author: HOGAN, Judge.

text:
    Paul Edward WELCH, Plaintiff-Respondent, v. WESTERN CASUALTY AND SURETY COMPANY, Defendant-Appellant.
    No. 10703.
    Missouri Court of Appeals, Springfield District.
    June 16, 1978.
    Motion for Rehearing or Transfer Denied June 30, 1978.
    Application to Transfer Denied July 24, 1978.

      Albert C. Lowes, Thomas A. Ludwig, Buerkle, Buerkle & Lowes, Jackson, for defendant appellant.
    Hal E. Hunter, Jr., Hunter & Hunter, New Madrid, for plaintiff respondent.
    Before BILLINGS, C. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

In this court-tried action upon an automobile insurance policy, plaintiff has had judgment in the amount of $10,000 with interest at the rate of eight (8%) percent from July 27, 1976. In addition, the trial court has allowed plaintiff damages in the sum of $1,000 and an attorney’s fee in the amount of $3,333 under the provisions of the vexatious delay statute, § 375.420, RSMo Supp.1975. Defendant appeals.

The case involves physical damage to a 1970 International dump truck owned by the plaintiff and insured by the defendant under a “fleet schedule.” The insured vehicle was damaged while it was being used to haul sand from a sand and gravel pit near Caruthersville to a construction site on Interstate Route 155. Plaintiff’s driver viras attempting to maneuver the truck across a large hole which extended completely across the access road. Either as the truck went in, or was coming out of the hole, the frame of the truck broke on both sides, directly behind the cab. Depending on which version of the facts one accepts, the truck did or did not strike the side of the hole before collapsing.

A number of issues were developed on trial, but the focal matter in controversy was whether plaintiff’s damage was caused by collision or by “mechanical breakdown” of the frame. The frame of the truck had been extended to accommodate a 14-foot dump truck body. Plaintiff’s position was that his truck was in good mechanical condition before the frame broke and that his damage was the result of a collision with the side of a large hole in the road. Defendant’s position was that when the frame was extended, the work was improperly done and in consequence the frame was unduly rigid at the point of extension and was unsuitable for ordinary use. Defendant’s evidence suggested that the frame had broken at least once before the loss occurred, that it had been ineptly repaired and had already begun to buckle before it finally broke on both sides on July 1, 1976, the date of the loss in issue. Defendant claims it is not liable because the loss was sustained as a result of “mechanical breakdown.”

In this court, the defendant has briefed and argued six assignments of error. We shall consider each point briefly, but we are in candor obliged to note that both the appellant’s brief and the record come to us in an unsatisfactory state. Counsel for the defendant has condensed approximately 122 pages of testimony into a 2y2-page statement and he has, inadvertently or otherwise, omitted reference to a good deal of the testimony favorable to the plaintiff. Further, there is little or no coordination between the testimony and the exhibits. Rule 84.04(c), V.A.M.R., which calls for a “fair and concise” statement of the facts relevant to the questions presented for review, is rarely complied with literally, but it is nonetheless a violation of the rule to state the relevant facts in argumentative language and to ignore facts adverse to the appellant’s position. Cady v. Kansas City Southern Ry. Co., 512 S.W.2d 882, 885[6] (Mo.App.1974). Likewise, when we are presented with record testimony which shows that the witness is explaining or testifying from an exhibit — such as defendant’s exhibit 1 — but the exhibit bears no marks indicating what the witness meant when he answered “right here” or “up this way,” this court cannot visualize the position of the witness’ finger upon the exhibit, and our ability to perform our proper appellate function is severely impaired. See State ex rel. State Highway Commission v. Hill, 373 S.W.2d 666, 670-671[3] (Mo.App.1963). We do not believe nor suggest that counsel for the appellant has intentionally sought to distort the facts nor mislead this court, and we have no thought of dismissing the appeal; nevertheless, we are not experts in the art of welding, nor the technical aspects of extending truck frames, and are in a poor position to judge the accuracy of defendant’s assertion that it “prove[d] this particular truck was improperly constructed and could not withstand normal use.”

The first point briefed is that plaintiff’s loss was not the result of a “collision with another object.” It is true that defendant’s policy in terms limits its liability - to “loss caused by collision of the automobile with another object” and it is further true that that seemingly innocuous phrase has been “construed” to the point of distraction but defendant’s point need not detain us long. Our courts have consistently held that the noun “collision" as it appears in automobile insurance policies should be given its everyday, pedestrian meaning so as to include any “striking together” or “striking against,” Payne v. Western Cas. & Sur. Co., 379 S.W.2d 209 (Mo.App.1964); Boecker v. Aetna Cas. & Sur. Co., 281 S.W.2d 561 (Mo.App.1955), and in Missouri, the word “collision” connotes no particular degree of force. Boecker v. Aetna Cas. & Sur. Co., supra, 281 S.W.2d at 564[3, 4]. The only witness with direct, personal knowledge of the accident was DeLisle, the plaintiff’s driver; he testified, twice, that the frame collapsed when plaintiff’s truck struck “the other side” of the hole. The fact that DeLisle made contradictory statements in a pretrial deposition is of no consequence. The trial court was at liberty to accept DeLisle’s trial testimony and reject the contradictory statements made in his deposition. Moore v. Ready Mixed Concrete Co., 329 S.W.2d 14, 20[2, 3] (Mo. banc 1959); Cox v. Moore, 394 S.W.2d 65, 67, and authorities cited n. 1 (Mo.App. 1965); Blanks v. St. Louis Pub. Serv. Co., 342 S.W.2d 272, 276[2] (Mo.App.1961). The trial court did not err in finding there was a “collision.”

The other aspect of this point amounts to a strained and tenuous argument that in no circumstances can a chasm, hole, rut or other declivity in the roadway be considered another object. Respectable authority demonstrates the contrary is true. See: Haik v. United States Fidelity & Guar. Co., 15 La.App. 97, 130 So. 118 (1930) (hole 6 feet deep, partially filled with bricks wood and dirt, held “another object”); Tinker v. Boston Ins. Co., 106 Okl. 206, 233 P. 1058 (1923) (side of chasm 50 feet deep held “another object”); Wood v. Southern Cas. Co., 270 S.W. 1055 (Tex.Civ.App.1925) (side of a rut held to be “another object”). Generally, see 7 Am.Jur.2d Automobile Insurance § 63 (1963).

We realize contrary authority may readily be found; the general law was thoroughly discussed in Payne v. Western Cas. & Sur. Co., supra, 379 S.W.2d at 212[4]. We are not prepared to hold, nor suggest, that every pothole in the road is “another object” as that term is used in automobile insurance policies, and we decline the defendant’s invitation to decide abstractly the point at which a defect or hole in the road ceases to be part of the road and becomes “another object.” The hole into which plaintiff’s truck was driven ran the entire width of the roadway — 20 feet, according to defendant’s exhibit 1-A, which was admitted without objection. The hole was 10 to 15 feet across; plaintiff’s testimony was that the hole dropped off “. . . very abrupt” and was at its deepest point 1½ feet .deep. One Charles Tatum, another truck driver, described the hole by saying “. . . [I] come up on the hole and I seen it, and I had done slowed down considerably. I had to lock my truck up pretty good to keep from damaging [it]. I run up on the hole and I come to a complete stop to get across it. It was completely across the road, and it was at least fifteen inches deep, or more . . .” There were other descriptions, or characterizations of the hole, as a “washed out” place, or mere “soft spot” in the road, but the trial court was free to reject those descriptions. Ruling the point very subjectively and on its peculiar facts, we believe the side of the hole which plaintiff’s vehicle struck was “another object” within the intent and meaning of the policy. As we have seen, the trial court could have found there was a “collision”; because the side of the hole was “another object,” it follows there was a “collision with another object” and defendant’s point is without merit.

Defendant’s second assignment of error is more complex. Defendant argues that it is not liable here because the policy, under the heading “Exclusions,” provides:

“[T]his policy does not apply under [tlhe physical damages coverages]: .
(b) to (1) any damage to the automobile which is due and confined to wear and tear, freezing, mechanical or electrical breakdown or failure, unless such damage is the result of other loss- . . .”

The language of this exclusionary clause is admittedly confusing, but it is usually construed to cover a 11 damages directly or solely caused by mechanical breakdown. In our opinion, the foreign precedents do not clearly define the required degree of correlation between the excluded peril and the resulting damage, but this appeal does not require us to distinguish them. Our courts long ago adopted, a rule of “proximate loss” or “proximate cause” to determine whether a particular loss has been sustained as a result of an insured peril or otherwise. Newmark v. Liverpool & London Fire & Life Ins. Co., 30 Mo. 160, 163-164[1] (1860); Delametter v. Home Ins. Co., 233 Mo.App. 645, 655-658, 126 S.W.2d 262, 265-267[l] (1939). In context, the collision was a “proximate cause” of the loss if it was an efficient and producing cause, Boecker v. Aetna Cas. & Sur. Co., supra, 281 S.W.2d at 564[5 — 7]; 5 Appleman, § 3083, pp. 309-310, and whether exposure to an insured peril or some other cause was the “proximate cause” of a loss is ordinarily a question for the trier of fact. Hart-Bartlett-Sturtevant Grain Co. v. Aetna Ins. Co., 365 Mo. 1134, 1151[5], 293 S.W.2d 913, 924-925[7] (1956), cert. denied, 352 U.S. 1016, 77 S.Ct. 562, 1 L.Ed.2d 548 (1957); Delametter v. Home Ins. Co., supra, 233 Mo.App. at 661, 126 S.W.2d at 268[4]; Terrien v. Pawtucket Mut. Fire Ins. Co., supra, n. 4, 96 N.H. 182, 71 A.2d at 745[2],

