The opinion
ON PETITION TO REHEAR,
In this action the jury awarded to the plaintiff the sum of $1,000 as damages for personal injuries sustained from swallowing pieces of glass from a bottle of coca cola while it was being drunk by her from the bottle. No judgment was entered upon this verdict. The circuit judge sustained a contention made in the motion for new trial and dismissed the suit, holding that he should have granted the motion of defendant for a directed verdict in its favor upon the authority of Coca Cola Bottling Works v. Selvidge, 4 Tenn. App., 558 , conceiving it to be analogous and controlling, although he stated his belief that the ruling in the Selvidge Case ought to be modified ‘ ‘ at least to the extent that where there was a contention as to whether or not there was any opportunity for the glass to have gotten in there after it left the defendant and where there could be drawn an inference that it did not get in there after that, that matter could go'to the jury."
The plaintiff thereupon entered a motion for a new trial and it was overruled and judgment was rendered dismissing the suit.
This court has hitherto reversed the judgment of dismissal in this cause, holding, upon an analysis of all the Tennessee decisions upon this subject, that there was evidence requiring a submission of the issue to the jury, as the evidence as a whole did not point to two equally probable causes of the existence of the glass in the bottle. The plaintiff now insists that as the circuit judge expressly approved the verdict sustaining the charge of negligence, this court should reinstate that verdict and render a judgment thereon which should have been awarded by the circuit court. This question is not determinable by the rule'applicable upon appeal of a case tried without a jury. In this precise form it is res integra in Tennessee so far as we have been able to ascertain.
In Black v. Lumber Company, 7 Higgins (7 Tenn. Civ. App.), 151, and Chunn v. Flooring Company, 7 Higgins (7 Tenn. Civ. App.), 532, eases similar but not directly apposite, it was intimated that in some conceivable cases where motions for new trial had been over *446 ruled, verdicts might be reinstated and final judgments thereon be pronounced by the appellate court. The instant case supplies elements not contained in those cases.
In this ease the trial judge stated that he was entirely satisfied with the amount of the verdict; that he sustained the motion to direct a verdict on the authority of the Selvidge Case; that he overruled all of the motion for a new trial, except that ground that a directed verdict should have been entered. The defendant’s motion for a new trial included the propositions that the evidence preponderates against the verdict, and that there is no evidence to sustain the verdict. The trial judge declared that he felt that the case ought to go to the jury, as there was evidence that there was no opportunity for anything to have happened to the bottle after it left the defendant’s place up to the time when the plaintiff got it; and he was of the opinion “that there was no probability, at least no great probability, .that there was ever anything put'in that bottle after Simmons (the retail dealer) got it. ’ ’ However, he interpreted the Selvidge Case as ruling that although the glass was in the bottle, the undisputed fact that the bottling company used all approved methods to get it out — to clean the bottle — would bar recovery. We have held that if this was the ruling it has since been modified.
It is manifest that the trial judge approved the verdict on the preponderance of the evidence and believed that actionable negligence was shown, but he felt bound by an erroneous conception of the law. At last, this court has considered and determined this legal question; and if the trial judge had ruled otherwise on this question and denied a new trial, this court would have affirmed the judgment for the plaintiff. The trial judge also stated that in his opinion the defendant had had a fair trial, and we concur with him. This case, therefore, is not to be aligned with Nashville, Chattanooga & St. Louis Ry. v. Perry, 13 Tenn. App., 268 , and the eases therein reviewed, applying the rule that the appellate court can only reverse a judgment based upon the verdict of a jury, and award a new trial, where the trial judge did not express his approval of the verdict according to the preponderance of the evidence. The appellate court must know that the verdict of the jury has the approval of the judgment and conscience of the trial judge. “The judgment upon the verdict is not an idle ceremony, but is intended to convey to this court the approval of the trial judge of the weight and credibility of the witnesses as fixed by the verdict of the jury.” Hamburger v. Railroad Co., 138 Tenn., 123 , 196 S. W., 144 , 146. In the case before us these requirements were really satisfied. It would be no violence to the rule of those cases to enter a judgment in this court upon the verdict, instead of remanding for a new trial upon the evidence, *447 or even remanding for entry of sncli judgment in tbe circuit court; for not only was there no want of approval of the verdict as to the preponderance of the evidence as showing' a cause of action, but also the sole error was upon a rule of law applicable to the evidence. It was an error of law, and the trial judge is not subject to criticism for it, under the circumstances.
