126 Tenn. 370 | Tenn. | 1912
delivered the opinion of the Court.
The defendant in error sued the plaintiff in error in the law court at Bristol for damages arising out of the death of her husband, alleged to have been caused by the negligence of the plaintiff in error.
We have no reported decisions of this court upon tbe effect of concurrent motions of plaintiff and defendant in the trial court for peremptory instructions. Tbe subject has been much discussed in tbe federal courts, and in the courts of last resort of several of tbe States. Most of the authorities will be found collected in a note to tbe case of McCormick v. National City Bank, 6 Ann. Cas., 544, and in tbe note to Wolf v. Chicago Sign Printing
On points of practice which are wholly new in this State, this court, in establishing the practice to be followed here, does not feel itself bound to follow the precedents of other States, but exercises the unquestionable right of choosing what may seem to it the best practice, that most conducive to the attainment of justice. Foreign precedents are not authority. They are only persuasive, though we concede, not lightly to be disregarded. Yet we feel less hesitancy in declining to follow a line of precedents on a point of practice than on one involving a question of substantive law.
Instructions of this character are very, useful when confined to their legitimate sphere of presenting only a question of law to the court — the legal effect of uncontested facts; but when the artificial rule last mentioned is imported into the practice, many difficulties are introduced, which not only influence the efficiency of the practice of giving peremptory instructions, but make them a pitfall for litigants.
It is true that one who moves the court for peremptory instructions thereby asserts his belief that there is no conflict in the evidence on any substantial or material point, and insists that the law is with him on such undisputed evidence; and it is equally true that his adversary, making a similar motion, is in the attitude of making the same claim in his own behalf, both as to facts and law. They are both, then, in the attitude of saying there is nothing but a question of law involved ; that is, the law of the case, as applicable to the undisputed facts. Tyrus v. Kansas City, Ft. S. & M. R.
It is true that each litigant, op making the motion for peremptory instructions, expects and understands that the trial judge will consider the evidence; and he must know that the judge will either find there is no substantial conflict, or that there is such conflict, and that in the first instance he will give the instruction in favor of one party or the other in accordance with his view of the law applicable to the facts. But he cannot be said to have assumed, much less agreed, with his adversary and the court, that in the second case (the finding of a conflict) the judge will either submit the case to the jury or take it from them, and decide the disputed points himself, as if the jury had in express terms been distinctly and formally waived by both parties. There are no such alternatives, either as logical sequences or within the contemplation of the parties. The obvious and true alternatives are that the judge will either peremptorily instruct the jury in favor of one party or the other, or will submit the case to the jury with general instructions as one unfit for peremptory instructions. In our judgment, we say, with great respect for the learned courts that have held to the contrary, that the construction of such acts of the parties into an agreement that the case shall be withdrawn from the jury and decided by the judge on the merits of the controversy at large, when he is of opinion and adjudges that both motions should be denied, is one that the acts and attitude of the parties cannot logically or soundly bear.
Defendant, in error will pay the costs of this court and of the court of civil appeals.