author: KELLY, Judge. SMITH, Chief Judge

text:
    Carolyn BEST and Stephen Best, Plaintiffs-Respondents, v. FRED WEBER CONSTRUCTION CO., et al., Defendants-Appellants.
    No. 35938.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 20, 1975.
    Motion for Rehearing or Transfer Denied June 26, 1975.

      Paul E. Fitzsimmons, Fitzsimmons & Fitzsimmons, Attorneys, Inc., Clayton, for defendants-appellants.
    William J. Raack, Hearnes, Padberg, Raack, McSweeney & Slater, St. Louis, for plaintiffs-respondents.
   KELLY, Judge.

This appeal from the Circuit Court of the City of St. Louis, Missouri, from a judgment of that Court awarding the plaintiffs, husband and wife, damages for injuries sustained by the wife, Carolyn Best, and loss of consortium and medical expenses incurred on the part of the husband, Stephen Best, presents for review in this court the following Points:

1. excessiveness of verdict indicating bias and prejudice on the part of the jury;
2. trial court erred in not reducing original verdict of $50,000.00 for Mrs. Best and $20,000.00 for Mr. Best below the judgment from which this appeal was taken after reduction by $20,000.00 and $8,000.00 respectively, or a total of $42,000.00;
3. error in overruling defendant’s objection to plaintiffs closing argument which was designed to arouse bias and prejudice against the defendant; and
4. precluding evidence to show precautions defendant took to make the exit ramp safe.

Defendant does not question the sufficiency of the evidence.

The facts of the case are:

Shortly after midnight on Saturday, October 18, 1969, plaintiff-respondents, Carolyn and Stephen Best, were riding in a car driven by defendant, Ted Gilmor. Defendant Gilmor was traveling west on U. S. Highway 44 when he took the westbound exit ramp at Eureka, Missouri. He did not see a sharp curve at the top of the ramp in time to sufficiently slow down and the car traveled down an embankment striking another ear at the bottom of the hill. Neither defendant, Gilmor nor any of the other passengers noticed any warning signs indicating a right turn, although flashing red lights were observed ahead and to the right of the vehicle. In addition, several other witnesses testified that no warning signs were posted along the ramp.

Both the plaintiffs left the scene of the accident in an ambulance and were taken to Rockwood Hospital. Stephen Best was treated and released. Suffering from a spiral fracture of the left femur, Carolyn Best was placed in traction for 9 or 10 days. Thereafter, an operation was performed where the femur was placed back into alignment by the use of metal plates screwed into the bone. She remained in the hospital for approximately another week.

Mrs. Best had suffered as a child from poliomyelitis which had affected both legs. However, she was able to walk by herself with the use of lateral long leg braces and Canadian crutches. After her release from the hospital she was required to use a wheel chair for approximately 6 months during which time she could do very few household chores. Up to the time of trial Mrs. Best still used the wheelchair sometimes in the evening when she was tired. In addition, she has continually experienced leg and back pain. Two orthopedic surgeons testified that she had made a good recovery, but a tendency for her lower limb to roll out and the pain that she experienced were permanent conditions.

Stephen Best testified that he incurred medical, wheel chair and housekeeping expenses in the amount of $4,402.65.

The jury returned a verdict on Count I in favor of plaintiff, Carolyn Best, in the amount of $50,000.00 and on Count II in favor of plaintiff, Stephen Best, in the amount of $20,000.00. Both counts were against defendant Fred Weber Construction Company but in favor of the co-defendant, Ted Gilmor.

Subsequently, defendant Fred Weber Construction Company filed a motion for a new trial. The trial court stated that if, within 10 days, Carolyn Best would remit the sum of $20,000.00 and Stephen Best would remit the sum of $8,000.00, defendant’s motion for a new trial would be overruled. Otherwise, the motion would be sustained on the ground that the verdict was excessive. Thereafter, the plaintiffs did remit such amounts and the motion for a new trial was overruled. On November 15, 1973, defendant Fred Weber Construction Company filed its Notice of Appeal with this Court.

Defendant’s first point is, we conclude, without merit. Size of verdict alone, and the fact that it might be excessive (as the trial court found here), does not of itself establish that the verdict was the result of bias, passion or prejudice without the showing of some error committed at the trial. Boehm v. St. Louis Public Service Co., 368 S.W.2d 361, 369[9] (Mo.1963). Only the trial court may infer prejudice and bias from the mere size of the verdict, Jones v. Penn Ry. Co., 353 Mo. 163,182 S.W.2d 157,159 (1944), and this because of its better opportunity to measure the general effect of the trial proceedings on the jury. Appellate courts, on the other hand, although empowered to correct the excessiveness of a verdict in a proper case by remittitur, may not infer prejudice from the mere size of the verdict alone. Jones v. Penn Ry. Co., supra. Here, the trial court considered the size of the verdict, determined it to be excessive although not the result of bias and prejudice on the part of the jury, and ordered a remittitur. Unless there was some error committed at the trial we must affirm.

