author: GODDARD, Judge.

text:
    Paul M. WATSON and wife Ruth Watson v. UNITED AMERICAN BANK IN KNOXVILLE.
    Court of Appeals of Tennessee, Eastern Section.
    July 26, 1979.
    Certiorari Denied by Supreme Court Oct. 22, 1979.

      W. F. Shumate, Jr., Knoxville, for defendant-appellant.
    Thomas Privette, Jr., Ivan T. Privette, Knoxville, for plaintiffs-appellees.
   OPINION

GODDARD, Judge.

United American Bank in Knoxville, Defendant-Appellant, appeals a judgment of the Chancery Court for Knox County which determined that it had purchased a deed of trust note in a fiduciary capacity and that Paul M. Watson and wife Ruth Watson, Plaintiffs-Appellees, its co-tenants in common, were to be decreed a one-half interest in the real estate securing the note upon their paying some $24,000, being one-half of the purchase price. The Defendant insists that the Court was in error in finding that it occupied a fiduciary relationship with the Plaintiffs. The Plaintiffs purport to prosecute a protective appeal, insisting that if this Court sustains the Defendant’s assignments of error that it is entitled to the alternative relief sought, which was to have a foreclosure sale held pursuant to the terms of the trust deed securing the note set aside and the property resold after notice to all parties.

The facts, which for the most part are stipulated, are succinctly set out in Appel-lees’ brief as follows:

By Deed dated April 2, 1973, Robert L. Huber, Trustee, (herein called Huber) conveyed to David L. Alley (herein called Alley) a valuable tract of land located at the North end of Knox Lane in the 33rd Ward of the City of Knoxville, for a total purchase price of approximately $94,-000.00, receiving approximately $22,-000.00 in cash, and a purchase money note for approximately $72,000.00, Alley taking title to a one-half undivided interest individually and to a one-half interest as Trustee. Alley executed a Trust Deed dated April 11, 1973, covering the property in question and securing the payment of said purchase money note for approximately $72,000.00 (herein referred to as Alley-Huber Trust Deed). Alley subsequently acquired by a series of conveyances the title to the other one-half interest in his individual name and became the owner individually of all of said property.
By Deed dated July 8,1976, and pursuant to a contract dated June 30, 1976, Alley conveyed to Paul M. Watson and wife, Ruth Watson (herein called Wat-sons), a one-half interest in said property for which Watsons paid a total of $24,-000.00 consideration. This Deed did not mention the Alley-Huber Trust Deed, but the Watsons were aware of the Trust Deed and purchased said interest subject thereto.
Alley executed a Trust Deed dated December 17, 1976, to United American Bank securing his note for $50,000.00, payable to said Bank, payable on demand or if no demand, two years after date (herein called Alley-U.A.B. Trust Deed).
On May 24, 1977, United American Bank foreclosed the Alley-UAB Trust Deed and being the sole bidder, bid the property in for $20,000.00, taking a Trustee’s Deed for the one-half interest covered by the Alley-UAB Trust Deed, said Trustee’s Deed being dated June 2, 1977.
At this point, on June 2, 1977, United American Bank became a tenant in common, owning a one-half interest in the subject property, with Paul M. Watson and wife, Ruth Watson, who, as tenants by the entirety, owned the other one-half interest.
On June 6,1977 (four days after United American Bank acquired the one-half interest by the foreclosure of the Alley-UAB Trust Deed), United American Bank, without notice to the Watsons, purchased the Note and Trust Deed from Alley to Huber, which then had an unpaid principal balance of approximately $48,-000.00. United American Bank then acted immediately to commence foreclosure of the Alley-Huber Trust Deed by publishing notice of foreclosure for three times in The Knoxville News-Sentinel and by posting a copy of the notice at the front door of the Knox County Courthouse. It gave no notice of any kind to the Watsons and did no special advertising to obtain a purchaser for the property. Unknown to the Watsons, the foreclosure sale was held on July 11, 1977. The United American Bank, the sole bidder at the sale, bid the property in for $30,000.00. A Trustee’s Deed was executed on July 20, 1977, conveying only a one-half interest in the property to United American Bank. A Correction Trustee’s Deed dated May 16, 1978, was executed in favor of United American Bank as purchaser, said Correction Deed stating that it conveyed the remaining one-half interest in the subject property.
All instruments referred to herein-above were recorded shortly after they were executed, with the exception of the last instrument, which was recorded on September 22, 1978. However, no question is involved in this suit with respect to recording deeds and their effect on any priority between the parties.

We turn now to the Defendant’s assignments of error. Although there are four in number all except the last, which complains of the taxing of costs, in reality present one question: Did the Trial Court err in finding a fiduciary relationship?

Tisdale v. Tisdale, 34 Tenn. 595, 598 (1855), the leading case on the subject, laid down the general rule that one tenant in common cannot buy in common property at a tax or foreclosure sale or buy in an outstanding title or other claim except for the benefit of all. In Tisdale, the parties acquired the interest in the property by descent and the Court was careful to point out, albeit by dictum, that the rule is not necessarily applicable in cases where title was acquired at different times, even though from the same source:

He was jointly interested in the land with the complainants, as tenant in common by descent. As such, he will be regarded as acting for all in the removal of an encumbrance, or perfecting the title, unless the contrary is clearly made to appear. White & Tudor Ld.Cas. 56. Tenants in common by descent are placed in a confidential relation to each other, by operation of law, as to the joint property, and the same duties are imposed as if a joint trust were created by contract between them, or the act of a third party. It may be different where they claim title by distinct purchases, even of the same original title, but that is not the case before us. Being, then, interested with and for each other in the property, each one is prohibited from acquiring rights in it antagonistic to the others. 1 White & Tudor, 53. Being associated in interest as tenants in common by descent, an implied obligation exists to sustain the common interest. This reciprocal obligation will be vindicated and enforced in a court of equity, as a trust. These relations of trust and confidence bind all to put forth their best exertions, and to embrace every opportunity to protect and secure the common interest, and forbid the assumption of a hostile attitude by either; and, therefore, the purchase by one of an outstanding title, or an encumbrance upon the joint estate, in his own name, will enure to the equal benefit of all, but they will be compelled to contribute their respective ratios of the consideration actually given. 6 Dana, 171, 176, and 5 Johns.Ch. 388, where Chancellor Kent, in the case of Vanhorn v. Fonda, lays down the doctrine ably and correctly: “The condition of equal contribution to the expense of the purchaser has been complied with in the case before us, by the application of the proceeds of the sales of the common property. If this had not been so, and the money not brought into court, the same would be raised out of the land by sale.”
There may be cases where one tenant in common may purchase in an outstanding title for his own benefit, but this is not one of them, nor is this a case of that kind; but it is one where an encumbrance of a mortgage was removed. In such a case we are aware of no exception to the application of the rule stated.

In Sharp v. Williams, 1 Tenn.Cas. 76 (Shannon, 1858), a case decided three years after Tisdale, the Court, also by dictum, suggests that the rule should apply even when the property is acquired by the co-tenants from different sources.

In the next case which gives the question any particular attention, King v. Rowan, 57 Tenn. 675, 682 (1873), the Court appears to retreat to the position of Tisdale:

We proceed to examine the second question. It was presented in the case of Tisdale v. Tisdale et als., 2 Sneed, 598-9, as to tenants in common by descent. In the opinion of Judge Wright, he says of the purchasing tenant in that case: “He was jointly interested in the land with complainant as tenants in common by descent, as such he will be regarded as acting for all in the removal of incum-brances, or perfecting the title, unless the contrary is clearly made to appear.” He lays down the general rule as broadly as the authorities will warrant in cases of tenants in common by descent. He adds, however, that “It may be different where they claim title by distinct purchases, even if the same original title.” 599. He then adds, on page 600, there may be exceptions, or to use his language, “There may be cases where one tenant in common may purchase in an outstanding title for his own benefit, but this is not one of them.” The rule is laid down by Chancellor Kent, in Home v. Fender, 5 J.C.R. 388 and 407, in the same guarded and qualified terms as given by Judge Wright, where the Chancellor says, “I will not say, that one tenant in common, may not, in any case purchase in an outstanding title for his exclusive benefit,” but lays down the rule strongly against the right to do it. In case of two devisees in possession under an imperfect title from their common ancestor, he says, it would be immoral and inequitable to allow it in such case, and so it is said L.C. in Eq., 95, that one co-tenant shall not sweep away the title of the others, unless some special circumstances occur in the case. These authorities, while laying down the rule, to which we assent, sufficiently indicate, and in fact clearly recognize it as subject to qualifications and exceptions; one of which is, where the opposite of a trust is made clearly to appear; the other, where the parties hold by purchase different titles, even though from a common source, or where special circumstances occur in the case. (Emphasis supplied.)