The defendant’s specific point, as we follow the “argument” part of its brief, is that the frame broke because it had been extended and braced in a manner which made it extremely rigid and unsuitable for normal use. The record, to the extent it is intelligible, indicates that the frame of plaintiff’s truck was originally extended by Don Curry, who was in the “truck-implement business.” Curry had lengthened 250-300 truck frames. He modified plaintiff’s truck by cutting the frame and “weldpng] an additional two pieces of frame in it and box[ing] the sections inside.” By “boxing” Curry meant he “added four pieces of material to form a box on the inside of the frame channel, to give it added reenforcement.” As Curry recalled, the frame was extended 42 inches. Curry had not “bridged” the frame; he did not believe it was required because the frame extension was relatively short. After the plaintiff bought the truck, the frame was “bridged” by a Mr. Oberbeck. The plaintiff, testifying from a. diagram which is not in evidence, stated that the “bridging” or additional reenforcement consisted of welding a piece of metal on the bottom of the frame rail, “like so.” Curry was asked if “bridging” the frame would “create a severe weakness” either “in front of where it is or immediately behind it.” Curry replied that “bridging” would “create an extreme rigid situation at the point where they put the sway brace.” Curry’s testimony was that the frame collapsed “due to an undue stress situation.” An impact or severe jolt would cause such a break, but in Curry’s opinion, normal operation of the truck would not. On cross-examination, Curry stated that if the truck had been subjected to extremely rough usage, and the frame had cracked, then it might “go ahead and come apart.”

The defendant had testimony from Lewis Haman, who was service manager for a truck and trailer sales at Cape Girardeau. At defendant’s request, Mr. Haman examined plaintiff’s truck on November 15,1976, some 4½ months after it was damaged. Haman determined that the frame had been extended to accommodate a 14-foot bed, that a “bridge type” support had been welded underneath the frame, that the bridge or “strap” stopped right behind the cab, and that the frame of the truck had broken in two on both sides “right at the end of the bridge work, on the strap.” Haman had the opinion that there had been three separate failures of the frame structure. He demonstrated the basis for this opinion by indicating certain marks or objects on a series of color photographs, standing, apparently, where the trial court could observe his indications. We cannot, of course, follow this testimony and the photographs themselves indicate nothing more to this court than they did to plaintiff’s witness Curry, who said that they indicated “a mass of broken metal.” In any event, and without prolonging this opinion unduly, Haman was finally permitted to give it as his opinion that the cause of the break was “progressive damage.” He explained his opinion thus: “[T]his particular frame was weakened by this particular strap or reenforcement strap we have been talking about. [The frame] had to flex right there and had progressive damage and after so long a time, it finally gives way.” Haman’s opinion was that the break was “strictly' a mechanical failure.” He was permitted to say that he found no damage indicating a collision.

In rebuttal, the plaintiff called a truck mechanic, Jack Fielder, who had worked on the plaintiff’s truck shortly before the loss occurred. Fielder had “pulled all of the suspension out from underneath the rear end of the truck and replaced all of the bushings, removed the transmission and repaired it and put it back in.” Fielder had examined the frame, and found no damage to the frame anywhere.

From this evidence, which has been condensed and summarized to some extent, the defendant asks us to draw the conclusion, as a matter of law, that plaintiff’s loss was caused by “mechanical failure.” Defendant cites no factually similar case nor any principle of law which compels such a conclusion. In the course of a reasonable independent research, we have found only one case closely comparable on the facts, and there the court drew the conclusion that the question of “proximate cause” was a question for the trier of fact. Terrien v. Pawtucket Mut. Fire Ins. Co., supra, n. 4, 96 N.H. 182, 71 A.2d at 745[2]. Here, there was evidence that the access road was very rough; there was evidence that the frame had been weakened, and evidence of a collision. A trier of fact could find that rough usage contributed to the loss, that improper reenforcement of the frame contributed to cause the loss but still find that the collapse would not have occurred in the absence of the collision. Such a conclusion would satisfy the requisite finding of correlation between the insured peril and the loss. Boecker v. Aetna Cas. & Sur. Co., supra, 281 S.W.2d at 564. We are cautioned to reverse the judgment in a bench-tried case on the ground it is against the weight of the evidence only when we entertain a firm belief that the judgment is wrong. Rule 73.-01(3)(a), V.A.M.R.; Murphy v. Carron, 536 S.W.2d 30, 32[2] (Mo. banc 1976). This record generates no such firm belief.

There is considerably more merit in the defendant’s argument that the penalty for vexatious delay was erroneously assessed. As stated, the trial court awarded the plaintiff $1,000 damages and an attorney’s fee in the amount of $3,333, all presumably pursuant to the vexatious refusal statute, § 375.420, RSMo Supp.1975.

Reminding the carrier that the relation between insurer and insured is not an adversary relation, we believe the evidence falls short of establishing vexatious delay in this case. The plaintiff reported the accident to his insurance agent, one Brady Holland. Holland inspected the damaged truck “the next morning” and found no evidence of any collision. Holland told the plaintiff he would investigate the accident and he did so.

The carrier assigned the claim to Edward Flammger, a claims adjuster with 19 years’ experience. Flammger talked to the plaintiff and to DeLisle. Flammger’s testimony was that as DeLisle related events to him, there had been no collision. Flammger “looked for the truck” and found it in a salvage yard at Caruthersville or at Hayti. Drawing the conclusion that there had been no “collision” within the meaning of the policy, Flammger denied the claim.

An insurer may question an issue and contest an issue of fact relating to its liability if it has reasonable cause to believe and does believe that there is no liability under its policy and that it has a meritorious defense. Of course, the mere fact that the judgment is adverse to the defendant is not a sufficient reason for imposing the penalty. Groves v. State Farm Mut. Auto. Ins. Co., 540 S.W.2d 39, 42[1, 2] (Mo. banc 1976).

As we have noted at' some length, the occurrence vel non of a collision was a fact question in this case; as we have tried to make clear, it is our opinion that the trial court could have found there was none. Further, the policy coverage was more limited than is usually the case; the “comprehensive” coverage did not obtain. We find no basis here for the imposition of a penalty for vexatious refusal to pay.

The defendant has argued two further points. The first of these points is that the trial court should have deducted the value of the salvage and the amount “deductible” under the policy. The carrier’s argument is wholly unsupported by any authority—except a quotation from Black’s Law Dictionary—which is remotely germane to the appeal. The rules pertaining to appellate briefs contemplate the citation of some specific governing or persuasive authority indicating error. Rule 84.04(d); In re Estate of James, 459 S.W.2d 536, 540-541[5] (Mo.App.1970). We have, of course, been over the law governing the carrier’s liability in case of a collision loss, see, e. g., Myers v. American Indemnity Co., 457 S.W.2d 468, 470-471 (Mo.App.1970), but in the absence of any citation to authority bearing on the question, we decline to become advocates for the carrier and consider its argument on its merits.

The appellant also complains of the trial court’s allowance of interest on the judgment at the rate of eight (8%) percent from July 27, 1976, until the judgment is satisfied. No complaint is made of the date from which interest was allowed. Counsel for the respondent concedes that interest should have been allowed at the rate of six (6%) percent and we agree. § 408.040, RSMo 1969. Inasmuch as it appears a new trial would not produce any additional evidence of damages, however, remand is unnecessary. Brugioni v. Maryland Cas. Co., 382 S.W.2d 707, 713[9] (Mo.1964).

Accordingly, the judgment in favor of the plaintiff and against the defendant is reversed and the cause is remanded with directions to enter judgment in favor of the plaintiff and against defendant Western Casualty and Surety Company as of the date of the original judgment for the sum of $10,000, with interest thereon at the rate of six (6%) percent from July 27, 1976, to the date of entry of the judgment, the said judgment so rendered to bear interest at the rate of six (6%) percent as provided by § 408.040, RSMo 1969.

All of the Judges concur.

      . July 27, 1976, appears to be the day the insurer denied its liability. The transcript filed here does not indicate the date of trial nor the date of entry of the judgment.

      . We can take no account of the possible effect of “comprehensive” coverage here. Item 3 of the policy declarations states that “[T]he insurance afforded ... is only with respect to such of the . . . coverages as are indicated by specific premium charge . . .” ■ No premium was charged or paid for comprehensive coverage, and consequently the comprehensive coverage provision is not an effective part of the contract. See: Barnard v. Houston Fire & Cas. Ins. Co., 81 So.2d 132, 54 A.L.R.2d 374 (La.App.1955); 5 Appleman, Insurance Law & Practice § 3222, p. 692 (1970) [hereinafter cited as Appleman].

      . See Annots., 23 A.L.R.2d 389 (1952); 105 A.L.R. 1426 (1936); 42 A.L.R. 1130 (1926); 40 A.L.R. 999 (1926); 30 A.L.R. 806 (1924); 26 A.L.R. 429 (1923); 14 A.L.R. 188 (1921).

      . Fireman’s Fund Ins. Co. v. Cramer, 171 So.2d 220, 223-228 (Fla.App.1964) (Sturgis, C. J., dissenting) vacated Fireman’s Fund Ins. Co. v. Cramer, 178 So.2d 581 (Fla.1965) (adopting dissent filed in District Court of Appeal); Terrien v. Pawtucket Mut. Fire Ins. Co., 96 N.H. 182, 71 A.2d 742, 746[5] (1950); Lunn v. Indiana Lumbermens Mut. Ins. Co., 184 Tenn. 584, 201 S.W.2d 978, 979-981[1][2], 171 A.L.R. 259, 261-263 (1947).


source: Caselaw Access Project

author: WASSERSTROM, Judge.

license: Public Domain

text:
    Karl M. BOYER, Appellant, v. Sherry I. BOYER, Respondent.
    Nos. KCD 29325, KCD 29524.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.