Defendant’s second point, like its first, is likewise without merit. If the evidence, viewed in the light most favorable to the ruling of the trial court, affords reasonable and substantial support for the ruling, then it must be affirmed. Morris v. Israel Brothers, Inc., 510 S.W.2d 487, 447[13] (Mo. 1974). The trial court here has actually considered the matter of excessiveness of the jury verdict and, by ordering remittitur, has given an affirmative expression of its own considered view as to what the size of the verdict should be, and the appellate court, while not bound thereby, nevertheless accords the trial court’s ruling very great weight, and regards it so strongly persuasive that except in a case which unmistakably calls for a greater reduction, the judgment of the trial court will not be disturbed on appeal. Morris v. Israel Brothers, Inc., supra.

In resolving the question whether a further reduction is required, in the verdict awarded Mrs. Best, this court must consider the nature and extent of the injuries and losses, plaintiff’s age and diminished earning capacity, if any, the changing economic factors, and the amount awarded and approved in cases of similar or of fairly similar comparable injuries. Helming v. Dulle, 441 S.W.2d 350, 354 (Mo.1969). Carolyn Best, plaintiff-wife, was 28 years of age at the time of the accident. She sustained a spiral fracture of her left thigh. Her hospital stay lasted two and one-half weeks, nine or ten days of which she spent in traction. She underwent surgery whereby metal plates were screwed to the bone of the femur. She was confined to a wheel chair for approximately six months. At the time of trial she was still experiencing pain — a throbbing — in her left leg and in her back, and there was an external rotation attitude of her left lower limb which will be permanent. She tires more easily and occasionally uses her wheel chair.

Although we find no case directly in point, we have a few cases which lend us some guidance in deciding the size of this verdict and its excessiveness. In Lycon v. Walker, 279 F.2d 478 (8th Cir.1960) an award of $29,000.00 to a 30 year old woman for injuries to her left femur was held not to be excessive where her expenses totalled $3,630.00. An award to a 46 year old woman of $30,000.00 for fracture of the neck of the femur in DeMariano v. St. Louis Public Service Co., 340 S.W.2d 735 (Mo.1960) was held not to be “grossly or shockingly excessive.”

Other than loss of his wife’s services and the additional burdens he was thereby caused to have, Stephen Best incurred out-of-pocket expenses of $4,402.65.

With respect to Mr. Best’s claim we have found the following awards approved:

Considering that the erosion of the purchasing power of the dollar amounted to 20% between 1965 and 1970, and the knowledge of a further decline since then, we cannot find these judgments excessive. Bedwell v. Chicago, Milwaukee, St. Paul and Pacific R. R. Co., 509 S.W.2d 81 (Mo.1974).

Defendant has failed to show that the jury was motivated by bias or prejudice and we therefore affirm the trial court on this point.

Defendant’s third Point is directed to the plaintiff’s counsel arguing to the jury that while laws can be passed it doesn’t mean anything unless juries enforce them, “. And don’t kid yourself that Fred Weber Construction Company and other contractors are not going to be aware of what this jury does with reference to . . .’’At this point defendant’s counsel interposed an objection on the grounds that the statement was beyond the scope of proper argument. This objection was overruled and plaintiff’s counsel continued: “Don’t kid yourself that they are not going to be aware of what your verdict is and what it is going to mean to other road contractors. You have to determine if the laws on the books are going to gather dust or whether they are going to be enforced. That is why we are here.”

A trial court has wide discretion in the field of argument and in the absence of clear abuse of its discretion an appellate court is reluctant to find error. Norfolk v. Western Ry. Co. v. Greening, 458 S.W.2d 268, 273[9] (Mo.1970). Defendant argues that this argument of plaintiffs’ counsel amounted to telling the jury that its verdict would teach the defendant and other contractors a lesson. It cites no authority for this position and our research has brought none to light so holding. We believe this line of argument might also be viewed as a statement that by its verdict the jury will make clear what it, as a group of disinterested citizens of the community, views as a failure to exercise the reasonable degree of care necessary in the construction of highway ramps and the marking of same to warn those legally progressing over and upon the ramps of any dangerous conditions existing thereon. We conclude that under the facts of this case the trial court did not abuse its discretion and rule that this Point is without merit.