In a still later case, Gass v. Waterhouse, Tenn.Ch.App., 61 S.W. 450, 453 (1900), the Court suggests that the application of the rule should not be dependent upon the manner of acquisition, but rather on the relationship of the parties:

The general rule unquestionably is that the purchase of an outstanding title or claim by one tenant in common must and does inure to the benefit of all, and that all are entitled to the benefits and protection of the outstanding title so purchased. It is also true that there are exceptions to this rule. Counsel for the complainant insist that such is not the result if the parties hold by different purchases, and counsel cite and rely upon the cases of King v. Rowan, 10 Heisk. 683; Tisdale v. Tisdale, 2 Sneed, 598; Burns v. Headerick, 85 Tenn. 103, 2 S.W. 259. The cases cited and relied upon do recognize an exception to the general rule, but they do not hold that the simple fact of purchases at different times so changes the relations and duties of tenants in common as to absolve them from their trust relations to each other, and as to always constitute an exception to the rule above mentioned. But these cases are simply based upon the principle that the tenants in common may at times occupy such distinct and adverse relations, well known to each other, as to abrogate all trust obligations, and that, where such adverse attitudes are known and recognized, one tenant in common may purchase for his own benefit an outstanding title in such a way as that the same will not inure to the benefit of the other tenants in common, and as that the implication will not at least arise that the purchase was so made. It appears clearly that these parties were tenants in common at the time of these purchases made by Gass. As we say, they had before that a joint and common possession through a tenant. There was nothing to indicate or give notice of any adverse interest. It appears from this proof that the complainant, Gass, at least to a part of the land, was acting as agent for the other tenants in common, that he did lease out or grant rights to cut tan bark upon this land, and we are satisfied that the agreement was that he was to look after taxes in Bledsoe county. Such being the case, he occupied a trust position and attitude towards the other tenants in common, and it presents an ideal case for the enforcement of the rule that the purchase by one tenant in common inures to the benefit of all, and we are therefore of the opinion that there is no error in the decree of the chancellor upon this point, and that the same should be affirmed, and we so hold also as to the title purchased.

In attempting to resolve and harmonize the foregoing opinions we have reviewed a number of cases which discuss the rule. Some of these cases involve property which was commonly acquired, and others property which was not. None of these, however, attempts to speak to the specific problem raised in this case and addressed in the four cases which we have discussed individually. However, we have had the benefit of the annotation found in 54 A.L.R. at page 874, which suggests that by the weight of authority the rule is only applicable where the co-tenants derive title by descent, devise o'r a single conveyance from a common grantor. While this would undoubtedly offer a clear and unambiguous test, we do not believe in light of Gass that we can conscientiously adopt it as the rule for this State. Instead, we believe that the Tennessee rule, as gleaned from all of the authorities which we have examined, is as follows: When property is held by tenants in common, having been acquired at the same time from a single source, the parties are bound by a fiduciary relationship and when property is otherwise acquired such a relationship does not arise absent, in both cases, proof which would compel a contrary result.

Applying the rule above enunciated to the facts of the present case, it follows that because the property was acquired at different times from different sources, and because there was no proof showing any relationship of trust or confidence, the Trial Court erred in finding that the parties occupied a fiduciary relationship. Therefore, the assignments of error directed thereto are sustained.

This brings us to the assignment of error filed by the Plaintiffs. In their protective appeal, as previously noted, the Plaintiffs’ alternative theory of relief seeks to set aside the sale because of the grossly inadequate price.

At the outset, the Defendant moves to dismiss this appeal because no appeal was prayed or granted and the appeal taken by the Defendant was not broad but a limited one which would not accommodate error assigned by the Plaintiffs.

While we are inclined to agree with the Defendant’s position, we note that the Plaintiffs are entitled to a writ of error as a matter of right, and we shall treat their appeal as if being here upon writ of error.

The general rule regarding setting aside a foreclosure sale is found in the case of Pugh v. Richmond, 58 Tenn.App. 62, 77, 425 S.W.2d 789, 796 (1967), which quoted with approval from an earlier case of Mitchell v. Sherrell, 11 Tenn.App. 210 (1929), as follows:

“The general rule is that mere inadequacy of price does not in itself invalidate or affect the sale, otherwise properly conducted, unless it is so great as to shock the conscience of the court; and a court will be particularly inclined to set the sale aside when in addition to inadequacy of price other circumstances exist rendering it inequitable for the sale to stand.”
******
“Because sales by mortgagees under powers are much liable to abuse, they are most jealously watched by courts of equity, and upon slight proof of unfair conduct they will be set aside.”

Although the Chancellor was not required to rule on the question presented by this assignment of error, he did express his opinion that the purchase price was not so inadequate as to shock his conscience. Perhaps our conscience, at least in this area of concern, is more delicate than that of the Chancellor. In any event, we are of the opinion that a sale price of $30,000 for a tract of land which, under the most conservative appraisal in the record, was worth $90,000, does demonstrate such an inadequacy. Moreover, even if we were to assume the inadequacy was not so great as to shock the conscience of the Court, we think it is sufficiently great — when coupled with the failure of the Defendant to give notice to the Plaintiffs of the impending sale so that they might protect their interest — to render it “inequitable for the sale to stand.”

The assignment of error of the Plaintiffs is accordingly sustained and the cause remanded for further proceedings not inconsistent with this opinion. The costs of appeal are adjudged one-half against the Plaintiffs and one-half against the Defendant and its sureties.

PARROTT, P. J. (E.S.), and FRANKS, J., concur.

      . Perkins v. Johnson, 178 Tenn. 498, 160 S.W.2d 400 (1942); Gentry v. Gentry, 33 Tenn. 87 (1853); State v. Allen, 27 Tenn.App. 357, 181 S.W.2d 375 (1943).

      . Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695 (1956); Woods v. Richardson, 190 Tenn. 662, 231 S.W.2d 340 (1950); Hall v. McReynolds, 181 Tenn. 515, 181 S.W.2d 761 (1944).

      . In reaching this conclusion we are aware that inadequacy of consideration standing alone is insufficient to set aside a sale, Mitchell v. Sherrell, supra, and that the trust deed which was foreclosed did not require actual notice.


source: Caselaw Access Project

author: MATHERNE, Judge.

license: Public Domain

text:
    Mary V. NEWSOM and Donald G. Newsom, Sr.; Donald G. Newsom, Jr., and Dawn Newsom, Minors by next friend Donald G. Newsom, Sr., Plaintiffs-Appellants, v. Sidney MARKUS, Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section.
    July 26, 1979.
    Certiorari Denied by Supreme Court Oct. 22, 1979.

      James R. Ralph, Memphis, for plaintiffs-appellants.
    Neely, Green & Fargarson, Memphis, for defendant-appellee.
   MATHERNE, Judge.

The plaintiff, Mary V. Newsom, accompanied by the minor children, Donald G. New-som, Jr., and Dawn Newsom, was driving her automobile south on White Station Road when the defendant, Sidney Markus, traveling in the same direction pulled partly out of his lane of traffic and the left bumper of his vehicle scraped down the right side of the plaintiff’s vehicle.

The plaintiff and the two minor children sued for damages due to personal injuries allegedly received in the collision, and the plaintiff Donald Newsom, Sr., the husband of Mary V. Newsom, sued for medical expenses incurred on behalf of his wife and children and for loss of consortium of his wife and loss of services of his children. The lawsuits brought by the two minor children were settled prior to trial, leaving only the lawsuits brought by Mary V. New-som and her husband, Donald G. Newsom, Sr., to be tried.

The trial judge, with the consent of the defendant, directed a verdict in favor of the plaintiff on the issue of liability and charged the jury to return their verdicts in the following form:

In the first case you will return your verdict: We the jury find for the plaintiff, Mary V. Newsom, and assess her damages at so much, naming the amount in dollars and cents.
In the second case your verdict should read and be endorsed on the jacket: We the jury find for the plaintiff, Donald G. Newsom, Sr., and award his damages at so much, naming the amount in dollars and cents.

The jury returned the following verdicts:

We, the jury, find for the plaintiff, Donald G. Newsom, Sr., and assess his damages in the amount of $950.00.
We, the jury, find for the plaintiff, Mary V. Newsom and assess her damages no dollars.

Judgments were entered on the verdicts, and, after their motion for a new trial was overruled, the plaintiffs appealed and properly raise the following issues: (1) the verdicts are inadequate; (2) the verdicts are contradictory; (3) the court improperly admitted evidence that Mary V. Newsom was totally temporarily disabled at the time of the collision; (4) the court erred in giving certain instructions and refusing others on the measure of damages where the issue is the aggravation of a pre-existing injury or physical condition; and (5) the court erred in refusing to furnish the jury with the specific amounts of medical expenses when the jury requested that information during its deliberations.