      Carl E. Laurent, Independence, for appellant.
    Donald L. Allen, Lee’s Summit, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

From a decree dissolving his marriage, the husband appeals as being excessive those portions which ordered him to pay child support and attorneys’ fees on behalf of the wife.

The husband was 23 years old at the time of trial. He had entered the Army at age 18 and had married the respondent approximately a year later in 1972. Three years after that, in February, 1975, the husband left the Armed Service.

Following that, the husband was on unemployment compensation for six months. He then entered the University of Missouri at Kansas City as a student in September, 1975. The parties separated on September 18, 1976, at which time the husband was in his second college year majoring in geology. His sole source of income was payments under the G.I. Bill of $390 per month, against which he testified that he had total monthly expenses living alone of $320.

At the time of trial the wife was working full time, receiving take home pay of $125 per week. The living cost for her two children according to the figures given by her in testimony totaled $310 per month. During the period of more than three months that intervened between the separation and date of trial, the husband had made contributions toward child support totaling only $20. The wife had managed to make financial ends meet by borrowing money from her father.

Judge Peters in the trial court awarded child support of $150 per child per month and also ordered the husband to pay the wife’s attorney fee in the amount of $500. When the husband appealed from that award, the wife filed a motion for costs on appeal. This motion came for hearing before Judge Gant, who awarded $1,000 for attorneys’ fees and the costs of printing on appeal. The husband took a second appeal from Judge Gant’s ruling, and the two appeals have been consolidated in this court.

The parties are in agreement with respect to the general principles of law which require that an award of child support and of attorneys’ fees to the wife must give regard not only to the needs of the wife and the children, but also to the ability of the husband to pay. In re Marriage of C_S_B_, 546 S.W.2d 186 (Mo.App.1976); Ortmann v. Ortmann, 547 S.W.2d 226 (Mo.App.1977). After giving recognition to that undoubted rule, the parties part company. The husband emphasizes the fact that his sole income consists of $390 per month and he insists that it was an abuse of discretion to order him to pay from that small sum $300 per month to the children plus an additional $1,500 in legal costs for the wife. In his view, the appropriate award should be $100 per month, which would equal the amount of the governmental allotment which he receives by reason of having those two dependents. On the other hand, the wife points out that the husband admitted in his testimony that he is able bodied and she contends that it is his obligation to seek at least part time work to supplement the government student allowance. She points particularly to the following testimony by the husband as showing his attitude:

“Q. But in any event you are employable, you could be employable making a substantial wage, isn’t that true?
A. Well, I’ll have to go back. I’m a full time student and I fully intend to finish my schooling. When I get out I intend to give her more child support and take care of the kids the best I can, but right now finishing school is the main thing.
Q. In the meantime, so far as you’re concerned, she’s just going to have to do with that one hundred a month, is that what you are saying?
A. No, I didn’t say that. You said that.”

The husband’s desire to obtain a college degree can only be commended. Against that, however, must be set his higher duty to contribute to the support of the two children whom he brought into the world. There are ways by which he can do both. For example, he can take on a part time job. If necessary, he can lighten his scholastic load and stretch out his education over a longer period of time. Another possible recourse would be to apply for a student or other type of loan. How the husband wants to proceed with respect to the avenues open to him is a matter for him to choose. But, he cannot voluntarily decline to work and then plead lack of income as an excuse for not being able to contribute adequately to his children’s needs. As stated in Foster v. Foster, 537 S.W.2d 833, 835 (Mo.App.1976):

“His lack of initiative in the face of his own wants and the needs of the children suggests both a lack of interest in employment and a pretense as to his personal circumstance. The inaction of the appellant, otherwise physically fit and talented for varieties of work, could reasonably have been understood by the trial court as a voluntary refusal to use his capacity to earn and pay. See Weiss v. Weiss, 392 S.W.2d 646, 647[1, 2] (Mo.App. 1965).
“The authorities agree that a court may, in properly circumstances, imput an income to a husband according to what he could have earned by the use of his best efforts to gain employment suitable to his capabilities. * * *”

See also Butler v. Butler, 562 S.W.2d 685 (Mo.App.1978). The trial court accordingly committed no error in refusing to consider the husband’s ability to pay to be limited to the amount of the $390 monthly government allotment. The award of child support is supported by the evidence, and is not against the weight of the evidence or legal principle. It must therefore be affirmed. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

Nor does the husband have just complaint with respect to the scanty proof offered by the wife’s lawyer as to his services at the trial level to support the award of $500 in attorney fee. Judge Peters presided over the trial and could evaluate the nature of preparation and time involved. Moreover, a judge is deemed an expert on the value of legal services so as to dispense with the need for any further expert testimony on that score. Barnhill v. Barnhill, 547 S.W.2d 858, 860[6] (Mo.App.1977).

However, the husband is entitled to some relief with respect to the amount of the award for costs on appeal. Judge Gant, who set the allowance in this regard, was at a double disadvantage in that: (1) he had not heard the original testimony which was given before Judge Peters, and (2) he had to estimate the amount of legal work which would subsequently have to be expended in connection with the appeal to this court. As compared with Judge Gant, this court has the advantage of having the transcript of what transpired before Judge Peters, we have had the opportunity to see the briefs filed in this court and know what has transpired with respect to oral argument. In these respects the transcript and briefs show that the legal issues are narrowly circumscribed, the legal principles governing the appeal are well settled, and the only problem is the application of those settled rules to the facts of this case. The facts in turn are also simple, with the transcripts both before Judge Peters and also before Judge Gant being extremely short. The briefs filed by the parties are equally short. Moreover, oral argument was waived in this court and the cause was submitted for decision on the written briefs.

Under all of the circumstances and particularly considering the straitened financial circumstances of the husband, instead of the award of $1,000 to cover costs of appeal, a fairer award will be $500 plus reimbursement to the wife for the out of pocket cost for the mimeographing of her brief.

The decree entered by Judge Peters on December 27, 1976, is affirmed. The judgment entered by Judge Gant on April 12, 1977, awarding $1,000 to the wife for her costs on appeal is -modified to reduce that award to $500 plus reimbursement to the wife for out of pocket cost of her brief. Upon presentation to the Clerk of the Court of a voucher showing the cost of mimeographing, that amount will be included in the mandate of this court. Court costs on this appeal will be taxed to the husband.

All concur.


author: BROCK, Justice.

text:
    Robert T. STROOP and wife, Mary H. Stroop, J. W. Robinson and wife, Callie M. Robinson, Claiborn J. Harrell and wife, Rebecca Bell Harrell, and Bobby Tarpley and wife, Reba C. Tarpley, suing Individually and on behalf of others similarly situated, Appellants, v. RUTHERFORD COUNTY, a Political Subdivision of the State of Tennessee, Ben Hall McFarlin, County Judge of Rutherford County, Tennessee, Ed Elam, County Court Clerk of Rutherford County, Tennessee, Allen J. Stockard, County Trustee for Rutherford County, Tennessee, and Homer Jones, Register of Deeds for Rutherford County, Tennessee, Appellees.
    Supreme Court of Tennessee.
    June 5, 1978.
    Kenneth W. Snell, Murfreesboro, James M. Sykes, Nashville, for appellants; Joe K. Walker, Springfield, of counsel.
    Larry K. Tolbert, Wm. T. Sellers, Mur-freesboro, for appellees; Smith & Sellers, Murfreesboro, of counsel.
   OPINION

BROCK, Justice.

The plaintiffs bring this action on behalf of themselves and others similarly situated to recover payments of privilege taxes levied upon transfers of realty pursuant to an unconstitutional private act of the legislature, Chapter 172 of the Private Acts of 1969. Pursuant to the motion of the defendants, the trial court dismissed the complaint for failure to state a claim upon which relief could be granted. See Tenn.R. Civ.P. 12.02.

The sole ground asserted in the motion to dismiss was that:

“The complaint on its face shows that these plaintiffs failed to pay the transfer tax under protest, and thereby waived any and all right to refund of said money paid upon the act being declared unconstitutional at any future date.”

The Chancellor did not sustain this ground but did grant the motion, stating:

“There having been no statement of facts presented to the court to show duress upon the part of the plaintiffs, nor to show involuntariness on the part of the plaintiffs, other than the conclusion of the pleadings, the court finds from the undisputed facts appearing on the face of the pleadings and as a matter of law that plaintiffs and each of them have failed to state a claim upon which relief can be granted.”
This appeal, then, presents two questions:

(1) When a county, as distinguished from the state or a municipal corporation, exacts payment of a tax under an unconstitutional enactment, may the taxpayer recover such tax paid without a formal declaration of .protest at the time of payment, provided, such payment is made involuntarily and under duress?

(2) If protest is not required, do the facts stated in the complaint in this case, constitute a sufficient allegation of duress?

I

We hold that a taxpayer need not make a formal protest at the time of payment in order to be entitled to recover county taxes illegally exacted.

The legislature has provided a statutory procedure for the recovery of state and municipal taxes which have been illegally exacted, T.C.A., §§ 67-2301 through 67-2313, but these statutes do not govern actions to collect county taxes illegally exacted; the taxpayer is left to resort to his common law remedies for recovery of county taxes paid. Holloway v. Putnam County, Tenn., 534 S.W.2d 292 (1976); Bell v. Clay County, 168 Tenn. 6, 73 S.W.2d 685 (1934); Little Rock and M. R.R. Co. v. Williams, 101 Tenn. 146, 46 S.W. 448 (1898); Cincinnati N.O. & T.P. R.R. Co. v. Hamilton County, 120 Tenn. 1, 113 S.W. 361 (1908).