Defendant’s fourth, and final Point, is that the trial court erred in excluding from evidence that defendant constructed the ramp in compliance with the Missouri Highway Department specifications and that the Missouri Highway Department Engineer supervised all work, including the number and location of warning devices on the ramp, and ordered defendant to open the ramp before the subcontractors installed guardrails and permanent signs.

The cause was submitted to the jury on whether the defendant had negligently failed to give an adequate warning of the dangerous condition of the ramp. The evidence excluded was directed to construction of the highway ramp in accordance with the plans and specifications of the Missouri State Highway Department. The trial court made it clear that it was going to exclude any testimony whereby defendant would attempt to delegate blame to any third party — here the Missouri State Highway Department.

The primary duty to exercise reasonable care for the safety of the general public using a road or highway during improvements or repair rests on the road contractor, and the road contractor in this respect must act reasonably and with due regard to the rights of persons lawfully using the way and is liable for injuries resulting from negligence in the performance of his work. Joshmer v. Fred Weber Contractors, 294 S.W.2d 576, 582[2] (Mo.App.1956).

The liability, aforesaid, is imposed upon the road contractor not by virtue of his contract with a public authority, or upon failure to perform the work in accord with a contract, but upon the tor-tious breach of duty imposed upon the contractor by the common law. Joshmer v. Fred Weber Contractors, supra, 1. c. 583[8], The road contractor’s liability exists regardless of the requirements of its contract with the public authorities and irrespective of any liability on the part of the governmental authority employing the contractor. Thus, a road contractor contracting with a public body is not entitled to avail itself of the immunity of the latter from liability for injuries resulting from either wilful tort or negligence in the performance of its public work. Phegley v. Porter-DeWitt Construction Company, 501 S.W.2d 859, 863[1] (Mo.App.1973).

The evidence excluded here was not with respect to defendant’s efforts to make the ramp safe. What was excluded was evidence which defendant hoped would shift from its shoulders to the Missouri State Highway Department a non-delegable duty on the theory that so long as it constructed the ramp in accord with the plans and specifications of the Department, placed warning signs where directed by the plans and specifications and the Highway Engineer, it had thereby met its duty to exercise reasonable care for the safety of the general public using the highway ramp. We find that the trial court did not err in excluding this evidence..

Having disposed of each of defendant’s Points and finding no trial court error, we affirm.

The judgment of the trial court is affirmed.

SMITH, C. J., concurs and files separate concurring opinion.

STEWART, J., concurs in both opinions.

SMITH, Chief Judge

(concurring).

I concur fully in the opinion of the court, but include this concurring opinion to point out what I consider a serious injustice in Missouri’s remittitur practice as it now exists and which this case exemplifies.

Plaintiffs received a substantial verdict from the jury. The trial court, in the exercise of its discretion, reduced that verdict through remittitur by a total of $28,000 based upon defendant’s contention of exces-siveness in its motion for new trial. Plaintiffs were then confronted with accepting that remittitur or undergoing the delay, uncertainty, and strain of another trial. As usually occurs, they accepted the remittitur. Defendant then appealed, raising in this court as its predominant theme the renewed contention of exeessiveness. Plaintiffs having accepted the remittitur were unable to appeal the trial court’s decision on exces-siveness, nor are we asked to determine whether that decision was correctly made. In short, defendant has the benefit of the remittitur, an opportunity to reduce the judgment even more, delay in payment of the judgment, and no risks or adverse consequences from taking an appeal. Plaintiffs, on the other hand, have gained little or nothing from accepting the remittitur, which acceptance may well have been based upon a desire to receive the judgment expeditiously.

I entertain serious doubt that the remittitur entered by the trial court was warranted, at least in part and possibly in toto. If we are going to continue to permit appellate courts to entertain requests for additional remittitur then we should place the gamble for such appeals equally on the parties. Where a defendant has sought and received a remittitur from the trial court, which has been accepted by the plaintiff, such acceptance should not preclude an appellate court from examining the propriety of the remittitur where the defendant thereafter appeals. When the defendant elects to place before this court the amount of the damages by asking for additional remittitur, we should not be limited to deciding whether the action of the trial court was inadequate but should decide also whether it was excessive. Whether under the present law and rules we could so decide I do not reach for no request for such decision has been made.

      . The statement of this Point does not comply with the requirements of Rule 84.04(d), V.A.M.R., in that although it states briefly and concisely the action and ruling of the trial court claimed to be erroneous, it fails to state why it is claimed to be erroneous. A reading of the argument portion of defendant’s brief on this Point reveals that what defendant’s real complaint is, is that it was thereby precluded from setting up the defense more fully discussed in the opinion proper.


source: Caselaw Access Project

author: NORWIN D. HOUSER, Special Judge.

license: Public Domain

text:
    Nancy A. BRAKE, Plaintiff-Appellant, v. MFA MUTUAL INSURANCE COMPANY, a corporation, Defendant-Respondent.
    No. 35893.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Feb. 25, 1975.
    Motion for Rehearing or Transfer Denied. April 14, 1975.
    Application to Transfer Denied May 12, 1975.