The facts of the collision need not be dwelt upon except as those facts might reflect upon the personal injuries claimed by Mrs. Newsom. In this respect the record reflects that the impact was slight with little damage to the vehicles.

Mrs. Newsom has a history of trouble with her back. In 1955, she injured her back while working at Walgreen’s and disc surgery was performed by Dr. Robert Ras-kind. While working at Montesi’s in 1971, she slipped and fell on the floor. As result of that fall she had disc surgery by Dr. D. J. Canale. In September 1975, while working at Boise Cascade, her back began bothering her. She was hospitalized and on October 13, 1975, a spinal fusion was performed by Dr. D. J. Canale and Dr. Daniel J. Scott, Jr.

Mrs. Newsom testified that she thought she was recovering from the spinal fusion, but the testimony of her doctors refutes that contention. Her testimony is rather conflicting on that point in that she claims that after the automobile accident on April 15, 1976, she could not do her housework as before and that she experienced pain in an area of her back above the spinal fusion which she had not previously felt. She testified on direct examination as follows:

Q. Mrs. Newsom, since the automobile accident in April of 1976, have you had any problems with the lower portion of your back where the fusion took place?
A. No, Sir, I have not.
Q. Since the April, 1976 automobile accident, have you at any time been able to go back to the activities that you enjoyed back before September of ’75 ? (Emphasis added)
A. No, sir, I have not.
Q. Okay. Can you tell us any things, any particular activities that you have, entertainment or work or any type of activities that you could partake in at that time and cannot partake in at this time?
A. I used to enjoy dancing and I can’t do that any more. And I used to enjoy just walking and shopping and I can’t do that any more.
Q. All right.
A. I used to could clean the house and I can’t do that any more.
Q. Who has been cleaning the house?
A. My sixteen year old daughter.
Q. All right. Are you able to participate in that at all?
A. I help, but I can’t do it all by myself. She has to do most of it.
Q. All right. And what was your situation as far as housework back before September of ’75 ? (Emphasis added)
A. Before I had the fusion, I did all my housework, I could do the cleaning and the cooking and the scrubbing or whatever I had to do. I could even run the vacuum cleaner. Now, I can’t do any of that at all. (Emphasis added)

Mrs. Newsom testified that she returned to her employment eleven months after the automobile accident and that she is now working full time eight hours a day, five days a week.

Dr. Daniel Scott, an orthopedic surgeon in Memphis, Tennessee, testified that on October 13,1975, he did the spinal fusion on Mrs. Newsom. She was sent home on October 24th and told to return in six weeks. She returned on the 12th of December, again on January 26,1976, and on March 8, 1976. She gave him the history of having pain down the leg and across the back and up the end of the incision and above the right paravertebral muscle. He next saw her on April 26, 1976, for Dr. Canale who had hospitalized her after the automobile collision. He saw her on June 11, 1976, on July 23, 1976, and on September 24, 1976. He stated that the spinal fusion appeared solid and was progressing as expected. He said Mrs. Newsom complained of more pain since the accident. He was not asked and he ventured no opinion on whether Mrs. Newsom’s condition was aggravated by the automobile collision. He wrote a letter in February 1976, two months before the collision, that in his opinion Mrs. Newsom would not be able to return to work for 12 months from that date. Mrs. Newsom did return to work about 11 months from that date.

Dr. D. J. Canale, a neurosurgeon in Memphis, Tennessee, testified that he first saw Mrs. Newsom in May 1971 at the request of Dr. Scott. At that time he did a myelo-gram that was normal. In July 1971 he and Dr. Scott performed disc surgery on Mrs. Newsom, and she did well postoperatively. In September 1975, Mrs. Newsom came to him complaining of recurrent pain in the back going into the right extremity. At this time she had evidence of sciatica and she was hospitalized. She was treated conservatively and sent home. In October 1975, she was re-admitted and underwent a disc exploration and fusion. Dr. Canale followed up on her and made the following statement as to her condition as result of his examination of her on April 12, 1976, three days before the automobile collision:

She was continuing to have pain even after her surgery. I followed her through April 12th, and at which time she was six months post-op. I stated at that time that as far as her back was concerned, she was a failure as far as her disc surgery and that she was still complaining of a lot of pain in the right lower extremity going into the foot and complained of pain in her incision, and I explained to her at this time that I didn’t feel there was anything further from a neurosurgical standpoint to do for her.
Then, I saw her back about two days later, she was involved in an automobile accident.

Dr. Canale saw Mrs. Newsom repeatedly during 1976. He admitted her to St. Joseph Hospital in September 1976 for traction, physical therapy and muscle relaxants. He saw her in October and November 1976, and in January 1977, her last visit being in April 1977. At the time he examined her after the accident he felt that she “had sustained an acute lumbo-sacral strain on an already irritable back. . . . ” He stated that in his opinion “she probably had sustained an additional disability as a result of the accident in the range of ten per cent to the body as a whole. . . .” Dr. Canale also testified, as follows:

Q. Doctor, how would you describe this lady’s back to the jury following that surgery in 1975?
A. Well, she was not helped by the surgery. She was still complaining. My notes indicate in April of 1976 she was complaining as much as she was before surgery. She was six months post-op, but she was still complaining. (Emphasis added)
Q. Doctor, the performing of the fusion by Dr. Scott was an operation that was designed to give her some relief from this pain that she was experiencing in her low back, was it not?
A. Yes, sir, it was.
Q. When you say the operation was a failure, you mean that neither the operation that you performed nor the fusion really helped her any?
A. Yes. To qualify that a little bit, what I really mean, as far as I was aware, the fusion took well, and there was no problem with the surgery, but our combined efforts had not relieved the patient’s symptoms. (T.R. 181-182)
******
Q. So I guess what I am really asking you about and what I want you to talk with the jury about here is is there any way that you could say with any degree of medical certainty that this lady would not have continued to have these complaints of pain even if she had not been involved in this accident?
A. There is no way I could say that, because she was having the pain when she had her accident. (T.R. 184 — 185)

We conclude that there is material evidence in the record from which the jury could find that Mrs. Newsom did not sustain any personal injury nor aggravation of a pre-existing condition as a result of the automobile collision caused by the defendant.

The plaintiffs challenge the verdicts in this case as being both inconsistent and contradictory. If, after an examination of the terms of the verdicts, the court is able to place a construction there on that will uphold the verdict, it is incumbent upon the court to do so. Briscoe v. Allison (1956) 200 Tenn. 15, 290 S.W.2d 864.

In challenging the verdict in the case of Mrs. Newsom, the plaintiffs rely upon Clements v. Veterans Cab Co. (1960) 48 Tenn.App. 152, 344 S.W.2d 572, wherein this Court held that in a personal injury action a jury verdict for the plaintiff with no damages awarded is internally inconsistent and erroneous on its face. In Clements the entire issue of a cause of action for damages due to personal injuries was submitted to the jury. That cause of action required proof of (1) a duty to the plaintiff, (2) breach of that duty by the defendant, and (3) resulting personal injury to the plaintiff. When the jury found for the plaintiff it resolved each of those issues in favor of the plaintiff including a finding of resulting personal injuries. It would, therefore, be incumbent upon the jury to find damages in some amount.

In the present lawsuit the entire cause of action was not submitted to the jury. The trial judge directed a verdict in favor of the plaintiff on the issue of liability, leaving to the jury to determine if the plaintiff suffered any personal injury, and if so to assess damages. This was proper because in order to support the action there must be not only the negligent act, but a consequential injury which is the gravamen of the charge of negligence. Colsher v. Tennessee Electric Power Co. (1935) 19 Tenn.App. 166, 84 S.W.2d 117. The fact that the issue of injury was left to the jury is shown by the following excerpts from the judge’s charge:

At the end of all the proof in this cause the court has directed a verdict for the plaintiffs. That means to say that you have no issue in this case as to liability. The only issue in this case is the nature and extent of the damage and injury. (Emphasis added)
* * * * * *
Now since I have directed a verdict on the part of liability, your only question is to damages. Under our law a party who has been injured as a direct and proximate result of the negligent act of another is entitled to recover an amount of money that you say would fairly and adequately compensate him or her for the injuries that you find were negligently inflicted upon him or her, taking into consideration the nature and extent of the injuries, their kind, character, and duration, the amount of mental and physical pain the plaintiff has suffered due to his or her injuries. (Emphasis added)

We, therefore, conclude that in the case of Mrs. Newsom the jury by its award of no damages found that Mrs. Newsom was not injured in the collision and that she did not suffer an aggravation of pre-existing injuries or disability. As heretofore noted there was material evidence before the jury upon which that finding could rest. It must be noted that the jury was directed to “find for the plaintiff” in each case. We, therefore conclude that the verdict in the case of Mrs. Newsom is not erroneous on its face.