One of the statutory requirements for the recovery of taxes paid to a municipality or the state is that the taxpayer make formal protest at the time of payment of such taxes. T.C.A., §§ 67-2303, 67-2313. But, we must turn to the common law to determine whether protest at the time of payment is necessary in order for the taxpayer to maintain a suit for recovery of taxes paid to a county.

Although some of the older cases held to the contrary, the modern common law rule is that if the taxes in question were paid under compulsion or duress and not voluntarily it is not necessary that protest at the-time of payment be shown in order for the taxpayer to maintain an action to recover such taxes. Merchants Despatch Transportation Corp. v. Ariz. State Tax Commission, 20 Ariz.App. 276, 512 P.2d 39 (1973); Southern Service Company v. Los Angeles County, 15 Cal.2d 1, 97 P.2d 963 (1940); Howard v. Augusta, 74 Me. 79 (1882); Pere Marquette Ry. Co. v. Ludington, 133 Mich. 397, 95 N.W. 417 (1903); Atweel v. Zeluff, 26 Mich. 118 (1872); Koewing v. West Orange, 89 N.J.L. 539, 99 A. 203 (1916); Jaynes v. Heron, 46 N.M. 431, 130 P.2d 29 (1942); Mercury Mach. Importing Corp. v. City of New York, 3 N.Y.2d 418, 144 N.E.2d 400 (1957); Horgan v. Taylor, 36 R. I. 232, 89 A. 1058 (1914); State v. Akin Products Company, Tex.Civ.App., 279 S.W.2d 409 (1955), aff’d, 155 Tex. 348, 286 S.W.2d 110 (1956); Swanton Village v. Town of Highgate, 128 Vt. 401, 264 A.2d 804 (1970); Great Northern Ry. Co. v. State, 200 Wash. 392, 93 P.2d 694 (1939); Annot., 142 A.L.R. 1198 (1943); 72 Am.Jur.2d 342-43 State and Local Taxation § 1082 (1974); 84 C.J.S. 1286-87 Taxation § 638 (1954).

No published opinion of this Court appears to have decided this issue, although there are statements in some of the cases to the effect that protest at the time of payment is required in order for the taxpayer to maintain an action for recovery. Most of these statements appear in cases involving attempts to recover taxes paid to the state or to municipalities which, of course, by the terms of the statute, must have been paid under protest. The statements appear also in cases in which the contested issue was whether the taxes were paid as the result of duress or coercion, not whether payment under protest was a requirement.

Actions to recover taxes which have been illegally exacted and paid involuntarily under coercion or duress are in the nature of actions for money had and received, a form of restitution. Holloway v. Putnam County, supra; 72 Am.Jur.2d 340, State and Local Taxation §§ 1077, 1078 (1974). Of course, one may not have restitution of a sum of money voluntarily paid, whether for taxes or some other demand. Id. at § 1080. Accordingly, one who desired to later contest the legality of a payment which he was forced to make has often resorted to the technique of formally protesting at the time of making such a payment in order to facilitate the task of later proving that the payment was not made voluntarily. In other words, entering a protest at the time of payment is one means, but not the only means, of providing proof that the payment was involuntarily made. 66 Am.Jur.2d 1049, Restitution and Implied Contracts § 111 (1973).

We hold that if the taxpayer makes a payment of county taxes involuntarily and under duress, as discussed infra, he may maintain an action to recover the same, although he did not make formal protest at the time of payment.

II

We now consider the question whether the complaint in this case sufficiently alleges that the taxpayers made their payments involuntarily and as the result of duress or coercion.

The tax in question was imposed by Chapter 172 of the Private Acts of 1969 which provided:

“Section 1. That there is hereby imposed in and, for Rutherford County a special privilege tax upon all transfers of realty situated in Rutherford County in the amount of .3 of 1% of the consideration for said transfer in each and every case other than transfers to secure the payment of a debt or transfers to confirm a title already in the grantee. The incidents of this tax shall be upon the grant- or only.
* * * * * *
“Section 3. That the County Court Clerk shall certify upon the face of each instrument of conveyance the payment of said tax and that said instrument shall not be received by the Register of Deeds for recordation until said certification appears thereon.”

The complaint alleges that Chapter 172 of the Private Acts of 1969 is in violation of Article XI, Section 8, and Article I, Section 8, of the Constitution of Tennessee, in that, it is contrary to the general statutes of this State, T.C.A., §§ 67-4101 and 67-4102, Item S, and has been so declared by the Chancery Court for Rutherford County in a final decree in another case.

The complaint alleges that plaintiffs paid the taxes in question under duress and compulsion,, in that, upon presenting themselves at the Rutherford County Register’s office for the purpose of recording deeds to parcels of real estate located in Rutherford County which they had sold or purchased, they were

“. . thereupon advised and told that said deed or deeds would not be recorded and put of record by said Register of Deeds unless and until the payment of the special realty transfer tax was made to the County Court Clerk and a certificate of payment of said special taxes was stamped thereon.”

Plaintiffs further allege:

“Plaintiffs and others similarly situated were thereby compelled under duress to pay a special tax in order to protect their property interest by the recording of their deeds.
* * * * * *
“. . . and that failure to pay said special tax would have resulted in possible loss of their statutory and constitutional rights to have the protection afforded by registration of said deeds.”

In our opinion, these allegations sufficiently allege that the taxes in question were paid under duress and compulsion and not voluntarily. Bell v. Clay County, supra. See Trower v. San Francisco, 152 Cal. 479, 92 P. 1025 (1907); New Smyrna Inlet Dist. v. Esch, 103 Fla. 24, 137 So. 1 (1931); Coleman v. Consolidated Realty Company, 239 Ky. 788, 40 S.W.2d 387 (1931); Matin v. La Moure County, 27 N.D. 140, 145 N.W. 582 (1914).

It has been aptly said that the terms “voluntary” and “involuntary,” when used with reference to the payment of taxes, are not applied in their ordinary sense. Singer Sewing Machine Co. v. Teasley, 198 Ala. 673, 73 So. 969 (1916); Maxwell v. San Luis Obispo County, 71 Cal. 466, 12 P. 484 (1886). Thus, with respect to the payment of taxes, it has been recognized that a payment may be voluntary although it is made unwillingly and, on the other hand, it is held that it is not necessary for the taxpayer to be subject to physical force or that his volition be actually overriden in order that a payment may be deemed involuntary. Annot., When May Payment of Tax or Assessment be Regarded as Involuntary or Made Under Duress, 64 A.L.R. 9, 11 (1930). It has been further recognized that the rules of contract law which are applied to determine whether a payment was made or an obligation incurred under duress do not properly apply to the payment of taxes. Thus, in Chicago v. Klinkert, 94 Ill.App. 524, 527 (1901) the court said:

“Some confusion has, perhaps, arisen from the application of decisions in cases arising upon private contracts to the very different facts of payments of license fees or taxes illegally demanded. There would seem to be a clear distinction between the case of a contract between parties, where there is a consideration moving on each side, and it is sought to set aside the contract on the ground of duress, and the case of the payment of a tax or license fee to a municipality under the demand of a void ordinance.”

Keeping in mind these precautions, we consider the general principles by which our decision must be determined. First, it is generally agreed that if a taxpayer pays an illegal tax demand, with full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity for making such payment at the time, such a payment must be deemed to be voluntary, and cannot be recovered back. City of Memphis v. W. M. S. Co., 46 Tenn. App. 153, 326 S.W.2d 828 (1959); 72 Am. Jur.2d 343 State and Local Taxation § 1081 (1974).

“However, the trend is toward greater liberality in recognizing the implied duress under which payment of a tax is almost always made, and even when no seizure of the taxpayer’s goods is imminent, if he is put at a serious disadvantage in the assertion of his legal rights in defending proceedings brought to collect the tax, justice may require that he be at liberty to avoid this disadvantage by paying promptly and bringing suit on his own side. He is entitled to assert his supposed right on reasonably equal terms.” Id. at § 1080.
“In order for a payment of taxes to be deemed involuntary, there must be some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment, over the person or property of the party making the payment, from- which the latter has no reasonable means of immediate relief except by making the payment. But, in order to render such a payment involuntary, it is not necessary that there be any technical duress, in the usual sense of the term. Rather, in determining whether a payment of taxes is voluntary or involuntary, the real question is whether there was such an immediate and urgent necessity for the payment as to imply that it was made under compulsion.” Id. at § 1081.

See also Union Pacific Railroad v. Dodge County, 98 U.S. 541, 25 L.Ed. 196 (1879).

In Bell v. Clay County, supra, this Court said that:

“An illegal tax wrongfully collected by a county may be recovered, if paid under duress sufficient to create an urgent and immediate necessity. .
“The payment of a sum of money to avoid the hazard of a disproportionately larger sum is sometimes treated as an involuntary payment, made under duress, so that a suit to recover the sum paid may be maintained.” 168 Tenn. at 8-9, 73 S.W.2d at 685-86.

The Court in the Bell case found that duress was sufficiently alleged, reciting the facts as follows:

“The case for the complainant is that his pending civil action to recover, on a contract obligation, a sum of money many times in excess of the tax involved was resisted on the ground that his claim arose from his exercise of a taxable privilege in Clay county, for which he had not paid the tax due to the state and county. Complainant knew that the county had not levied such a tax and believed that his payment of the state tax in another county entitled him to exercise the privilege in Clay county. However, his stake was so great he could not afford to risk his right to sue on his claim, and although the collecting officers of the state and county were completely passive, making no demand upon him, he paid double the tax, and penalties, as authorized by the revenue act, Pub. Acts 1931 (Second Extra Session), chapter 13, article 4, section 17. The payment was $690. The sum involved in the pending litigation was more than $5,000.” 168 Tenn. at 7-8, 73 S.W.2d at 685.