      Cox, Moffitt & Cox, Dallas W. Cox, Jr., St. Louis, for plaintiff-appellant.
    William B. England, St. Louis, for defendant-respondent.
   NORWIN D. HOUSER, Special Judge.

Silas William Brake, husband of plaintiff Nancy A. Brake, was killed in a two-car automobile collision caused solely by the negligence of Donald W. Miller. Others killed in the collision between the Brake and Miller vehicles were Miller, Harold G. Brake and one Lorance. Silas William Brake, Harold G. Brake and Lorance .each left surviving a widow and several minor children. Four other persons received serious personal injuries in the collision. At time of collision Miller carried a policy of automobile liability insurance issued by Automobile- Club Inter-Insurance Exchange which complied with the minimum requirements for exception from the suspension provisions of The Motor Vehicle Safety Responsibility Law, Chapter 303, § 303.030, RSMo 1969, V.A.M.S., i. e., subject to limits -of $10,000 because of bodily injury to or death of one person in any one accident and $20,000 because of bodily injury to or death of two or more persons in any one accident. Miller’s insurer filed an interpleader suit against twenty-one persons who had asserted claims of various kinds arising out of the negligence of Miller, and paid $20,000 (the maximum liability under the insurance policy) into the registry of the court. The court ordered the $20,000 prorated among the claimants, awarding Nancy A. Brake $2,600 for her individual claim and $1,400 for the benefit of her five minor children, and awarding sums of from $1,000 to $4,000 to other claimants. Nancy A. Brake gave a receipt but not a release for the $4,000. Her cause of action for the wrongful death of her husband and on behalf of her five children had an agreed value of $50,000.

Silas William Brake, joint owner with his wife Nancy of the automobile in which he was riding as a passenger at time of collision, had purchased and paid premiums on two policies of automobile liability insurance issued by MFA Mutual Insurance Company on two different automobiles. Each policy provided uninsured motorist coverage for Mr. Brake and his spouse in the sum of $10,000 for each person and $20,000 for each -accident. Following receipt of the $4,000 Nancy A. Brake filed this suit against MFA, praying for $40,000 damages under the two insurance policies. MFA moved to dismiss the petition and for summary judgment. Plaintiff filed a coun-termotion for summary judgment. The parties stipulated as to the facts. Upon submission the circuit court denied plaintiff’s motion for summary judgment; sustained defendant’s motion for summary judgment, and rendered judgment in favor of MFA and against plaintiff. Plaintiff appealed.

The Uninsured Motorist Law, § 379.203, RSMo 1969, par. 1, V.A.M.S., requires that automobile liability insurance provide coverage “in not less than the limits for bodily injury or death set forth in section 303.030, RSMo [the Safety Responsibility Law], for the protection of persons injured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.” Paragraph 2 provides : “For the purpose of this coverage, the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified herein because of insolvency.” Paragraph 4 gives rights of subrogation to the insurer making payment under this coverage.

The Motor Vehicle Safety Responsibility Law, Chapter 303, § 303.030, par. 5, sets the limits of the required coverage at not less than $10,000 because of bodily injury to or death of one person in any one accident, and not less than $20,000 because of bodily injury to or death of two or more persons in any one accident.

The provisions of the two MFA policies extending uninsured motorist protection to Silas William Brake and his spouse are contained in Coverage E, Part V of the identical policy forms. Paragraph I obligated MFA to “pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; * * *.” Paragraph 2 defined “uninsured highway vehicle” as “a highway vehicle with respect to the ownership, maintenance or use of which there is no bodily injury ⅜ ⅜ * insurance policy applicable at the time of the accident with respect to any person * * * legally responsible for the use of such highway vehicle * *

The first question is whether Miller’s automobile was an uninsured highway vehicle within the meaning of that term as used in Part V, Coverage E, par. I of the MFA policy.