The plaintiff argues that the verdicts are contradictory and inconsistent for the further reason that the award of damages to Mr. Newsom demands an award of damages to Mrs. Newsom. Under the facts, we disagree. We fail to find a reported Tennessee decision on the issue, but it has been held that a party is entitled to recover reasonable medical expenses for examinations, etc., in an effort to determine if personal injuries were sustained as result of defendants negligence, even though it develops that the party suffered no personal injury. See Comstock v. Ramirez (Tex.Civ.App.1975) 520 S.W.2d 475; Wise v. Towse (Mo.App.1963) 366 S.W.2d 506; Loret v. Armour & Co. (La.App.1947) 32 So.2d 55; Whitney v. Akers, 247 F.Supp. 763 (1965). Considering the fact that Mrs. Newsom was then recovering from a spinal fusion, temporarily totally disabled from her employment and complaining about pain in her back, it was reasonable for Mr. Newsom to take her to a hospital and have necessary examinations, X-rays and other diagnostic procedures to determine if she suffered injury in the collision. This expense flowed naturally from the tortious act of the defendant and is recoverable even though it be found by the jury that Mrs. Newsom in fact suffered no injury.

The record reveals that Mrs. Newsom was hospitalized from April 21, 1976 to April 28, 1976, and was seen by Dr. Scott and Dr. Canale. The hospital bill was $807.45, Dr. Scott’s bill was $30.00 and Dr. Canale’s bill was $60.00 during this time. This results in a total amount of $897.75 incurred by Mr. Newsom to have Mrs. New-som examined and evaluated as to injury caused by the collision. There are additional medical bills incurred after April 28, 1976, but those bills are not material to the issue at hand.

We note that the jury during its deliberation asked the trial judge for the exhibits reflecting medical expenses. The trial judge refused the request and told the jurors that they must do the best they could from what they remembered of that evidence. In civil cases the trial judge may, in his discretion, allow the jury to take the exhibits into the jury room for their consideration during deliberation. T.C.A. § 20-1332. We can not say that the trial judge abused his discretion in this respect.

The jury awarded Mr. Newsom $950 damages. We hold that this award is justified by the proof of medical expenses incurred for the initial examination and evaluation of Mrs. Newsom after the accident. We do not know that the jury made this award for that purpose. However, when we consider the jury’s request for the medical expenses and the amount of the award, we can reasonably conclude that the jury meant to compensate Mr. Newsom for those expenses. The award exceeds the proven medical bills by only $52.25, which amount could be reasonably allowable as expenses of Mr. Newsom going back and forth from the hospital during those seven days that Mrs. Newsom was hospitalized. We, therefore, approve the verdict rendered in favor of Mr. Newsom.

The plaintiffs claim error wherein the trial judge permitted the cross-examination of Mrs. Newsom as to her pre-exist-ing disability. The plaintiffs on direct examination brought those issues up and it was proper to allow the defendant to pursue this matter on cross-examination.

The complaints levied against the jury charge of the trial judge on the issue of the measure of damages applicable to Mrs. Newsom’s injuries due to her pre-ex-isting injury or disability are not here material. The jury found that Mrs. Newsom was not injured nor was her pre-existing injury or disability aggravated. The jury did not reach the issue of the amount of damages in her lawsuit and the charges given and refused, if erroneous, would have no bearing on the outcome.

It results that the judgment based upon each verdict is affirmed and this lawsuit is remanded to the trial court for the enforcement thereof. The cost in this Court is adjudged against the appellants.

SUMMERS and EWELL, JJ., concur.


text:
    Sam TEAGUE and/or Sam Teague Ford, Inc., Plaintiffs-Appellees, v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    Court of Appeals of Tennessee, Western Section.
    Sept. 18, 1979.
    Certiorari Denied by Supreme Court Oct. 22, 1979.

      W. W. Lackey, Lackey & Lackey, Savannah, for defendant-appellant.
    James A. Hopper, Ross & Hopper, Savannah, for plaintiffs-appellees.
   MATHERNE, Judge.

The plaintiffs sue the defendant insurance carrier to recover collision damage to a 19-foot Cobalt inboard-outboard pleasure motorboat owned by the plaintiff corporation and insured in the name of the individual plaintiff, Sam Teague, who owns 100% of the common stock of the plaintiff corporation. The chancellor held for the plaintiffs and entered judgment against the defendant insurer. The insurer appeals insisting that the chancellor erred in: (1) holding that the insurer was estopped to deny liability under the policy; (2) failing to find that the policy was void because Sam Teague represented himself as the owner of the boat whereas in fact the boat was owned by the corporation and used for business purposes; (3) permitting the plaintiff to amend the complaint to show “Sam Teague and/or Sam Teague Ford, Inc.” as plaintiffs; and (4) finding that the amount of damage was $6,561.20 instead of $2,307.95.

The boat was kept at Pickwick Lake and it was used by the employees of Sam Teague, Inc., their families and friends. About two months after the boat was purchased, the sales manager of Sam Teague, Inc., his family and friends were using the boat when, during darkness, it was driven into and against a pier. The collision caused considerable damage to the pier, threw all occupants of the boat into the water and damaged the boat. The claims for personal injury sustained by the passengers were settled under the policy provisions as was the damage to the pier. The parties could not agree on the amount necessary to repair the boat and this lawsuit was originally brought by Sam Teague Ford, Inc., seeking judgment for damages to the boat.

The insurer moved to dismiss because it had not issued a policy to Sam Teague Ford, Inc. The plaintiff thereupon amended the complaint to name Sam Teague as the plaintiff. During the trial it developed that the owner of the boat was Sam Teague Ford, Inc. The insurer then moved for permission to amend its answer to deny liability because the fact of ownership had been misrepresented to it and the fact that the boat was owned by the corporate plaintiff and used in its business increased the risk of loss. The plaintiffs then amended the complaint to name as plaintiffs “Sam Teague and/or Sam Teague, Inc.” The chancellor held that the lawsuit was brought by “Sam Teague and Sam Teague Ford, Inc.,” and he gave judgment for the “plaintiffs.”

It is established in Tennessee that the owner of 100% of the common stock of a corporation has an insurable interest in specific items of property owned by the corporation. American Indemnity Co. v. Southern Missionary College (1953) 195 Tenn. 513, 260 S.W.2d 269. See also 4 Appleman, Insurance Law and Practice, § 2456 (1969); 43 Am.Jur.2d Insurance § 496 (1969). We therefore hold that when the original complaint was amended to name Sam Teague, the named insured, as the plaintiff, the lawsuit was properly before the chancellor. The naming of “Sam Teague and/or Sam Teague Ford, Inc.,” as plaintiff was sur-plusage but not fatal to the cause of action. Any judgment rendered would be in favor of Sam Teague.

An issue to be determined in this lawsuit is whether Sam Teague misrepresented the true ownership of the boat and the purpose for which it would be used. We can readily understand that the risk of loss assumed on a boat owned by a corporation for the purpose of use by its employees and their families and friends could be much greater than the risk of loss assumed on a boat owned by an individual and used by the owner and those to whom he gives permission. It is notable that the defendant insurer does not insure corporate property.

Sam Teague testified that he advised the insurer’s agent that the boat was owned by Sam Teague Ford, Inc., and that it would be used for the purposes of that corporation. He stated that he was unaware until after the accident that the policy named Sam Teague as the named insured. We must hold that this evidence is countermanded by the statements in the application for the policy signed by Sam Teague. The application shows Sam Teague as the named insured. On the other hand the application does not require an answer as to who owns the property insured. If the insurer does not insure corporate property, it would appear that the application for insurance should be so designed as to require a statement of ownership. The face of the application shows Sam Teague as the named insured which, under the authorities cited, is permissible because he owned 100% of the corporation which owned the boat.

The insurer’s agent testified that Sam Teague did not tell him that the boat was owned by the corporation. It must be here noted that the agent did not testify that Sam Teague gave a false statement as to the ownership of the boat, and as heretofore noted the application did not ask that question. The agent’s secretary testified that after the collision Sam Teague called her by telephone and asked that the named insured be changed from Sam Teague to Sam Teague Ford, Inc. Sam Teague denied that statement. The premium on the policy was paid by a check drawn on Sam Teague Ford, Inc.

