The opinion
*219 Hale, Judge
(dissenting).
As I understand appellate procedure it must affirmatively appear that the trial judge has approved the verdict of the jury before we can apply the material evidence rule.
In State ex rel. Richardson v. Kenner, 172 Tenn. 34 , 109 S. W. (2d) 95, 96 , there is approved the following-statement, viz.:
“The case had passed from the jury, and had reached that state in which the judge must approve or disapprove the verdict; and, ‘in discharging that exclusive and independent duty, he must unavoidably determine for himself, after giving all due weight to the verdict of the jury, whether or not the evidence # * * was sufficient to sustain that verdict. ’ ’ ’
For the trial Judge to say that he would not have disturbed the Jury’s verdict had it been for the defendants, indicates to my mind that the trial judge was controlled entirely by the verdict and that he did not exercise that exclusive and independent judgment required of him. In short, it was not the preponderance of the evidence but the action of the jury that was of sole importance.
I would reverse for this reason.