Plaintiff contends that, as evidenced by the Uninsured Motorist Law, § 379.203, supra, there is a statutory mandate on MFA under an established public policy to pay all sums referred to in par. I; that every insured such as Mrs. Brake is entitled under the uninsured motorist coverage to payment of the damages which she could have recovered had the tort-feasor maintained a policy of liability insurance in a sum sufficient to respond in damages to the extent of the $10,000 statutory minimum; that the term “uninsured motor vehicle” as used in § 379.203 is ambiguous; that it was drafted to comply with and was designed to satisfy the Safety Responsibility Law; that when considered in that frame of reference it makes no sense to extend coverage under which the insured is better off if the tort-feasor has no insurance than if he has some but not enough insurance to pay for the damages inflicted; that the courts ought to allow additional recovery under the uninsured motorist endorsement “whenever the uninsured motorist coverage exceeds the tort feasor’s liability insurance and the tort feasor’s insurance is insufficient to fully indemnify the claimant”; that the policy reference to uninsured motor vehicles conflicts with The Motor Vehicle Safety Responsibility Law, Chapter 303, and is void because in this case it effectively reduces the statutory minimum of $10,000 to $4,000. Plaintiff asks for a liberal construction of the language of the policy to effectuate the legislative intention that indemnity in the minimum sum of $10,000 be afforded against loss inflicted by a financially irresponsible person; contends that the coverage afforded by the Miller policy of insurance was only hypothetically or partially available to her, i. e., to the extent of $4,000 only instead of the $10,000 to which she had a legal right under the Uninsured Motorist Law; that because of the multiple claims made against Miller’s $20,000 coverage the basic policy of the Uninsured Motorist Law has been frustrated; that the words “uninsured highway vehicle” should be construed to include every situation in which the tort-feasor actually has insufficient insurance “for whatever reason” to cover and pay in full all claims against him, up to the limits of the uninsured motorist protection he has purchased.

Uninsured motorist statutes are to be liberally construed to accomplish their highly remedial purpose, which is “' “to give the same protection to the person injured by. an uninsured motorist as he would have had if he had been injured in an accident caused by an automobile covered by a standard liability policy.” ’ ” Webb v. State Farm Mutual Automobile Ins. Co., 479 S.W.2d 148, 151 [3] (Mo.App.1972). Under the guise of construction, however, the courts are not at liberty to extend and enlarge the scope of the Uninsured Motorist Law by declaring an insured motorist to be an uninsured motorist, unless the statute itself clearly provides an exception to cover the case. MFA’s policies afford protection against injuries, etc. inflicted by an uninsured, highway vehicle. The policies define such a vehicle as one with respect to the use of which there is no bodily injury insurance applicable at the time of the accident with respect to the person legally responsible for its use. The statute relates to uninsured motor vehicles and provides no exception which would cover the case before us. Here the tort-feasor’s motor vehicle was covered by a liability insurance policy which complied with the minimum requirements of the Safety Responsibility Law.

The term “uninsured motor vehicle” as used in § 379.203, par. 1 and the term “uninsured highway vehicle” as used in the MFA policies, are not ambiguous, as claimed, but are terms of common meaning and understanding. “Un” means not. An uninsured vehicle is one which is not insured. When language is plain, straightforward and suspectible of only one meaning there is no room for judicial construction because there is nothing to construe. Swaringin v. Allstate Insurance Co., 399 S.W.2d 131, 133 (Mo.App.1966); Leggett v. Missouri State Life Ins. Co., 342 S.W.2d 833, 851 (Mo. banc 1960). Where language in an insurance policy is unambiguous and does not offend against public policy it must be accorded its plain meaning ánd it must be enforced as written. “For, to do otherwise would be to make a new contract for the parties * * * in contravention of the long-recognized and oft-invoked rule that '[cjourts are without authority to rewrite contracts, even insurance contracts, although it may appear that in some respects they operate harshly or inequitably as to one of the parties. * * * ’ ” Kisling v. MFA Mutual Ins. Co., 399 S.W.2d 245, 253, and authorities cited.

Clearly Miller’s automobile does not come within either the language of the statute (“uninsured motor vehicle”) or that of the MFA policies (“uninsured highway vehicle”). Miller’s vehicle was not uninsured. On the contrary, Miller owned a policy of liability insurance on his vehicle in amounts prescribed by and in full compliance with the minimum requirements of the law. Miller’s automobile was insured and the insurance was applicable at the time of the accident. Plaintiff ’failed to sustain her burden of showing that the uninsured motorist provisions of the MFA policies afford coverage to her as a result of this accident. MFA is liable under its policies “only in those instances where the guilty tortfeasor is either uninsured or [his] insurance carrier becomes insolvent within a period of [two years after the accident] and is unable to respond to damages under its insurance policy. Such limited coverage may not be extended except by clear and unambiguous provisions of a duly enacted statute or the insurance policy sued upon. The insurance policies] in the case sub judice contain no provision purporting to extend or expand the coverage beyond that required by the statute.” Golphin v. Home Indemnity Co., 284 So.2d 442, 444 (Fla.App.1973).