The chancellor found that the insurer was estopped to deny coverage. Looking to the cases cited by the chancellor in his memorandum opinion, we conclude that the chancellor found that the agent was negligent in taking the application and that the plaintiff was misled to his detriment by the issuance of the policy. We do not think the controversy is controlled by the doctrine of estoppel. It appears to this Court that the evidence preponderates in favor of the plaintiff on the issue of whether the plaintiff misrepresented the true ownership of the boat. Under the record, Sam Teague made no representation that he owned the boat; he was not asked the question. The plaintiff had an insurable interest in the boat, and if corporate ownership would bar the issuance of the policy, the onus was on the insurer to inquire about the ownership of the boat. We, therefore, hold Sam Teague, the named insured, is entitled to recover under the policy.

The issue of damages was hotly contested in an argumentative sort of way. On the amount of damages recoverable the policy provides that:

In the event of damage to plastic, glass fiber, plywood or other laminated portions of the insured boat, arising as a result of perils insured against, this Company shall not be liable for more than the cost of making repairs in accordance with customary or generally accepted shipyard repair practices on damaged plastic, glass fiber, plywood or other laminated construction, or at the option of this Company, liability shall be limited to an amount not exceeding the cost of making repairs in accordance with any specific or recommended repair specifications of the manufacturers of the insured boat.

The boat was manufactured by Fiberglass Engineering, better known as Cobalt Boats of Neodesha, Kansas. It is of fiberglass construction and is powered by a 185 horsepower inboard-outboard engine. Teague purchased the boat new for about $9,000. The boat was under a two year warranty which by its terms did not cover a boat which had been involved in an accident. The policy allowed $10,000 coverage on the boat.

Alex Barry, customer service manager for the manufacturer, testified by deposition which was read into the record. He stated that the boat consists of two main parts: the hull assembly and the deck assembly which in the manufacturing process are molded separately and then put together. Thereafter, other items such as seat cushioning, hardware and an engine are put on the boat. On the issue of how the boat should be repaired, Barry testified as follows:

Q. All right, Mr. Barry, would you have an opinion how this boat can be repaired?
A. Yes, I do.
Q. What is that?
A. By replacing the hull and the deck assemblies, the damaged part of the hardware and there were a few small parts.
Q. So you say replace the hull and the deck?
A. Yes.
Q. How would you go about this?
A. By returning it to our facility in Neodesha, Kansas, and manufacturing a new hull and a new deck, taking all of the good parts from this particular boat and installing them in the new parts.
Q. Why would you recommend doing this procedure?
A. In my opinion, this boat has enough severe damage visible and the possibility of enough not visible structural damage that it probably could not be repaired properly.
Q. Have you had occasion to estimate what this procedure would cost, as far as Mr. Teague?
A. Yes, I have.
Q. Have you prepared an itemized list, sir?
A. Yes.
Q. Do you have it with you there?
A. Yes, I do.
Q. Will you explain this to the Court?
A. I have listed to replace a hull assembly — do you want me to list the prices?
MR. HOPPER: Well, just to save time Bill, can’t we file this — let it be filed as Exhibit 12.
(Exhibit 12 marked and filed)
Q. Basically, what are the items that you would repair at your company?
A. We would be replacing the hull assembly, the deck assembly, both port and starboard bow rails and their stanchions which are hardware that supports them, a rear teakwood rail on the back of the boat, the propeller and miscellaneous small parts, which I have as an anchor light bracket, a swim platform bracket and three items of upholstery, all being in the bow area.
Q. Looking at exhibit 12 it appears at the main item is as you say the hull and deck assembly?
A. That is correct.
Q. And that comes to total parts of $5,061.20 as I read it, is that right?
A. That is correct.
Q. Total labor of $1,000.00?
A. That is correct.
Q. Freight is $500.00, based on 1250 miles at forty cents a mile?
A. That is correct.
Q. A total of $6,561.20?
A. Yes sir.
Q. Mr. Barry, do you know of any other way that this boat could be repaired that it could be not only cosmetically sound, or hold its cosmetic effect, as well as structural stability?
A. No sir.
Q. Could the hull and deck assembly be, as we laymen say, patched, without going through all this procedure?
A. You mean the procedure of replacing these parts?
Q. Yes?
A. I would have to say that any fiber glass product can be repaired— whether or not it can be repaired properly is the question I believe.
Q. Well, answer this, sir, why would you rebuild the hull and deck as opposed to patching it?
A. You mean replace it rather than patch it?
Q. Right?
A. One of the considerations of course would be economics, the other would be from esthetics — if I can clarify those as best as possible, there would be a tremendous amount of labor involved just figuring out how much structural damage has occurred to this boat — the information I have right now, there is no way to tell how much structural damage is done internally to the hull — just to determine that, the whole boat literally has to be disassembled, much further than if we just replaced the hull, so by replacing it, there is a tremendous labor savings there, and the two offset each other — the other thing as I mentioned is from a cosmetic standpoint, that it is very difficult to refinish fiber glass properly by using gel and having a long lasting finish that will not give further problems in the future — I think perhaps to answer your question best, it is not possible to repair this type of damage and have any kind of assurance that you are not going to have recurring structural problems in the future.

He further testified that the repairs he recommended would be in accordance with accepted shipyard repair practices and the warranty would extend for two years after the repairs were made.

There are certain aspects of Mr. Barry’s testimony that cause some concern to this Court. He stated that his department, customer service, involved the handling of all warranty problems with the dealers, parts and part distribution and the operation of a service facility. He stated that the service facility consisted of a small shop with four employees who did both warranty and non-warranty repair. He did not state that these employees repaired wrecked boats, nor did he state that he had experience in the actual repair of wrecked fiberglass boats. His position is the safe one — replace all damaged parts — which under the facts has the practical result of manufacturing a new boat. He stated:

In my opinion, this boat has enough severe damage visible and the possibility of enough not visible structural damage that it probably could not be repaired properly. (Emphasis added)
******
I think perhaps to answer your question best, it is not possible to repair this type damage and have any kind of assurance that you are not going to have recurring structural problems in the future.

Mr. Barry’s responsibility to his company was to take care of warranty problems with the dealers. He does not show any experience with Cobalt Boats as an appraiser of collision damage to fiberglass boats. It is one thing to be able to examine a boat and decide if it is in proper condition under the terms of a manufacturer’s warranty while it is quite another matter to inspect a fiberglass boat which has been damaged in a collision and say whether the damage can be repaired. To qualify on the latter, some experience in making such repairs should be shown.

Mr. Teague testified that he thought the boat required the treatment suggested by Mr. Barry. He stated that “a main consideration” for that conclusion was the fact that he would thereby obtain a manufacturer’s warranty for two years after the work was done. Mr. Lilly, the dealer from whom the boat was purchased, stated that he advised Mr. Teague to have the manufacturer repair the boat. Mr. Lilly has a shop for the repair of fiberglass boats but he did not make an estimate of the cost to repair this boat because he had never before repaired a boat with such extensive damage.

The defendant presented Charles Taylor, the owner and operator of T & K Boat Repair of Madison, Tennessee, and Taylor’s employee, Herman Culbreath. T & K Boat Repair of Madison is a business engaged in the repair of fiberglass products. Mr. Taylor has been in this fiberglass repair business for about 15 years. He was with Glas-par Boat Company in the repair of boats and later in management. He opened his own business in 1969 and is now actively engaged in the repair of fiberglass products including fiberglass boats of various makes. The employee, Culbreath, inspected the boat, made his notes and from his report he and Taylor made an estimate of the cost to repair the fiberglass. The estimate includes the replacement and refinishing of the damaged fiberglass of the hull and the deck. It also includes what is referred to as “handrails” which were to be replaced. The total cost for the material and labor was $2,107.95, plus $200 for transportation or a total of $2,307.95. These witnesses testified that the boat could be repaired and when repaired it would be in as good condition as prior to the collision. Taylor also testified that the repairs would be in accordance with customarily or generally accepted shipyard repair practices. Taylor testified that he had successfully repaired fiberglass boats with more extensive damage than that sustained by the boat in question. Taylor inspected the boat on a later date and said that he saw nothing that would change his opinion as to whether the boat could be repaired or the cost of the repair as stated in the estimate.

Taylor and his employee did not closely examine and ask questions about certain rails, cushions, the propeller, etc., which according to Barry were damaged. This was due to the fact that Taylor was looking to the cost of repairing the fiberglass and any of the hardware or dressing that the owner wanted repaired would be done, but at the owner’s cost. Taylor does not stock any of these parts for any make of fiberglass boats. He obtains them from a dealer in the particular brand and installs them. The “handrails” referred to in Taylor’s estimate had some connection with the fiberglass to be repaired and was included for that reason.

