicle at a point
earlier in time provided any evidence
of proximate negligence.