To hold in favor of plaintiff would require the exercise by this Court of powers it does not possess, namely, to revise the statute and reconstruct the contract entered into between the parties by ruling that an “uninsured” vehicle includes an insured vehicle, in a situation not covered by the Uninsured Motorist Law, viz., where the liability insurer is unable to make full payment with respect to the legal liability of its insured within the specified limits because due to a multiplicity of claims arising out of a single accident the limited proceeds of the policy must be divided among and distributed to several claimants on a pro rata basis. This we decline to do.

If the General Assembly had intended that the term “uninsured motor vehicle” cover this situation it would have so provided in § 379.203. The lawmakers made one exception, by providing in par. 2 that the term “uninsured motor vehicle” includes an insured motor vehicle where the liability insurer becomes insolvent. That exception, however, does not cover this case. No exception was made by the General Assembly for the protection of an injured party where multiple claims reduce his participation in the proceeds of the tort-feasor’s policy. There are several other conceivable fact situations in which the general public policy of the Uninsured Motorist Law may be frustrated but for which the General Assembly has made no provision. For instance, where the tort-feasor’s insurer denies liability; where the tort-fea-sor’s policy is issued in an amount less than the limits prescribed by the Safety Responsibility Law, or where although the tort-feasor is insured in compliance with the law and there is only one person injured the damages for which the tort-fea-sor is legally liable far exceed $10,000. Perhaps the General Assembly will review the advisability of further amendment of § 379.203, in the light of this case and other conceivable hardship cases, to provide broader protection under uninsured motorist coverage in specified cases. In the meantime the courts must enforce § 379.-203 as it is written.

The majority of other jurisdictions which have passed upon this and closely related situations involving uninsured motorist statutes and comparable policy provisions have come to the same conclusion we have reached. We align ourselves with the majority as exemplified by the following authorities: Travelers Ins. Co. v. Bduzer, 39 Cal.App.3d 992, 114 Cal.Rptr. 651 (1974); Villarreal v. Texas Farmers Insurance Co., 510 S.W.2d 633 (Tex.Civ.App.1974); Kemp v. Fidelity & Casualty Co. of N. Y., 504 S.W.2d 633 (Tex.Civ.App.1973); Golphin v. Home Indemnity Co., supra; Lund v. State Farm Mutual Automobile Ins. Co., 342 F.Supp. 917 (W.D.Okla.1972) ; Gordon v. Phoenix Ins. Co., 242 So.2d 485 (Fla.App.1970); Continental Ins. Co. v. Wallace, 233 So.2d 195 (Fla.App.1970); Smiley v. Estate of Toney, 44 Ill .2d 127, 254 N.E.2d 440 (1969); Detrick v. Aetna Casualty and Surety Co., 261 la. 1246, 158 N.W.2d 99 (1968).

Plaintiff relies upon Porter v. Empire Fire and Marine Ins. Co., 106 Ariz. 274, 475 P.2d 258 (banc 1970), and Kirkley v„ State Farm Mutual Ins. Co., 17 Cal.App.3d 1078, 95 Cal.Rptr. 427 (1971). Porter allows recovery under uninsured motorist coverage where, although the tort-feasor is not uninsured, his insurance is not sufficient to cover multiple claims arising out of the occurrence, on the theory that otherwise the protection expected by the injured party and intended by the legislature in passing the financial responsibility laws would not be afforded; that while $10,000 is said to be available under the tort-fea-sor’s policy of insurance it is only theoretically available to the injured party (is only “paper coverage”) because actually it is subject to proration among multiple claimants. The court emphasizes that under defendant’s theory the injured party would be in a better position if the tort-feasor had been totally uninsured. Although that is the anomalous result, this does not authorize a court to enlarge the meaning of words which are clear and unambiguous or write into the statute something not there. We cannot accept the reasoning of the Porter case. Nor are we persuaded by Kirkley, in which the uninsured motorist coverage was brought into play on the basis of prior California decisions holding that uninsured motorist coverage is applicable where the offending vehicle is under-insured, that is, covered by liability insurance in an amount less than the minimum prescribed by the financial responsibility law. We cannot in good conscience hold that “uninsured” includes “underinsured.” Furthermore, the policy definition of “uninsured automobile” in Kirkley is distinguishable from the language in the MFA policies before us.

In view of our holding we need not consider other points raised by appellant, namely, the question of “stacking,” and whether interest runs from date of accident or date of judgment.

Judgment affirmed.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


text:
    Shelia GARBER, Plaintiff-Respondent, v. Amos SCOTT et al., Defendants, Amos Scott and St. James A.M.E. Church, Defendants-Appellants.
    No. 35953.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 24, 1975.