We hold that the weight of the evidence establishes that this boat can be repaired as set out in the policy. It is not necessary to manufacture another boat as suggested by Mr. Barry. We will, therefore, adjust the amount of damages. The Taylor estimate included $180 for parts other than fiberglass repair. As we understand the record, those parts were included in Mr. Barry’s list of the ten items other than fiberglass which he found were damaged. The cost of the ten items listed by Barry totals $385.60. The difference in the two figures is $205.60 to which the plaintiff is entitled. We, therefore, hold that the judgment of the trial court is modified so as to be in the amount of the Taylor estimate of $2,307.95 plus $205.60 for additional parts, or $2,513.55. The judgment as modified is affirmed. This cause is remanded to the trial court for the enforcement of its judgment as herein modified.

The plaintiff-appellee assigns the following errors: 1) the court erred in failing to award damages for the loss of use of the boat; and 2) the court erred in failing to assess the 25% statutory penalty as allowed by T.C.A. § 56-1105.

In support of its claim for damages due to the loss of use of the boat the plaintiffs cite Perkins v. Brown (1915) 132 Tenn. 294, 177 S.W. 1158 and Anderson v. Innman (1926) 3 Tenn.App. 195. Both of those lawsuits sounded in tort seeking damages resulting from the plaintiffs’ cars being wrecked. We hold that the rule announced in those cases is not applicable to the present lawsuit which is brought to enforce a contract of insurance. The policy does not insure against loss of use of the boat. We affirm the chancellor in his refusal to award damages for loss of use of the boat.

The claim for the 25% statutory penalty is without merit and the chancellor is affirmed in this respect.

The costs in this Court and in the trial court are adjudged one-half against each party.

SUMMERS and EWELL, JJ., concur.


author: PER CURIAM.

text:
    Jon Kenneth FERGUSON et al., Petitioners, v. W. E. McCARRELL et al., Respondents.
    No. B-8626.
    Supreme Court of Texas.
    Oct. 17, 1979.
    Rehearing Denied Nov. 21, 1979.
    Kamp & Pope, T. Turner Pope, III, Houston, for petitioners.
    Fred Clark, New Braunfels, for respondents.
   PER CURIAM.

In this suit judgment has been rendered for the holders of a promissory note against the guarantors after severance of the maker. The decision of the court of civil appeals affirming that judgment, 582 S.W.2d 539, conflicts with the decision of the court of civil appeals in Cook v. Citizens National Bank of Beaumont, 538 S.W.2d 460 (Tex.Civ.App. — Beaumont 1976, no writ).

We conclude that Section 3.416(a), Texas Business and Commerce Code (1968), controls this case. Accordingly, we disapprove the holding of Cook v. Citizens National Bank. The application for writ of error in this case is refused, no reversible error. Rule 483, Tex.R.Civ.P.


author: ODOM, Judge.

text:
    Howard Edward CUDE, Appellant, v. The STATE of Texas, Appellee.
    No. 58126.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 17, 1979.
    Rehearing En Banc Denied Nov. 21,1979.

      Pat Priest, San Antonio, court appointed on appeal, for appellant.
    Bill M. White, Dist. Atty., F. G. Rodriguez, C. Michael Schill and H. Wayne Campbell, Asst. Dist. Attys., San Antonio, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ODOM and DALLY, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was assessed by the jury at 99 years.

Appointed counsel on appeal raises two grounds of error, which he argues together. It is asserted that appellant was denied a fair trial and that he was denied effective assistance of counsel at his trial. In support of these two grounds of error counsel lists 34 items “as examples of why and how [appellant] was denied a fair trial and the effective assistance of counsel.”

The right to effective assistance of counsel means counsel reasonably likely to render and rendering reasonably effective assistance of counsel. Butler v. State, Tex.Cr.App., 499 S.W.2d 136. Counsel’s services are to be judged by the totality of the representation, and challenges will be sustained only if firmly founded. Ex parte Prior, Tex.Cr.App., 540 S.W.2d 723, 727, and cases cited there. On the other hand, if from the entire record it is apparent that the defendant did not receive effective assistance of counsel, this Court will have no hesitancy to so hold. Rodriguez v. State, Tex.Cr.App., 340 S.W.2d 61. This Court has even reviewed the issue sua sponte. Vessels v. State, Tex.Cr.App., 432 S.W.2d 108, 115 (on motion for rehearing).

The most serious matters raised in support of appellant’s jointly argued grounds of error concern the cross-examination of appellant’s mother, who was a witness for the defense, and the rebuttal testimony of police officer Garrison, who was called by the State to contradict testimony elicited from appellant’s mother on cross-examination. All of the matters that will be discussed were elicited by the State from these two witnesses, and were received without objection from appellant’s court appointed trial counsel.

Appellant’s mother was called to give alibi testimony for the defense, which she gave in less than three pages of direct examination. There followed twenty-four pages of cross-examination which ranged far and wide, showing extraneous offenses and arrests of appellant and his relatives, and conversations between the witness and Garrison about other prejudicial matters. After the defense rested, the State called Garrison, who presented a different version of his conversations with appellant’s mother, presenting further evidence of extraneous offenses and planned future crime by appellant.

During the course of the cross-examination of appellant’s mother, she told of being asked to sign a statement that her son had committed armed robberies and owned a sawed-off shotgun. She denied that she had told Garrison that her son owned a sawed-off shotgun, had stolen a ear, or placed her in fear of her own life, but admitted that marihuana and a sawed-off shotgun were found by Garrison when he searched their apartment. She also referred to her son having been in jail on other charges and made numerous references to her daughter’s problems with the law, stating that her daughter was in the penitentiary and her son-in-law was in jail.

Garrison testified to two conversations with appellant’s mother. According to him, she and one of her daughters asked him to arrest appellant because he was about to commit an armed robbery. At their next meeting, after appellant’s arrest, she expressed great fear of appellant and asked him to search her apartment. Once there, she turned over to him a shotgun that she said appellant had cut off with a tubing cutter and planned to use in future robberies, and marihuana that she said belonged to appellant. As he left she told him where a green Mustang was parked that appellant had stolen and planned to use in future robberies. There were also references to an arrest of appellant’s sister.

In summary, there was evidence of many extraneous offenses by appellant, including possession of marihuana, possession of a sawed-off shotgun, theft of an automobile, and references to past robberies and arrests and to planned future robberies.

Although much of the evidence of extraneous offenses introduced by Garrison’s testimony was in conflict with the cross-examination responses of appellant’s mother, those matters were not admissible for any purpose. See, Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97. Even though other portions of the two conversations were admissible to impeach the alibi testimony of appellant’s mother, the permissible scope of such impeachment was far exceeded by the numerous extraneous offenses listed above. Under the recent case of Bates v. State, 587 S.W.2d 121 (1979), the State’s impeachment by showing extraneous offenses was clearly on collateral matters.

Although an isolated instance of a failure to object to inadmissible evidence does not necessarily render counsel ineffective, Ewing v. State, Tex.Cr.App., 549 S.W.2d 392; Long v. State, Tex.Cr.App., 502 S.W.2d 139, in this case there was not a single objection to the numerous and repeated showings of extraneous offenses during the lengthy course of cross-examination of appellant’s mother and of direct examination of officer Garrison.

The numerous extraneous and prejudicial matters set out above are some of the items listed in appellant’s brief as the basis for his claim that he was denied a fair trial. The failure of his court appointed trial counsel to object to any of these matters is the basis of his claim- that he was denied effective assistance of counsel. These two grounds of error, which may be characterized as complements to one another, reflecting opposite sides of the same coin, are the same as the respective positions taken by the majority and concurring opinions in Ruth v. State, Tex.Cr.App., 522 S.W.2d 517. Although the number of extraneous and prejudicial references made before the jury in this case is not as large as in Ruth, it would be bad law to construe the high water mark of an extreme fact situation to be the minimum threshold for reversible error. The same violation of principles that compelled reversal in Ruth also requires reversal here. Even though the violation here was not so extreme as in Ruth, it nevertheless was sufficient to have denied appellant the fair trial and effective assistance of counsel to which he was entitled.

Because appellant was denied a fair trial and the effective assistance of counsel, the judgment is reversed and the cause remanded.

DALLY, J., concurs in the result.

      . The instant offense was not committed with a shotgun.


author: ROBERTS, Judge. DOUGLAS, Judge, PHILLIPS, Judge.

text:
    Ex parte Glenn Lavester CLARK.
    No. 60073.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 16, 1979.
    Rehearing Denied Oct. 31, 1979.

      Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ROBERTS, Judge.

This is a post-conviction application for writ of habeas corpus pursuant to the provisions of Article 11.07, Vernon’s Ann.C.C.P.

On March 7, 1975, appellant, after pleading guilty, was convicted for the offense of credit card abuse in Cause No. C-7411609HP. See V.T.C.A., Penal Code, Section 32.31(b). Punishment was assessed by the court at two years’ confinement. No appeal was taken. The record reflects that appellant has since successfully completed this sentence and has been discharged therefrom.

