Shuey v. Frierson

246 S.W.2d 28, 193 Tenn. 318, 29 Beeler 318, 1952 Tenn. LEXIS 293
CourtTennessee Supreme Court
DecidedFebruary 9, 1952
StatusPublished
Cited by6 cases

This text of 246 S.W.2d 28 (Shuey v. Frierson) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shuey v. Frierson, 246 S.W.2d 28, 193 Tenn. 318, 29 Beeler 318, 1952 Tenn. LEXIS 293 (Tenn. 1952).

Opinion

Mb. Justice Bubnett

delivered the opinion of the Court.

This suit was brought by Mrs. Shuey to recover damages for personal injuries sustained by her in an accident on the sidewalk in front of the Frierson Building in Columbia. Mrs. Shuey sued the Friersons, the owners and lessors of the building; E. H. Ayers, the lessee in possession and control of it; and the City of Columbia, the authority in control of the streets.

[320]*320The Frierson Building fronted on a public street,, its front wall abutting on the sidewalk. At the front entrance there was a screen door which in opening swung outward across the sidewalk. As Mrs. Shuey was walking along the sidewalk she was violently struck and knocked down by this screen door, when it was suddenly and forcibly pushed open by a person coming out of the building. As a result of thus being knocked down she suffered the injuries sued for.

It was the contention of the plaintiff that the door thus opening outward over the sidewalk was an unauthorized obstruction of the public highway and so dangerous to passers-by as to be a public nuisance; that the lessee was liable for maintaining this nuisance; that the lessors were also liable for creating it; and that the City of Columbia was likewise liable for permitting it to be maintained by the lessee.

The jury before whom this case was tried rendered a verdict in favor of the plaintiff against the City of Columbia and the lessors, Friersons, for $2,100. The jury though rendered a verdict in favor of the defendant, lessee, Ayers. Upon appeal the Court of Appeals reversed the judgment as to the City because the City had no notice of the door opening outward over the sidewalk. The Court of Appeals likewise reversed the judgment as to the lessors, Friersons, because of the inconsistency of the verdict, that is, the jury having rendered a verdict in favor of the lessee could not then render a verdict against the lessors. This reversal on behalf of the lessors was based on our case of Loveman Co. v. Bayless, 128 Tenn. 307, 160 S. W. 841, Ann. Cas. 1915C, 187, wherein it was held that where the master is sued under the doctrine of respondeat superior for a wrong of his servant, a verdict in favor of the servant [321]*321entitles the master to a discharge from liability. The Court in that case saying: “The principle is firmly established in even a wider application, as, for example, cases involving lessor and lessee sought to he held liable on the same cause of action”. 128 Tenn. at page 314, 160 S. W. at page 842.

The Court of Appeals, thereupon, reversed the case and remanded it to the lower court for a new trial as to the lessor and the lessee. The lessee, petitioner here, then filed a petition to rehear in the Court of Appeals wherein the lessee set up the fact that he was not a party to the appeal and did not appear in the Court of Appeals and asked that this judgment remanding the case for trial as to the lessee be corrected. The Court of Appeals in treating this petition to rehear said:

“We agree with petitioner that he was no party to the appeal in error and not before the Court, and that the Court had no jurisdiction to make any adjudication as to him. Nor did the Court undertake to make.any such adjudication. We merely pointed out the fact upon the record that no judgment had been entered as to him and the case was undeteiunined and still pending as to him. Further, it may be observed that petitioner is still in the same status. Not being a party to the appeal in error he is not now before the Court, and we have no jurisdiction of his petition.

Though he was not before the Court, the question of the validity of the verdict was. The lessors, plaintiffs in error, properly made that question here; and, for reasons stated in the opinion, we held that the verdict was void so that no judgment could he entered thereon.

“Since the verdict in this case was void it could not be the foundation of any valid judgment. The same reasons which condemned the judgment entered on the verdict [322]*322against the lessors, plaintiffs in error, would equally apply to any judgment entered on the verdict in favor of the lessee, including the nunc pro tunc judgment.”

After the judgment of the Court of Appeals was rendered the lessee, petitioner here, secured a nunc pro tunc judgment in the Circuit Court and attempted to file it along with his petition to rehear in the Court of Appeals. This is the nunc pro tunc judgment which is referred to in the portion of the Court of Appeals opinion above quoted.

After the case was fully heard and submitted to the jury in the trial court the jury returned a verdict in the court and on this verdict the following order was entered.

“After hearing all the proof offered in the case, the argument of Counsel and receiving the charge of the Court, the Jurors aforesaid upon their oaths retired to consider their verdict.

“After taking time to consider their verdict, the Jurors aforesaid upon their oaths aforesaid, returned into open Court and said, ‘We, the Jury find in favor of the Defendant, Mr. E. H. Ayers, E. N. Haywood, Foreman.’ ‘We the Jury find in favor of the Plaintiff' and against the Defendant, Miss Eleanor Frierson, John W. Frier-son, Bradley M. Frierson and the City of Columbia and fix the amount of recovery at $2100.00. E. N. Playwood, Foreman. ’

“Whereupon Counsels for the Defendants moved the Court for permission to file Motion for a new Trial which was granted by the Court. ’ ’

Following the entry of this order on the verdict of the jury the City of Columbia and the Friersons, the lessors, filed motions for a new trial. Both motions for a new trial were overruled and the defendants, City of Columbia and lessors appealed to the Court of Appeals result[323]*323ing in the action by the Court of Appeals as above indicated.

The lessee, Mr. E. H. Ayers, now files a petition for certiorari wherein the clear and single proposition is made that the jury found in favor of this lessee, Mr. E. H. Ayers, and a verdict was rendered on this finding of the jury and that no motion for a new trial as to the finding of the jury as to him was made by the plaintiff or anyone else and thus no motion having been made and the term of court having ended he considered that he had won the case and forgotten all about it until the Court of Appeals reversed as to the other two defendants and remanded the case for trial again as to the lessee.

In the first place when the judgment was rendered on the v.erdict and this judgment entered on the verdict of the jury and nothing then was done about the verdict as to this lessee, within the term or within thirty days thereafter or within the time that the rules of court allow a motion for new trial to be filed, then this became a final judgment as to the lessee, Ayers. Does the fact that the other defendants who were cast in this lawsuit, filed motions for new trial and their motions are sustained by the appellate court, constitute a reversal of the verdict of the jury as to the lessee under the situation here presented?

Ordinarily “where the verdict is reasonably plain and lawful it becomes the basis of the judgment and no other fact than the return of the verdict need be recited.” Tennessee Procedure and Law Cases, Sec. 1727, page 687.

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Related

Ray v. State
576 S.W.2d 598 (Court of Criminal Appeals of Tennessee, 1978)
State v. Bouchard
563 S.W.2d 561 (Court of Criminal Appeals of Tennessee, 1977)
Leek v. State
392 S.W.2d 456 (Tennessee Supreme Court, 1965)
Shuey v. Frierson
270 S.W.2d 883 (Tennessee Supreme Court, 1954)

Cite This Page — Counsel Stack

Bluebook (online)
246 S.W.2d 28, 193 Tenn. 318, 29 Beeler 318, 1952 Tenn. LEXIS 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shuey-v-frierson-tenn-1952.