      Fitzsimmons & Fitzsimmons, Attorneys, Inc., Northcutt Coil, Clayton, for defendants-appellants.
    Sommers & Holloran, Inc., James P. Hol-loran, St. Louis, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

Action for damages for personal injuries sustained by Shelia Garber when a motorcycle on which she was riding as a passenger was struck by a station wagon driven by Amos Scott in the intersection of Lindbergh Boulevard and Blake Avenue in St. Louis County. Plaintiff sued Scott, the church of which he was assistant pastor, and Daniel Holland, operator of the motorcycle. A jury returned a verdict for plaintiff for $25,000 against all defendants. From the judgment entered upon the verdict Scott and the church have appealed.

Appellants’ first point is that the court erred in giving’ Instruction No. 2 submitting negligent failure to keep a careful lookout for the reason that the charge was not supported by substantial evidence.

Lindbergh Boulevard, a north-south 5-lane main traffieway, has three northbound lanes and two southbound lanes, separated by a 4-foot grassy divider strip, south of the intersection. Blake Boulevard has two eastbound lanes and one westbound lane, separated by a 4-foot median divider strip, west of the intersection, and one eastbound lane and two westbound lanes, separated by a 4-foot divider strip, east of the intersection. Traffic is controlled at the intersection by electric stop-and-go lights. Westbound traffic on Blake turns left (south) on the green light; there is no green arrow; and there is a sign requiring such traffic to yield to eastbound traffic on Blake. Lindbergh is 60-65 feet wide from east to west edge. Each lane is approximately 10 feet wide. The following diagram roughly presents the physical situation:

The collision occurred at 9 p. m. on September 8,1971. It was dark. Street lights, vehicle lights and lights in stores in the vicinity were turned on. Visibility of cars from every corner of the intersection to every other comer was good. The general lighting condition of the intersection was “bright” — admittedly good. Scott had “no trouble observing the entire intersection.” The weather was dry and fair.

There was evidence from which the jury could have found the following facts: Holland, with plaintiff seated behind him, holding around his waist, approached the intersection on Blake, operating his motorcycle westwardly, intending to turn left (south) on Lindbergh. He brought the motorcycle to a stop at the intersection, because the red light was against westbound traffic. Immediately to his left, in the lane next to the divider strip, an automobile driven by one Chackes was also waiting for the light to turn green. The left-turn signal lights on both Holland’s motorcycle and Chackes’ automobile were blinking. Cater-eornered across the intersection, headed in the opposite direction (east) on Blake, also waiting for the light to change, was an automobile and next behind it was the station wagon driven by Scott. These two eastbound vehicles were in the south or outer lane of Blake.

Scott observed the blinking light on the Chackes automobile but did not see the blinking light on the motorcycle. When the traffic light changed from red to green each of the four vehicles above described moved forward. Chackes advanced halfway across the intersection, with little if any turning movement to the left or south, and then he stopped, yielding to eastbound traffic. The automobile in front of the station wagon moved into and out of the intersection. The motorcycle started forward, turning left in front of Chackes’ stationary automobile, at a speed of 3 to 5 m. p. h. (“enough to keep balance”) and continued south on Lindbergh at an undiminished speed of 3 to 5 m. p. h. The station wagon, which had stopped 26 feet west of the west curb line of Lindbergh extended, started forward, slowly accelerating as it entered the intersection to a speed of less than 10 m. p. h. Scott was intending to cross Lindbergh and continue east on Blake. Neither driver saw the other in time to avoid a collision between the station wagon and the motorcycle. Although lighting conditions and visibility were good; although Scott saw the Chackes automobile move out and observed it come to a stop, and notwithstanding there were no obstructions to prevent Scott from seeing and he could have seen the motorcycle, Scott did not actually see the motorcycle or its riders at any time until the motorcycle was straight ahead in front of him, directly in his path, and only 3 feet away. He had passed the west curb line and had passed the entire first (western-most) lane of Lindbergh before he saw the motorcyclists. At that time the front end of the station wagon was a car length (16 feet) south and the same distance west of the front end of the Chackes automobile. The station wagon was in very good operating condition. It had good brakes, tires and steering. As soon as he saw the motorcyclists Scott immediately applied the brakes, which took ahold but too late to avoid a collision. The station wagon did not swerve; its horn was not sounded. The collision occurred in the southwest quadrant of the intersection, in the second lane from the west curb line of Lindbergh. The right front part of the station wagon collided with the right rear portion of the motorcycle, throwing its occupants off and seriously injuring plaintiff. The station wagon shoved the motorcycle five feet east of point of impact and came to rest with the motorcycle under its front part.