In Barnes v. Noel, 331 Tenn., 126 , 174 S. W., 276 , 277, it is said:
“The office of a motion for a new trial is not alone to secure another hearing', but to present the errors complained of for correction, if possible, without another hearing. 14 Enc. Pl. & Pr., 846; 2 Elliott on General Pr., section 987, cited and approved in Railroad v. Johnson, 114 Tenn., 632 , 88 S. W., 169 .” It seems logical, therefore, that if an error is committed in attempting to correct a supposed error of law, made upon the trial, the appellate court may reverse the action taken and enter such judgment as should have been entered below; for it would not be passing upon the facts but upon the law. The effect of our previous decision in this case is that the jury had a right to hold that the mere use of approved appliances to clean the bottles' was not determinative. The error occurred after the trial. The jury passed on the facts under a proper charge.
In Perkins v. Brown, 132 Tenn., 294 , 177 S. W., 1158 , 1160, L. R. A., 1915F, 723, Ann. Cas., 1917A, 124 (an action at law), the rule was adopted that in the exercise of appellate jurisdiction, when it is seen clearly that a due administration of justice requires it, and the only question at issue is the measure of damages, the appellate court, on reversal of a judgment for the plaintiff, will qualify the order of remand so as to determine only the question of damages. The cotirt said:
“If it is to the interest of the state that there be an end to litigation, the courts should not be slow to adopt this rule that looks to the preventing of further contest on phases of litigation or issues already well settled, the saving to litigants the costs incident to the re-litigation of such matters, and to the courts the time unnecessarily consumed therein.”
In a case where upon a former trial a verdict was rendered but was set aside upon motion for a new trial and bill of exceptions taken, the appellate court may, under chapter 106 of the Acts of 1875 (Code, sees. 8985, 8986), review the act of the trial judge in granting a new trial. The intention of this act was to give the excepting party the benefit of the former trial without regard to the merits of the case as developed on a subsequent trial. Barnes v. Noel, supra. In Gray v. Kent, Receiver, 5 Higgins (5 Tenn. Civ. App.), 519, the first trial resulted in a verdict for the plaaintiff, but this ivas set aside, not be *448 cause of any dissatisfaction with the verdict, but because of supposed error in instructions to the jury. A wayside bill of exceptions was taken. Upon the second trial a verdict was directed for the defendant. It was held that the trial judge was in error in setting aside the first verdict and granting a new trial. The Court of Civil Appeals reinstated the first verdict and rendered judgment for the amount of the first verdict without remanding the cause. Its decision was affirmed by the Supreme Court.
In our opinion, this is a proper case for reinstatement of the verdict and pronouncement of judgment thereon by the appellate court. No error was committed upon the trial, the motion for new trial was sustained only by a mistake of law made after the trial, and but for this mistake the motion for a new trial would have been overruled. There was evidence to sustain the verdict. The cases of Perkins v. Brown, Cray v. Kent, Receiver, and other cases similar thereto, present impressive analogies showing the modern tendencies of our law to promote the due administration of justice and save time and expense. The defendant has had a fair trial by jury. The practice now adopted does not tend to any encroachment upon the functions of the jury. The practice is not unknown in certain other jurisdictions. Ellis v. Railroad Company, 120 Wis., 645 , 98 N. W., 942 ; Monahan v. Schwartz, 128 Ky., 375 , 108 S. W., 285 ; Gartner v. Goodman, 201 App. Div., 177 , 194 N. Y. S., 258. To remand this cause for a new trial would but subserve the ends of technicalities, which are to be applied only as “instruments in the hands of justice to serve her ends, not cords to bind her.” Lowry v. Railroad Co., 117 Tenn., 507 , 101 S. W., 1157 , 1160, 6 L. R. A. (N. S.), 887, 119 Am. St. Rep., 994 .
Although no judgment was rendered in the circuit court upon the verdict for the plaintiff, a final judgment — a judgment of dismissal — was pronounced from which the appeal in error could be taken. This case is therefore distinguished from those cases (as Butcher v. Palmer, 4 Cold., 248 ; Sharp v. State, 117 Tenn., 537 , 97 S. W., 812 ; Briggs v. Clawson Brothers & Nashville Trust Co., 3 Tenn. App., 146 ; Cobble v. International Agricultural Corporation, 2 Tenn. App., 356, 360 , and Nolin v. State, 6 Cold., 12 ), in which the rule was declared and applied that an appeal in error from the circuit court in an action at law lies only from a final judgment.
The petition to rehear is granted. The order remanding the cause for a new trial will be set aside, and a judgment will be entered in this court in favor of the plaintiff in error against the defendant in error for $1,000 and all costs of this cause.
Faw, P. J., and Crownover, J., concur.