Sufficient duress has also been found when administrators or executors were' denied the right to file probate papers or secure testamentary letters unless they paid a fee imposed by an unconstitutional enactment, since payment under such circumstances was deemed to be involuntary. Trower v. San Francisco, supra; Malin v. La Moure County, supra.

We find that the decision of the Kentucky court in Coleman v. Consolidated Realty Co., supra, is the most persuasive authority which has come to our attention, for the reason that it involved an unconstitutional statute imposing taxes almost exactly like that involved in the instant case. The statute there was the Mortgage Recording Tax Act which levied a tax upon the privilege of having mortgages recorded and empowered the county clerk to refuse to record mortgages unless the tax was prepaid. We quote extensively from the Coleman case as follows:

“In Middendorf v. Goodale, supra, it was held that a recording officer would not be compelled to record a mortgage until the tax was paid. In the Louisville Gas & Electric Company Case, the Supreme Court said: ‘It is said that it is a tax upon a privilege which' the owner or holder of the instrument creating a lien is free to accept or reject. But for practical purposes there is no such option, for, as this court recently held, there is a practical necessity to record such instruments because, if not recorded, the statute overrides them in favor of purchasers without notice and creditors; and the choice is like one made under duress.’
“The substance of the Supreme Court’s holding is that a mortgagee was placed by the state law under the compulsion of paying the recording tax or else losing the protection afforded by recording the mortgage. . . . The appellee could have refused to pay the tax and thus could have foregone the privilege of recording its mortgage, but by so doing it would have lost the substantial value of its property for mortgage credit purposes. The mortgage would have been valid as between the mortgagor and mortgagee, but would have afforded the latter no protection against innocent purchasers for value or intervening lien holders without notice.
“In determining whether a payment of taxes is voluntary or involuntary, the real question is whether there was such an immediate or urgent necessity for the payment as to imply that it was made under compulsion. Union Pacific Railroad Co. v. Dodge County, 98 U.S. 541, 25 L.Ed. 196. In State ex rel. McCardy v. Nelson, 41 Minn. 25, 42 N.W. 548, 550, 4 L.R.A. 300, the register of deeds refused to receive a deed for a record until the taxes upon the land had been paid. A statute provided that he should not receive a deed for record until the auditor • had certified that all taxes had been paid. The grantee in the deed tendered to the auditor the sum of $125.50 in payment of the taxes on the land and demanded a receipt. The tender and the receipt asked for were refused for the reason that an additional sum was not included in the tender, which sum was charged as a tax upon the property under a special act of the Legislature. It was claimed that this tax was illegal. Suit was brought to compel the auditor to accept the tender of $125.50. In holding that mandamus was not the proper remedy, but that the plaintiff should have paid the alleged illegal tax and brought suit to recover it back on the ground that it was paid under compulsion, the court said:
‘The officer, of course, could not certify that the taxes were paid while this tax stood undischarged, and its validity undetermined. The register of deeds was prohibited by law from recording the deed until the fact of payment should be thus certified to him. The relator could not secure the recording of the deed by which she had acquired title to this land. If not recorded, she was liable, by force of our registry law, to be wholly divested of her title, either through a subsequent conveyance from her grantor to any innocent purchaser who might pay the tax, and place his deed on record, or through the recovery and docketing of judgments against her grantor. Such a possible result the relator was wholly powerless to prevent, except by the payment of the tax. The opportunity for her to interpose a defense to the tax in the tax proceedings, and to secure an adjudication as to its validity, would not occur for a considerable time after the conveyance to the relator, and almost always in such cases some interval must elapse between the time of the grant and the time when an adjudication could be secured upon that subject; and in the meantime the security of the title acquired must depend upon circumstances beyond the control of the grantee. The inducements which the law thus imposes upon a grantee of lands to pay a tax of inconsiderable amount, rather than to suffer his title to valuable lands to be thus jeopardized, may well be deemed to amount to compulsion. The coercion is certainly as real, and of substantially the same nature, as in the case of a distress of goods.
‘Indeed, men of ordinary prudence would not generally hesitate to pay at once such a demand as is involved in this tax, rather than to incur the risk of losing their entire estates by not placing their deeds on record. Both upon the ground of reason and of authority such a payment, made under protest, should not be regarded as voluntarily made. The parties interested do hot stand upon equal terms. The law, in effect, compels the payment.’
“. Under the Mortgage Recording Tax Act, the mortgagee, in order to avail himself of the protection afforded by the recording act, was left no choice but to pay the recording tax. If the tax was not paid, he could not receive the benefit of the recording act and would incur the risk of losing his superior lien on the mortgaged property, at least, until he had gone into the courts and established the invalidity of the Mortgage Recording Act.
“In a business such as the one engaged in by appellee, the mortgagee must be in a position to record its mortgages immediately in order to enable it to continue in business. Unless it was permitted to record its mortgages promptly, it would be unable to carry on its business. The action of the clerk, therefore, in refusing to record the mortgage until the tax was paid, as he was authorized to do in Middendorf v. Goodale, supra, amounted to duress, and the appellee in paying the tax acted under compulsion. If payment of an illegal tax is made under duress, it need not be paid under protest to entitle the payer to recover it back. On the other hand, in the absence of a statutory provision, a mere protest, of itself, does not render a payment of taxes involuntary. (Citations omitted.)
“It follows that the involuntary payment by appellee is recoverable under section 162 of our Statutes.” 40 S.W.2d at 388-89.

The case at bar is essentially identical to that decided by the Kentucky court in Coleman and by the Minnesota court in State ex rel. McCardy v. Nelson, supra. We agree with the conclusion reached in each of those cases that illegal taxes paid in order to obtain registration and recordation of deeds or other instruments of conveyance of real estate are paid under duress and coercion, rather than voluntarily, thus entitling the taxpayer to maintain an action to recover such taxes. This conclusion is consistent with the principles announced in Bell v. Clay County, supra, that taxes wrongfully collected by a county may be recovered “if paid under duress sufficient to create an urgent and immediate necessity” and that “[t]he payment of a sum of money to avoid the hazard of a disproportionately larger sum is sometimes treated as an involuntary payment, made under duress, so that a suit to recover the sum paid may be maintained.” 168 Tenn. at 9, 73 S.W.2d at 685-86. See also 72 Am.Jur.2d 342 State and Local Taxation § 1081 (1974).

Accordingly, we reverse the decree of the Chancery Court and remand this cause to that court for further proceedings consistent with this opinion. Costs are adjudged against appellees.

HENRY, C. J., and FONES, COOPER and HARBISON, JJ., concur.

      . For a special exception, see T.C.A., § 67-933, which requires that public utilities and railroads protest payment of county, as well as state and municipal, taxes as a prerequisite to contesting validity of assessment of such taxes.


author: HENRY, Chief Justice.

text:
    STATE of Tennessee ex rel. Elliott OZMENT v. Dorothy RAND et al.
    Supreme Court of Tennessee.
    June 28, 1978.

      Wayne B. Glasgow, Jr., Berry & Berry, Franklin, Crawford, Ozment & Bolin, Nashville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Kenneth R. Herrell, Asst. Atty. Gen., Nashville, for appellees.
   OPINION

HENRY, Chief Justice.

In this mandamus action the sole question is whether a candidate who, pursuant to § 2-509, T.C.A., requests that his name not appear on the ballot may withdraw his request and have his name restored to the ballot. The Chancellor responded in the negative. We affirm.

I.

On June 1, 1978, Elliott Ozment filed his qualifying petition as a candidate for membership in the House of Representatives of the Congress of the United States. At this time the incumbent congressman, Clifford Allen, was hospitalized as a result of an acute heart condition and was reported to be in critical condition. Subsequently, it developed that Congressman Allen was making satisfactory progress toward a recovery and he announced that he would be a candidate for reelection. Because of this development Ozment asked the Election Commission of the counties comprising the Fifth Congressional District to withdraw his name as a candidate.

On June 18, 1978, Congressman Allen died; and on the following day, Ozment filed a- rescission or revocation of his withdrawal with the respective election commissions. The Davidson County Commission declined to honor Ozment’s request. This suit ensued.

II.

Section 2-509, T.C.A., provides, in pertinent part:

Each qualified candidate’s name shall be placed on the ballot . . unless the candidate dies ... or unless the candidate requests in writing that his name not appear on the ballot and files his request with each of the officers with whom he filed nominating petitions . . . A candidate’s request to withdraw shall be filed no later than twelve (12) noon prevailing time on the- seventh day after the qualifying deadline for the election. (Emphasis supplied.)

It will be noted that the action of a candidate in withdrawing operates per se to preclude his name from being placed on the ballot. Nothing further need be done; the Election Commission has no discretion about the matter. Nor may a candidate’s name be removed in any other way or at any other time.

Ozment’s withdrawal was absolute, unequivocal and unconditional:

I hereby certify that I wish to withdraw my name as a candidate for U.S. Representative for the 5th Congressional District of Tennessee in the Democratic Primary, and I hereby direct the Election Commission in Cheatham, Robertson and Davidson Counties to remove my name from the Democratic Primary ballot. (Emphasis supplied.)
/s/ Elliott Ozment
/t/ Elliott Ozment

This certificate left no doubt as to intent; the respective election commissions had no discretion. Upon its filing Ozment ceased to be a candidate, and he was in precisely the same position as if he had not originally qualified. We cannot read into the statute a provision for reinstatement where the legislature provided for none.