These facts form a sufficient basis for a jury finding that Scott failed to keep a careful lookout, as submitted in Instruction No. 2. “The proper test of failure to keep a careful lookout as a proximate cause is whether in the exercise of the highest degree of care the driver of the defendant’s vehicle could have seen the other vehicle in time to have taken effective precautionary action in avoidance.” Marshall v. Bobbitt, Mo., 482 S.W.2d 439, 442. And see Heberer v. Duncan, 449 S.W.2d 561, 563 (Mo. banc 1970); Zalle v. Underwood, 372 S.W.2d 98 (Mo.1963). As Scott started up from a stopped position and followed the car in front of him, approaching and entering the intersection, he had the duty to exercise the highest degree of care and to maintain a careful and vigilant lookout ahead and laterally ahead, Gerdel v. Broccard, 428 S.W.2d 492 (Mo.1968); 4A Missouri Digest Automobiles, a duty “not relieved or excused by the fact that he [was] favored by a green light nor [did] that fact confer upon him an absolute right to proceed across the intersection regardless of the movement of other traffic, Collier v. St. Louis Public Service Co., Mo.App., 298 S.W.2d 455. While the duty of care is commensurate with the circumstances (one of which is the green light in his favor) he cannot rely solely on the ‘go’ signal or drive blindly into the intersection without looking. Collier v. St. Louis Public Service Co., supra; 60 C.J.S. Motor Vehicles § 360 b, p. 855. A motorist favored with a green traffic signal has the right to assume that non-emergency vehicles approaching on an intersecting street will obey the red light and stop, and to rely upon that assumption until he knows or by the exercise of the highest degree of care should know the contrary. Collier v. St. Louis Public Service Co., supra.” Politte v. Miller, 301 S.W.2d 839, 842 (Mo.App.1957). A duty on the part of Scott to act arose when in the exercise of the highest degree of care he should have seen and realized that the motorcycle was likely to proceed into his path on the favored boulevard and that there was danger of collision. McAlister v. Urhahn, 492 S.W.2d 19 (Mo.App.1973); Tener v. Hill, 394 S.W.2d 425 (Mo.App.1965); 4A Mo.Dig.Automobiles

From Scott’s testimony it is clear that at no time did Scott see the motorcycle as it approached his path; that as to the motorcycle Scott drove blindly into the intersection. No reason is shown why Scott failed to observe the oncoming motorcycle, with its left-turn signal blinking. Lighting conditions were good. Scott could see, and did see, other vehicles and objects. Scott saw the Chackes automobile, with its left-turn signal light blinking, enter the intersection and come to a stop. Scott admitted that he never did see the motorcycle prior to the collision, but did for the first time see the motorcyclists when they were in Scott’s path, directly in front of him, only 3 feet away. Considering the evidence in the light most favorable to plaintiff, was there time and space left to Scott, after he should have seen the oncoming motorcycle and should have sensed the danger of collision, to have taken effective preventive measures to avoid the collision? The jury could not reasonably have found a duty on Scott’s part to act while Holland was executing the left turn in front of Chackes. Had Scott observed this movement he would have been entitled to rely on the assumption that Holland would obey the red light confronting Holland, stop and yield to Scott. After completing the quarter circle left turn, however, Holland proceeded at a continuous speed in a direct course toward Scott’s path, and sometime during that southern course it would have become reasonably apparent to a very careful driver observing the scene that there was danger of a collision. The jury reasonably could have found that after completing his left turn and starting south Holland drove the motorcycle at a consistent speed of 3-5 m. p. h. for a distance of at least 18 feet to point of collision. At the average of those two speeds, 4 m. p. h., the motorcycle would travel 6 feet per second. At 3 m. p. h., the more favorable speed, it would travel 4½ feet per second. This means that Holland’s “southern drive” took from 3 to 4 seconds from the time it began until the collision occurred. Giving Scott ¾ second for reaction time (ample in view of his testimony that within a 3-foot space he reacted and applied brakes which took ahold) leaves from 2¼ to 3¼ seconds within which Scott could have taken preventive action, if the danger of collision was apparent at the time Holland commenced his southern course. The jury could reasonably have found that Scott could have seen the motorcycle as it executed the left-hand turn and cut in front of Chackes’ automobile and then proceeded toward Scott’s path against the red light, without slackening speed; that it should have been apparent to Scott as the motorcycle started south without hesitating that the operator of the motorcycle did not intend to yield to Scott, thereby calling upon Scott for action in avoidance. The jury could also find that Scott had time and space within which to take effective precautionary measures. