Smith v. Williams

NEARN, Judge,

dissenting.

I do not agree that it is harmful reversible error to afford litigants a jury without their consent. In view of our harmless error statutes (T.C.A. §§ 27-116, 117), it is incongruous to me to say that a party has been injured to such extent that a new trial is required because twelve men, instead of one, decided that party’s dispute. In fact, I do not believe that appellant Williams, believes that it was reversible or harmful error. His first Assignment of Error is “The Trial Court erred in failing to sign the Agreed Order waiving the Jury.” The entire argument found in the brief on this Assignment of Error consists of one sentence viz.: “The Trial Court could have granted a new trial on the basis that he erred in failing to sign the Agreed Order waiving the Jury.” This hardly complies with our Court Rule 12(l)(b).

Neither do I agree with the majority’s interpretation of the rules. The majority correctly point out that Rules 38.02, 38.03, 38.05 and 39.01 all speak of a party demanding a jury. However, I do not concur in the majority’s interpretation of Rule 39.02 that it provides “the trial judge in his discretion may grant that party a jury trial”. The rule simply does not say that to me. In Rule 39.02 where using the term “upon motion” it is not followed by the words “of a party”. The rule states, “the court in its discretion upon motion may order a trial by jury of any or all issues.” [Emphasis mine] There are motions by parties and there are discretionary motions of the Court sua sponte. The rule does not say upon motion of a party. Neither does it say the Court will “grant” a trial by jury. It says a Court may “order” a trial by jury. Motions of others are granted. The Court acting sua sponte orders, not grants. I would not construe the rule to limit the power of the judge to order a jury trial. It should be remembered that all persons are not always represented by counsel and justice may require that in some instances jury trials be ordered for the benefit of the untrained even though no motion by a party is made.

It seems to be a peculiar quirk to establish as law that a Trial Judge, under Rule 39.02, is vested with discretion to deny the constitutional right of a trial by jury if it is late demanded, but has no discretion whatsoever but to grant the nonconstitutional right of a nonjury trial. See Caudill v. Mrs. Grissom’s Salads, Inc. (1976 Tenn.) 541 S.W.2d 101.

Therefore, I must dissent.

Done at Knoxville in the two hundred and second year of our Independence and in the one hundred and eighty-second year of our Statehood.