It is in the public interest that good people offer themselves as candidates for public office, and maximum participation in the elective process is a worthy objective, but the orderly administration of the election laws of our state demands that statutory requirements relating to candidacy be met. There must be stability in the elective process. ' To this end the Legislature has wisely imposed conditions, restraints and deadlines.

In effect, we are asked, on a limited basis, to reopen the qualification procedure and let all who had previously qualified and withdrawn reinstate their respective candidacies. Fundamental fairness would demand that if the process is reopened for this group, it be reopened for all and the result would be an unwarranted court-decreed exception to the statutory scheme for the qualification of candidates.

The Legislature took note of the situation produced by the withdrawal or death of a candidate and, by § 2-511(c), T.C.A., provided, in part:

If a candidate in a primary or non partisan general election dies after the qualifying deadline . . . leaving only one (1) candidate or no candidates for the nomination or office, additional candidates may qualify for the election for that nomination or office by filing their petitions ... no later than twelve noon prevailing time on the twentieth day before the election.

When this section is read in conjunction with § 2-509, there is no escape from the conclusion that the legislative scheme is that so long as the death of a candidate leaves two or more competing candidates, they, and they alone, will constitute the candidates to be voted upon by the electorate. We cannot read more into the comprehensive election code of our state. To do so would be an invasion of the province of the Legislature.

The action of the Chancellor in declining to issue the peremptory writ of mandamus is affirmed.

The election commissions of Robertson and Cheatham Counties are not named parties to this controversy, and technically this opinion is not binding upon them. We would suggest, however, that this opinion accurately reflects the applicable law. The public interest in an orderly election demands that they be bound by the result we reach. Permitting the election commissions of these two counties to restore the names of withdrawn candidates to the ballot would result in voter confusion and in a very real sense would operate to disfranchise all voters in those counties who elected to cast their votes for any withdrawn candidate. Time is now of the essence. Ballots must be printed, the absentee voting process must be commenced, and final arrangements for conducting the election must be made. The public interest demands that this controversy be concluded and that the highly significant matter of the selection of a Representative in Congress from the Fifth Congressional District of Tennessee be accomplished through the use of uniform ballots.

Affirmed.

FONES, COOPER, BROCK and HARBI-SON, JJ., concur.

      . Ozment’s written request was so filed.


author: DROWOTA, Judge.

text:
    William Howard HUTCHISON, Jr., et ux., Plaintiffs-Appellees, v. Robert L. PYBURN et ux., et al., Defendants-Appellants .
    Court of Appeals of Tennessee, Middle Section.
    April 29, 1977.
    Rehearing Denied June 10, 1977.

      Richard D. Taylor, Glasgow, Adams, Taylor & Philbin, Nashville, for appellants.
    Frank Grace, Jr., Willis & Knight, Nashville, for appellees.

       No petition for certiorari filed. Approved for publication by Presiding Judges of the Three Divisions of the Court.

   OPINION

DROWOTA, Judge.

This is a case involving fraud in the sale of realty in which plaintiffs-vendees were awarded both rescission of the deed and punitive damages by the Chancery Court of Davidson County. Since the case is before us without a bill of exceptions, our recitation of the facts follows the allegations of plaintiffs-appellees and the findings of the Chancellor.

In January of 1973, plaintiffs William and Jo Lynn Hutchison purchased a house and lot from defendants Robert and Carol Pyburn for $24,000.00. Of this amount, $23,500.00 represented a loan from Home Federal Savings & Loan Association which was secured by a deed of trust. Defendant Jack Williams built the house and sold the property to the Pyburns, and his brother, defendant John Williams, was real estate agent for the Pyburns in the sale of the property to plaintiffs. In July of 1973, plaintiffs noticed seepage from their sewage disposal system, investigated, and discovered that their property had not been approved as a home site by the Metropolitan Board of Health because it lacked the requisite topsoil to sustain the septic tank and overflow field needed for sewage disposal. Further, the Metropolitan Department of Codes Administration had been informed of the problem, and had issued a building permit to defendant Jack Williams only by mistake. Evidently defendant Py-burn had become aware of the sewage problem after purchasing the property from Williams and had prevailed on Williams to release him from his obligation to purchase it, whereupon Pyburn and Williams negotiated the sale to plaintiffs.

Plaintiffs brought suit, alleging that the defendants Pyburn and Williams knew of the property’s condition and that there was no practical means of correcting it at the time of the sale. They charged that defendants’ failure to inform them of the sewage problem amounted to fraud and deceit, and that the condition of the property represented a breach of the warranties contained in the deed. The Chancellor dismissed the case against defendant John Williams, but entered a decree in favor of plaintiffs against the Pyburns and Jack Williams. The decree allowed plaintiffs rescission of the contract, incidental damages in the form of expenses incurred in connection with the property, moving costs, and attorney’s fees, from all of which was deducted the reasonable rental value of the property for the period of plaintiffs’ occupancy. In addition to the sum due plaintiffs in incidental damages, which was set at $3,168.94, the Chancellor assessed $5,000.00 in punitive damages against the defendants and made a specific finding that defendants’ misrepresentation was fraudulent. Defendants now appeal from the decree of the Chancellor, presenting two assignments of error to support their contention that the award of punitive damages was improper.

Initially we must reject defendants’ second assignment of error, in which they argue that punitive damages were improperly awarded because plaintiffs made no attempt to mitigate their damages. The contention is based on several depositions sent to this Court by order of the Chancellor dated July 9, 1976. The trial court lost jurisdiction of this case on July 6, 1976, sixty days after entry of its final decree on May 7. For this reason the Chancellor’s order was a nullity and we cannot consider the depositions. Further, had the depositions been sent here under a valid order, we would still be precluded from considering them, for there is no known procedure for this Court to review certain depositions without a bill of exceptions. It is elementary that a bill of exceptions cannot be considered if it does not contain all the evidence introduced in the case. See Ransom v. State, 116 Tenn. 355, 96 S.W. 953 (1906). A fortiori, then, we could not consider the incomplete testimony of several depositions in a case such as this, wherein no bill of exceptions has been filed at all. Since the pleadings and memorandum opinion of the Chancellor, the only items that remain available for our consideration in this case, contain no mention of the issue of mitigation of damages, this assignment of error must be overruled.

Defendants also assert that the trial court erred in awarding punitive damages for misrepresentations incident to a contract when rescission of the contract and deed was also decreed. The absence of a bill of exceptions is also important here, for it means that we cannot review legal conclusions based upon findings of fact by the Chancellor but are limited to a review of those errors not involving examination of any facts. See Fletcher v. Russell, 27 Tenn. App. 44, 177 S.W.2d 854, 859 (1943). We must also presume conclusively that every fact admissible under the pleadings was found favorable to plaintiffs-appellees. Dattell v. Tidwell, 512 S.W.2d 550, 551 (Tenn.1974). Accordingly, our review of the punitive damages issue must be confined to the purely legal question of whether such damages may be awarded in a case in which equitable rescission is also decreed.

Punitive or exemplary damages are awarded to punish a defendant for his wrongful conduct and to deter others from similar conduct in the future. Liberty Mutual Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760 (1963); Booth v. Kirk, 53 Tenn.App. 139, 381 S.W.2d 312 (1963). They are awarded in cases of fraud, malice, gross negligence, or oppression, or in similar cases involving wilful misconduct. Inland Container Corp. v. March, 529 S.W.2d 43 (Tenn.1975); Liberty Mutual Ins. Co. v. Stevenson, supra. Such damages relate to the nature of the defendant’s actions in inflicting or causing the injury rather than to the extent of the injury that results. Inland Container Corp. v. March, supra; Schwab v. Int’l Ass’n of Bridge Workers, 482 S.W.2d 143 (Tenn.App.1972).

In Tennessee it is established that courts of equity are empowered to award punitive damages. Jones v. Morrison, 62 Tenn.App. 50, 458 S.W.2d 434 (1970); Gill v. Godwin, 59 Tenn.App. 582, 442 S.W.2d 661 (1967); Kneeland v. Bruce, 47 Tenn.App. 136, 336 S.W.2d 319 (1960). Kneeland was an injunction action by a plaintiff who had been fraudulently induced to sign two mortgage notes and trust deeds and had consequently lost her property to a bona fide purchaser. Both compensatory and punitive damages were awarded. The court upheld the latter award with the statement that Chancery Courts have jurisdiction to give punitive damages “in proper cases.” 336 S.W .2d at 325. In Gill, the defendant fraudulently induced the plaintiff to undertake an obligation, secured by a mortgage, to have defendant erect a building on plaintiff’s vacant lot. Defendant’s only purpose in doing so was to take the lot by foreclosure. In upholding an award of punitive damages, the court found that the authority of Chancery Courts to make such an award was established “in actions involving fraud.” 442 S.W.2d at 663. Thus, in Tennessee an award of punitive damages is permissible in equity, and fraud is proper conduct by defendant on which to base such an award.