Appellant is presently serving a sentence for a conviction for unauthorized use of a vehicle. See V.T.C.A., Penal Code, Section 31.07. He was convicted for this offense on December 7, 1976, after pleading guilty. The court assessed his punishment at six years’ confinement. We affirmed this conviction in an unpublished per curiam opinion delivered October 5, 1977. See Clark v. State, No. 55,030, delivered October 5, 1977.

On October 23, 1978, petitioner filed his application for writ of habeas corpus challenging the validity of his prior conviction for credit card abuse (Cause No. C — 74— 11609HP), the sentence for which he has successfully completed.

On October 31, 1978, the trial court, pursuant to Article 11.07, § 2(c), supra, entered findings of fact and conclusions of law in which the court found that petitioner’s indictment for the credit card abuse offense was fundamentally defective and that his conviction therefor was void; the court further recommended that although petitioner was not presently confined due to this conviction, he should, nevertheless, be granted relief in light of the serious collateral consequences which must necessarily result from this conviction.

It is clear that a fundamentally defective indictment may be challenged by writ of habeas corpus under Article 11.07, supra. Ex parte Walters, 566 S.W.2d 622 (Tex.Cr.App.1978). Moreover, because of the serious collateral consequences arising from a felony conviction, the doctrine of mootness does not prohibit a collateral attack by writ of habeas corpus brought after the petitioner has successfully served the sentence for the felony conviction. Ex parte Harp, 561 S.W.2d 180 (Tex.Cr.App.1978).

In the present case, the indictment which petitioner now challenges alleges that he committed the offense of credit card abuse by:

“. . . receivpng] an American Express Credti Card # 013-091 — 217—3— 800A with intent to use it, without the effective consent of the cardholder.”

We hold that this indictment fails to charge an offense of credit card abuse under any theory embodied in Section 32.31, supra; therefore, petitioner is entitled to the relief requested. See also Ex parte Walters, supra.

Accordingly, appellant’s conviction in Cause No. C-74r-11609HP for the offense of credit card abuse is void and the prosecution under this invalid indictment is ordered dismissed.

The relief sought is granted.

DOUGLAS, Judge,

dissenting.

Clark was convicted in 1975. The conviction was passed upon and affirmed by this Court in 1977. He has served the full term. Now a majority of the panel holds that all the proceedings are void because of a defective indictment. Clark never contended at the trial or on appeal that the indictment was defective or that he did not know for what offense he was charged and convicted.

An indictment such as the one in this case was held sufficient, even though a motion to quash had been filed, in Baldwin v. State, 538 S.W.2d 109 (Tex.Cr.App.1976). In that case the indictment alleged that Baldwin “did then and there unlawfully, knowingly, and intentionally steal a Master Charge credit card belonging to and from Brenda White.”

An indictment was held good in Prodan v. State, Tex.Cr.App., 574 S.W.2d 100, in December, 1978. It alleged that Prodan

“did then and there unlawfully and knowingly steal a BankAmericard credit card owned by Jeanne O’Sullivan, hereafter styled the complainant, from the possession of the complainant with the intent to deprive the complainant of the property.”

In the present ease there was no motion to quash the indictment. It alleged Clark committed the offense of credit card abuse by

“receiving an American Express Credit Card # 013-091 — 217—3-800A with intent to use it, without the effective consent of the cardholder.”

V.T.C.A., Penal Code, Section 32.31(b)(4), provides:

“A person commits an offense [credit card abuse] if . . .he steals a credit card or, with knowledge that it has been stolen, receives a credit card with intent to use it, to sell it, or to transfer it to a person other than the issuer or the cardholder . . . .”

The indictment in the present case alleges an offense in the terms of the statute. The indictments in the Baldwin and Prodan cases alleged theft and they were held sufficient. In the present case, the indictment alleges that Clark received the credit card which is covered by the statute. It provides that it is an offense to steal or receive such a card. The majority grants him relief and in doing so ignores and refuses to follow prior decisions.

The relief sought should be denied.

Joined by W. C. DAVIS, J.

Before the court en banc.

OPINION ON STATE’S MOTION FOR REHEARING

PHILLIPS, Judge.

The State has adopted the dissent to the opinion on original submission as its brief on Motion for Rehearing. The dissent urges that the indictment in this case alleges an offense in terms of the statute, V.T. C.A. Penal Code, Section 32.31(b)(4). That subsection provides in pertinent part that a person commits an offense if •

., with knowledge that it has been stolen, [he] receives a credit card with intent to use it, to sell it, or to transfer it to a person other than the issuer or the cardholder; .
The indictment alleged that appellant . receive[d] an American Express Credti [sic] Card # 013-091-217-3-800A with intent to use it, without the effective consent of the cardholder.

An indictment must allege all the essential elements of the offense charged. Holcomb v. State, 573 S.W.2d 814 (Tex.Cr.App.1978); Ex parte Mathis, 571 S.W.2d 186 (Tex.Cr.App.1978). The elements of the alleged offense are (1) a person (2) with knowledge that it has been stolen (3) receives a credit card (4) with intent to use it. There is no allegation in the indictment that appellant received the credit card “with knowledge that it has been stolen.” The indictment fails to allege an element of the offense charged and is fundamentally defective. Petitioner is entitled to relief.

The State’s Motion for Rehearing is denied.


author: ODOM, Judge. DOUGLAS, Judge,

text:
    Ex parte Edith REYNOLDS.
    No. 60647.
    Court of Criminal Appeals of Texas, En Banc.
    June 20, 1979.
    Rehearing Denied Sept. 19, 1979.

      Richard L. Griffin, Huntsville, for appellant.
    Thomas F. Lee, Dist. Atty., Del Rio, Douglas M. Becker, Asst. Atty. Gen. of Texas, Austin, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is a post-conviction habeas corpus application filed pursuant to Art. 11.07, V.A.C.C.P.

Appellant is serving a thirty-five year sentence for the murder of her husband. She was first tried in 1970 in Kinney County and sentenced to life. On appeal her conviction was reversed because the evidence was insufficient to corroborate the testimony of her daughter who was an accomplice witness in the case. Reynolds v. State, Tex.Cr.App., 489 S.W.2d 866. After remand she was convicted in a second trial in October 1973 after a change of venue to Val Verde County and sentenced to thirty-five years. On appeal that conviction was affirmed in a per curiam opinion. Petitioner now contends her second trial after the first conviction was reversed for insufficient evidence constituted a violation of her constitutional protection against double jeopardy, as recently held in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15.

The State challenges petitioner’s request for relief with two arguments. First, it is asserted that insufficient evidence to corroborate an accomplice witness under Art. 38.14, V.A.C.C.P., does not constitute insufficient evidence to support the conviction under the Burks-Greene rule. Second, the State argues that the Burks-Greene rule should not be given retroactive application.

In Burks v. United States, supra, the Court reviewed its prior decisions in the area of the double jeopardy protection and the power to retry a defendant after reversal on appeal. In resolving “the present state of conceptual confusion existing in this area of the law” the Court concluded:

“In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e. g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecu-torial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. .
“The same cannot be said when a defendant’s conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. Moreover, such an appellate reversal means that the Government’s case was so lacking that it should not have been submitted to the jury. Since we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.”

The State apparently contends that insufficient evidence to corroborate an accomplice witness is in the class of “trial error” instead of “failure of proof.” The State also calls attention to the concurring opinion of Justice Rehnquist, in which he took the opportunity to emphasize “the varying practices with respect to motions for new trial and other challenges to the sufficiency of the evidence both at the trial level and on appeal in the 50 different States in the Union.”

We agree the requirement that the testimony of an accomplice witness be corroborated is a practice in this State that varies from that of many others. It does not follow, however, that error under this rule is mere “trial error” as distinguished from “failure of proof.” Art. 38.17, V.A.C. C.P., cited in petitioner’s brief filed in response to the State’s first brief, provides:

“In all cases where, by law, two witnesses, or one with corroborating circumstances, are required to authorize a conviction, if the requirement be not fulfilled, the court shall instruct the jury to render a verdict of acquittal, and they are bound by the instruction.”

Thus, under this statute, insufficient evidence to corroborate an accomplice witness requires a verdict of acquittal. As quoted above from Burks:

“Since we necessarily afford absolute finality to a jury’s verdict of acquittal . it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.”

In this jurisdiction, when the evidence is insufficient to corroborate an accomplice witness, the jury cannot properly return any verdict except an acquittal. We therefore hold that the Burks-Greene rule does apply to cases in which the evidence is insufficient to corroborate the testimony of the accomplice witness.

We now turn to the issue of whether the Burks-Greene rule should be given retrospective application. In Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29, the Court considered whether the double jeopardy doctrine announced in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, should be given retroactive effect, and held that it should.

In Robinson the Court stated that the three-pronged test of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, cannot be rigidly applied to double jeopardy issues:

“The prohibition against being placed in double jeopardy is likewise not readily susceptible of analysis under the Linklet-ter line of cases .
“The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial. . [T]he Court’s ruling [in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435] was squarely directed to the prevention of the second trial’s taking place at all, even though it might have been conducted with a scrupulous regard for all of the constitutional procedural rights of the defendant.” (Emphasis added.) 409 U.S. at 508-09, 93 S.Ct. at 878.

Likewise, Burks and Greene were “squarely directed to the prevention of the second trial’s taking place at all.”

The State in its brief takes the position that Robinson in effect established a retro-activity test for double jeopardy holdings that looks only to the last two prongs of the three prong test of Linkletter. We believe that position misreads Robinson. Instead of emphasizing the “reliance” prong of Linkletter, Robinson simply stated, “The element of reliance embodied in the Linklet-ter analysis will not be wholly absent in the case of constitutional decisions not related to trial procedure . . .” (Emphasis added.) We construe this phrasing to indicate that the reliance component, while not wholly absent, will be of lesser significance in the double jeopardy area. We therefore look to see what role the reliance prong played under Linkletter.

In Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, the three prongs of Linkletter and their relative roles were described in this language:

“As we most recently summarized them in Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199, ‘The criteria guiding resolution of the question [of retroactivity] implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards and (c) the effect on the administration of justice of a retroactive application of the new standards.’
“Foremost among these factors is the purpose to be served by the new constitutional rule. .
“ . . . we have relied heavily on the factors of the extent of reliance and consequent burden on the administration of justice only when the purpose of the rule in question did not clearly favor either retroactivity or prospectivity.”

Thus, under Linkletter, the purpose of the new rule is of primary significance, and the other two prongs are heavily relied on only when the purpose of the rule does not clearly favor either retroactivity or prospectivity. Robinson does not appear to accord any weight to the third prong, or at least none beyond what is incorporated into the second.

What then is the purpose of the Burks-Greene rule and does it clearly favor retro-activity or prospectivity? The Burks-Greene decisions stand for the rule that a defendant’s appeal or request for a new trial does not “waive” his right to an acquittal. The necessary prerequisite to application of the rule is that the defendant show he was entitled to an acquittal. Once such a showing is made it necessarily follows that the State is barred from subjecting him to a second trial. This is wholly unlike the issue of retroactivity where the alternatives are whether the State can obtain a conviction without observation of the new rule, or must seek a conviction, if any, in compliance with the new rule. The issue under Burks-Greene is whether the State should be allowed a post-acquittal conviction, and no changes in the rules for obtaining it are implicated. As stated in Burks, “Given the requirements for entry of a judgment of acquittal, the purposes of the Clause would be negated were we to afford the Government an opportunity for the proverbial ‘second bite at the apple.’ ” The purpose of the rule clearly points to retroactive application.

Since under Robinson “[t]he element of reliance embodied in the Linkletter analysis” is not “wholly absent,” we must ask whether it is of sufficient gravity to outweigh the clear purpose of the rule. It is true, as stated in Burks itself, that the Court’s prior holdings in the area “can hardly be characterized as models of consistency and clarity.” On the other hand, what prejudice would the State suffer from retroactive application of the new rule as a result of its reliance on the old rule? The prejudice in retroactive application of procedural rules arises primarily from the denial of use of evidence and the burden of retrial. No such prejudice would accompany a retroactive application of the Burks-Greene rule simply because it would bar rather than require a retrial, and it in no way affects what evidence the State may use. The State in its brief suggests prejudice “if petitioner might have been tried upon other charges following [her] first conviction,” but the State abandoned any such other prosecutions to reprosecute the reversed case. We find such prejudice to be too speculative in nature. If this were sufficient to bar retroactive application, then all rules would be prospective only. Also, as stated in Burks itself:

“[T]he prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.”

In sum, we find no demonstrable prejudice to the State despite good faith reliance on the old rule.

The rule is not one that creates a jeopardy bar after proceedings that do not afford the State even one “bite at the apple,” (see, Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346; Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24), and we express no opinion as to the retroac-tivity vel non in such cases. In every case to which the Burks-Greene rule could apply, past or future, the State is not denied its opportunity to take one “bite at the apple.” We hold the rule should be given full retroactive application and that petitioner is entitled to relief.

The judgment against petitioner in cause 1519 in the 63rd Judicial District Court of Kinney County (petitioner’s first conviction) is ordered reformed to show an acquittal, the judgment against her in cause 3671 in the 63rd Judicial District Court of Val Verde County (petitioner’s second conviction after a change of venue from Kinney County) is set aside, and she is ordered discharged from any further confinement under said judgment. A copy of this opinion will be sent to the Texas Department of Corrections.

It is so ordered.

ONION, P. J., and CLINTON, J., concur.

DOUGLAS, Judge,

dissenting.

The majority asks the wrong question and necessarily arrives at the wrong answer.

New interpretations of the double jeopardy clause are not per se retroactive. See Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973); Jackson v. Justices of Superior Court of Massachusetts, 549 F.2d 215 (1st Cir.) cert. denied, 430 U.S. 975, 97 S.Ct. 1666, 52 L.Ed.2d 370 (1977). However, the traditional retroactivity test outlined in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), is not readily applicable to non-procedural rights. Recognizing this, the Supreme Court, in Robinson v. Neil, supra, has applied a more flexible test for determining retroactivity. Although, as the Robinson Court candidly concedes:

“We would not suggest that the distinction that we draw is an ironclad one that will invariably result in the easy classification of cases in one category or the other.”

The majority correctly interprets the flexible rule utilized in Robinson ; however, in applying it to these facts, they misstate the issue as “whether the State should be allowed a post-acquittal conviction.” The issue can be better framed by looking at the ultimate purpose of the protection against double jeopardy. The purpose underlying the decisions in Burks and Greene is, as the majority earlier observes, “ ‘squarely directed to the prevention of the second trial’s taking place at all.’ ” In a similar light, the Supreme Court stated the purpose of the protection against double jeopardy as follows:

“It is a guarantee against being twice put to trial for the same offense * * * the guarantee against double jeopardy assures an individual that, among other things, he will not be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).”

This purpose, of preventing the second trial, can be fully accomplished prospectively. It cannot be accomplished after the second trial has occurred. We must, therefore, approach the instant case by acknowledging that the double jeopardy clause, as currently interpreted, has been violated. The proper question concerning retroactivity, in keeping with the flexible approach used in Robinson is: What interest, that is protected by the Double Jeopardy Clause, can not be furthered by granting relief in a collateral attack upon an otherwise valid conviction.

In considering this issue, we must recognize that our federal constitution contains several evolving concepts that have been and continually will be reinterpreted by the Supreme Court. Retrial of the instant petitioner did not violate the Double Jeopardy Clause in 1973. The subsequent conviction was obtained in good faith and with sufficient evidence. Petitioner has already suffered the consequences of the second trial process. Double jeopardy does not effect the validity of the fact finding process. Thus, the only possible interest which could be furthered by retroactivity would be to elevate the Double Jeopardy Clause to the highest magnitude of constitutional rights such that any violation of it is so fundamental that it requires full and automatic retroactive application. We have not even accorded our Fourth Amendment protections, against arbitrary government searches, such a lofty position. Linkletter v. Walker, supra. The Supreme Court in Robinson held that the Double Jeopardy Clause did not protect such a fundamental right, and there is no reason to elevate the protection beyond the current Supreme Court interpretations. No other interest, constitutional or otherwise, will be furthered by now allowing petitioner to escape the consequences stemming from a conviction which was constitutionally and legally obtained in 1973.

The reversal of the original conviction was an error of law on the part of the majority of the Court. See the original and dissenting opinions in Reynolds v. State, 489 S.W.2d 866 (Tex.Cr.App.1970). There was sufficient evidence in that case to support the conviction with or without the testimony of an accomplice witness.

The relief requested should be denied.

W. C. DAVIS, J., concurs in this opinion.

      . These three prongs, as succinctly stated in Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, are (1) the purpose of the rule, (2) the extent of law enforcement reliance on the old rule, and (3) the effect of retroactive application on the administration of justice.

      . Since the decisions in Burks and Greene, when we reverse a conviction for insufficient evidence, we order a judgment of acquittal. E. g., Owens v. State, 576 S.W.2d 859 (Tex.Cr.App.1979). The federal courts allow an interlocutory appeal from the district court’s denial of a motion asserting double jeopardy. Abney v. United States, supra. Thus, both our Court and the federal courts recognize the importance of preventing the second trial.