One objection raised to the award of punitive damages in this case is that it is inconsistent with rescission of the deed under the doctrine of election of remedies. That doctrine estops a plaintiff who has clearly chosen to pursue one of two inconsistent and irreconcilable remedies from later resorting to the other. Barger v. Webb, 216 Tenn. 275, 391 S.W.2d 664 (1965); Barnes v. Walker, 191 Tenn. 364, 234 S.W.2d 648 (1950). The “essential element” here is “that the remedies be inconsistent.” Holder v. Martin, 219 Tenn. 165, 407 S.W.2d 461, 465 (1966). A good example of such inconsistency is furnished by Barger, supra, in which plaintiff’s acceptance of a settlement in her suit for conversion against a bank that had repossessed her property was held an election that estopped her from later suing for a statutory remedy under the statute that then regulated repossession under conditional sales contracts. Since allowance of the statutory remedy would have provided double redress for a single wrong, it was found inconsistent with the cause of action for conversion in which plaintiff had gained a settlement. There is no such inconsistency, however, between the remedy of rescission and an award of punitive damages. The latter, as we have already noted, is designed to penalize and deter, and results from the nature of defendant’s conduct rather than from the harm it causes. The character of punitive damages, then, is in no wise inconsistent with rescission and its concomitant remedies of restitution and incidental damages. The latter are all aimed at redressing the harm done the plaintiff and, while this means they may be considered inconsistent with a remedy such as compensatory damages, which also aims at redress but by a different method, they may not be so considered with respect to the deterrent sanction of punitive damages. Thus, plaintiffs’ choice of rescission as a means of redress is not inconsistent with their request for punitive damages and does not estop them from making that request.

Similarly, punitive damages do not conflict with the theoretical aim of equitable rescission, which is to return the parties to the status in which they were prior to the transaction. See Simmons v. Evans, 185 Tenn. 282, 206 S.W.2d 295, 297 (1947). That aim is simply one approach to redressing the wrong done to plaintiff, an approach that differs from that of compensatory damages, which are intended to redress the wrong by directly compensating the plaintiff for what he has lost. But again, punitive damages are not intended to redress the plaintiff’s wrong, but to make an example of the defendant’s conduct. Since they thus relate to considerations totally different from those of rescission, punitive damages neither frustrate rescission’s redressing of plaintiff’s wrong by return of the parties to the status quo, nor are they inconsistent with it.

Cases often announce the rule that there must be proof of “actual damages” before punitive damages may be awarded. Liberty Mutual Ins. Co. v. Stevenson, supra; Allen v. Melton, 20 Tenn.App. 387, 99 S.W.2d 219 (1936). The cases are unclear, however, as to the meaning of “actual damages” in this context. It has been logically suggested that the phrase should mean no more than that the plaintiff cannot get punitive damages without proving a valid cause of action, that is, without showing that he has been legally injured in some way, which is really a roundabout way of saying that there can be no cause of action for punitive damages alone. See Dobbs, Remedies § 3.9 at 208-10 (1973); 22 Am. Jur.2d Damages § 241 (1965). However, probably because injury to the plaintiff is asserted as a cause of action for compensatory damages in most cases in which punitive damages are asked, courts sometimes seem to view the “actual damages” rule as requiring proof or award of compensatory damages as a basis for punitive damages. Such an impression is created in Liberty Mutual, supra, wherein our Supreme Court stated that “[fjor one to obtain . [punitive] damages it is necessary . that a predicate must have first been laid wherein actual damages have been awarded.” 368 S.W.2d at 761. On the other hand, in Allen, supra, which was cited by the court in Liberty Mutual, this Court spoke of “actual damage,” “actual loss,” and the absence of a right to sue for punitive damages alone in stating the rule. Allen thus appears to lean more in the direction of an approach requiring only proof of a valid cause of action. That approach, applied broadly, would allow recovery of punitive damages if plaintiff, in addition to showing the requisite degree of bad conduct and intent by defendant, could merely prove his entitlement to injunctive relief or nominal damages. But we need not go so far here in construing “actual damages” not to mean strictly an award of compensatory damages. Returning to the case before us, we hold simply that plaintiffs’ proof of their entitlement to rescission of the deed, refund of the purchase price, and incidental damages such as moving expenses, shows sufficient harm and loss to them to satisfy the “actual damages” prerequisite to recovery of punitive damages in Tennessee.

Finally, defendants point to a proposition which we agree is the general rule in Tennessee and elsewhere: punitive damages may not be recovered in an action for breach of contract. See Bland v. Smith, 197 Tenn. 683, 277 S.W.2d 377 (1955); Johnson v. Woman’s Hospital, 527 S.W.2d 133 (Tenn. App.1975). This case, however, is not one for breach of contract, for plaintiffs asked that the contract be made a nullity by rescission. Further, the pleadings and memorandum of the trial court indicate that the main thrust of the action is a claim of fraud and misrepresentation against all the defendants, although an additional claim of breach of warranty was asserted against the Pyburns, with whom plaintiffs were in privity. Thus, regardless of any overtones of contract that may appear in this suit, there also clearly exists here a cause of action against all defendants for the sort of tortious misconduct required as a basis for recovery of punitive damages in cases like Inland Container, supra. For this reason, such a recovery cannot be defeated by the rule that punitive damages are unavailable in contract actions.

We are aware of no case ruling on the availability of punitive damages in the precise context of the remedy of rescission and incidental damages presented here, and we realize that the Tennessee cases holding punitive damages available in equity also have generally been ones in which ordinary compensatory damages were awarded. See Jones, supra; Gill, supra. After examining the question closely, however, we are unable to perceive any good reason to preclude the award of punitive damages in a suit for equitable rescission and incidental damages such as this one. Indeed, logic compels us to hold that, as a matter of law, punitive damages are available in such a case if the plaintiff can demonstrate the requisite degree of bad conduct and intent on the part of the defendant. Since we have no bill of exceptions by which to review the correctness of the Chancellor’s findings in regard to defendants’ conduct and intent, we must presume that those elements possessed that degree of culpability needed to justify an award of punitive damages, and that plaintiffs were entitled to such an award.

Affirmed.

SHRIVER, P. J., and TODD, J., concur.

ON PETITION TO REHEAR

Defendants have filed a petition to rehear, supported by a succinct argument, and plaintiffs have replied. Both sides agree that the purpose of a petition to rehear is to call the Court’s attention to authority overlooked rather than to reargue the case. See Abernathy v. Chambers, 482 S.W.2d 129 (Tenn.1972); Knox County v. Moncier, 224 Tenn. 361, 455 S.W.2d 153 (1970). The argument defendants now press again asserts the inconsistency of punitive damages with rescission and the preclusion of the former by election of the latter. Since defendants raise nothing that was not considered on our original hearing of the case, the petition to rehear must be denied.

In denying the petition, we emphasize that in making our decision in this case we gave careful consideration to the arguments persuasively made by defendants that the rescission theory of returning the parties to the status quo ante is inconsistent with an award of punitive damages. However, we believed and continue to believe that the merits and logic of that technical approach are outweighed by those of the approach we have taken, which is that punitive damages and rescission are not inconsistent because the fundamental purpose of the former, to punish the defendant’s actions, is not inconsistent with the fundamental purpose of the latter, to redress the plaintiff’s injury. In other words, we think that in a rescission action the theory of placing the parties in the status quo ante and ignoring their negotiations ought to be applied only in assessing the redress due the plaintiff for his injury, and that punitive damages are punishment for the defendant rather than redress to the plaintiff and should be considered independently of the rescission theory. In addition, we believe that our approach advances two related and sound policies. One is not unduly to burden the plaintiff, who is the wronged party, in making his choice of redress between rescission and compensatory damages by forbidding him to couple a request for punitive damages with rescission, which may often provide a smaller recovery than compensatory damages to begin with. The other is to prevent the plaintiff’s choice of redress from allowing the defendant, who is the wrongdoer, to escape the punishment that the law of punitive damages imposes for certain types of conduct.

In sum, our opinion in this ease was the result of a careful consideration of many factors, among which were all the points defendants now raise in their petition to rehear. The petition is denied.

SHRIVER, P. J., and TODD, J., concur.

      . This interpretation of the actual damages requirement is supported by the very recent opinion of our Supreme Court in Whittington v. Grand Valley Lakes, Inc., 547 S.W.2d 241 (Tenn.1977). There, the Court held that an award of compensatory damages for trespass and injury to land was unjustified, because the defendant had already repaired the damage he had done to the land. Nevertheless, the Court upheld an award of punitive damages against the defendant.
      After briefly reviewing the cases establishing the actual damages requirement in Tennessee and alluding to the rules followed in other jurisdictions, the Court in Whittington said that “[t]he underlying consideration seems to be that there must be some actual loss supported by proof.” 547 S.W.2.d at 243 (emphasis added.) The Court did not, however, “feel any need to alter, erode or modify prior Tennessee case law,” because it found in the case before it that “actual damages were clearly demonstrated” and had been “pre-paid ... by the [defendant’s] expenditure of time, effort and money in restoration.” Id.

      . Our holding is supported by some law that has emerged fairly recently in other jurisdictions. For example, in Village of Peck v. Denison, 92 Idaho 747, 450 P.2d 310 (1969), the court allowed an award of punitive damages when the primary remedy against defendants was injunction, reasoning that proof of a right to equitable relief insures that a legally protected interest has been invaded as well as does proof of entitlement to actual damages.
      California has reached a result similar to our result in this case under a statute declaring that there is no inconsistency between rescission and damages and allowing complete relief in rescission cases, as long as duplicate recovery is not permitted. Cal.Civ.Code § 1692 (West). See, e. g., Ward v. Taggart, 51 Cal.2d 736, 336 P.2d 534 (1959); Esparza v. Specht, 55 Cal. App.3d 1, 127 Cal.Rptr. 493 (1976); Mahon v. Berg, 267 Cal.App.2d 588, 73 Cal.Rptr. 356 (1968); Millar v. James, 254 Cal.App.2d 530, 62 Cal.Rptr. 335 (1967).
      In Z. D. Howard Co. v. Cartwright, 537 P.2d 345 (Okl.1975), the court allowed buyers rescission and punitive damages for fraudulent misrepresentation under U.C.C. § 2-721.
      Other cases lend some indirect support to our approach. See, e. g., Holden v. Construction Machinery Co., 202 N.W.2d 348 (Iowa 1972) (punitive damages allowed in conjunction with restitution in stockholder’s derivative suit); International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex.1963) (punitive damages allowed along with disgorgement of profits obtained in violation of fiduciary duty); Seegers v. Spradley, 522 S.W.2d 951 (Tex.Civ.App.1975) (choice of equitable remedy of specific performance does not, of itself, preclude punitive damages).


author: PARROTT, Presiding Judge (E.S.).

text:
    EAST PARK UNITED METHODIST CHURCH, Appellee, v. WASHINGTON COUNTY, Tennessee, Appellant.
    Court of Appeals of Tennessee, Eastern Section.
    Dec. 6, 1977.
    Certiorari Denied by Supreme Court May 1, 1978.
    Brooks McLemore, Jr., Atty. Gen., Robert J. Ames, Asst. Atty. Gen., Nashville, Walter L. Price, Johnson City, Thomas W. Patton, Sp. Counsel, Knoxville, for appellant.
    Olen G. Haynes, Johnson City, for appel-lee.
   OPINION

PARROTT, Presiding Judge (E.S.).

In this inverse condemnation action Washington County appeals from a verdict and judgment of $15,000.00 awarded to the East Park United Methodist Church for the closing of a street near where the church is located, thereby terminating its right of ingress and egress and easement of way.

Washington County assigns as error: (1) the circuit judge’s refusal to charge the jury that an abutting landowner, none of whose property has been taken, may not recover for injuries, damages and inconveniences not special to him but suffered in common with other members of the public; (2) the circuit judge’s refusal to instruct the jury that circuity of travel and diversion of traffic are non-compensable, with any injuries or inconveniences therefrom being no different in kind but merely in degree from that sustained by the general public; (3) the circuit judge’s refusal to charge the jury that designating highways as controlled-access highways is an exercise of police power and property owners whose property has not been taken, but suffers a depreciation in value, are not entitled to compensation; (4) the circuit judge’s refusal to instruct the jury that persons purchasing property in the proximity of public roads do so with notice that they may be changed without compensation to the owner; and (5) there is no material evidence to support the jury verdict which is excessive and a result of passion, prejudice and caprice.

The appellee, East Park United Methodist Church, is located on the corner of the Grover Street and Pine Street intersection in Johnson City, Tennessee. When the church purchased this property, complete ingress and egress was afforded to and from the property and along Pine Street, which was constructed and maintained by the City. The Tennessee Department of Highways appropriated a portion of Pine Street, below the point where the church’s property abuts the street, for the construction of the Appalachian Highway through the city. This appropriation closed a portion of Pine Street located between the church property and the next intersecting street, thereby creating what is generally termed a “cul-de-sac.” This closing affected the church’s easement of way over Pine Street and the right of ingress and egress to the church property from that street and the next intersecting road.

Following the first jury trial of this matter in which the church received a verdict of $16,000.00, a new trial was granted the County. The second trial resulted in a jury award to the church of $15,000.00 from which the County is now appealing.

The first and second assignments of error can be consolidated as a requested instruction that an abutting property owner, whose property is not taken, cannot recover for damages and inconveniences from circuity of travel or diversion of traffic which are not special to him but shared by the general public. We find that this assignment of error is without merit based on the court’s charge to the jury and the controlling Tennessee law in this area.

The circuit judge charged the jury in pertinent part:

. it is the established law in this State that the owner of property which abuts upon a public street has a right to ingress and egress between his property and the street and a right of passage in the street bounding his property. Members of the Jury, I charge you as a matter of law that such property right is called an easement of access or an easement of way in the street. I further charge you that such easement of way attaches not only to that portion of the street immediately adjacent to his property, but extends beyond his property and along the street on which his property abuts in either direction to the next intersecting street. Members of the Jury, I further charge you that such an easement of way or easement of access is a property right which can not be taken or the value thereof seriously impaired without compensation to the owner to the extent if any that the property has diminished in value as a result thereof. Thus, Members of the Jury, if an obstruction is erected within these limits, that is within the limits of to the next intersecting street from the owner’s property. If an obstruction is erected within these limits on the adjacent street so as to destroy or seriously impair a land owner’s easement of access over said street and his right of ingress and egress to and from his property, this constitutes a taking of a property right for which compensation must be paid to the extent if any that the value of the property has been diminished. I further charge you that the right of ingress and egress even though a property right may be more or less valuable according to the property and the destruction and impairment of such a right is a proper matter of compensation only to the extent of the value of the right thus taken. I further charge you, Members of the Jury, that personal inconvenience or annoyance or discomfort in the usé of property are not actionable types of injury and may not and should not be taken into consideration in this case.

The court’s charge adequately and correctly states the law in Tennessee as it was established by our Supreme Court in Illinois Central Railroad Company v. Moriarity, 135 Tenn. 446, 186 S.W. 1053 (1916):

It is well settled by our former decisions that every abutting owner has a right of ingress and egress and that he has an easement of way in the street which bounds his property. We think it a just and fair result to hold that this easement of way or easement of access extends along any street or alley upon which his property abuts, in either direction, to the next intersecting street. An obstruction of the adjacent street within these limits is a taking of such private easement of way for which compensation must be made. (Supra at 458, 186 S.W. at 1055).

The court in Moriarity did not base this right to compensation on circuity of travel or inconvenience but on the abutting owner’s separate and distinct property right in the use of the street to gain access to his property from highways intersecting within a one-block area. The court adopted the view that “the right of the public in an open highway is of passage over it, and that this right the abutting owner has in common with the public, and suffers in common with it when deprived of such right by an obstruction to that use, and that there is, in addition to this, at least a special right of access to his land from the next adjacent intersecting streets over the highway on which it bounds, and that such right of access, in either direction the street allows, is a special advantage to the lands lying on it between any two intersecting streets.” Illinois Central Railroad Company v. Moriarity, supra at pp. 454-455, 186 S.W. at p. 1055, quoting from Newart v. Hatt, 79 N.J.Law 548, 77 A. 47, 30 L.R.A. (N.S.) 637. The obstruction of the owner’s personal right to use the abutting street creates the special damage for which compensation must be paid, the amount depending on the extent of damage caused by the obstruction. The court properly instructed the jury that the loss of this property right to use the abutting street was compensable and that the amount of compensation was not to be determined by the inconvenience the closed street caused the church, but was to be based on the damage resulting from the loss of the property right. The circuit judge adequately instructed the jury on the law in Tennessee and it was not error to refuse the specific instructions requested by the County.

The. County next assigns as error the court’s refusal to charge the jury that closing Pine Street was an exercise of police power and property owners whose property was not taken but suffered a depreciation in value were not entitled to compensation. Although it is sometimes difficult to distinguish between the exercise of police power and the power of eminent domain in condemnation actions, the court in Moriarity made the following distinction:

The police power, although it may take property, does not appropriate it to another use as a general rule, but destroys the property. In eminent domain property is taken from the owner and transferred to a public agency to be enjoyed by the latter as its own. (Supra at 459, 186 S.W. at 1056)

Here, the appellee’s easement of way along Pine Street was taken from the church and transferred to the County for the construction of the Appalachian Highway. The County has taken the exclusive use of the street which the Church formerly enjoyed and for this reason, the County must compensate the Church for the taking of this property right.

The appellant next argues that the circuit judge erred in failing to instruct the jury that individuals purchasing property near public roads do so with notice that they may be changed in the public interest without compensation to the owner. The appellee has a recognized property right in the use of the street abutting its property and this right is compensable under the laws of our State. Whether or not the church is charged with notice of a possible taking does not deprive the church of its right to compensation for the taking of its property interest without its consent. The appellant’s assignment of error is without merit and accordingly overruled.

The County’s final assignment of error addresses the jury’s verdict arguing that: (1) there is no material evidence to support the verdict; (2) the verdict is excessive; and (3) the verdict is a result of the jury’s passion, prejudice and caprice. The measure of damages where the property right taken is the right of access to an abutting street is the difference in the fair cash market value of the property prior to the taking or impairment of the access and its value after the taking and the construction of the project for which the property right was taken. See, Brookside Mills, Inc. v. Moulton, 55 Tenn.App. 643, 404 S.W.2d 258 (1965). The circuit judge properly instructed the jury on the determination of damages as follows:

You will take the fair cash market value of this church property on June 9, 1975, before Pine Street was closed. You will then take the fair cash market value of the church property upon the, after the street was closed on June 9,1975. If the value after the closing of the street was less than the value before the closing of the street, whatever the difference in that value is, is the amount of compensation to be awarded to the East Park United Methodist Church in this case.

The appellee’s two expert witnesses testified that the amount of damage to the property as a result of the closing of Pine Street was $15,750.00 and $29,000.00 respectively. The County’s two expert witnesses testified that there were no damages suffered by the church in that the before and after value of the property remained the same and was not affected by the closing of the abutting street. The question of damages for the taking of private property is a question of fact to be decided by the jury. Here there was conflicting testimony concerning the effect of the closing on the church and the resulting damage to the church property. Since our scope of review in a jury trial is restricted to a determination of whether or not there is any material evidence to support the finding of the jury, we conclude the jury’s award of $15,000.00, which was accepted by the circuit judge, could be derived from the evidence presented at trial. Based on our finding that there was material evidence to support the jury’s verdict, we overrule the appellant’s final assignment of error and affirm the lower court judgment.

Judgment affirmed with costs taxed to the appellant.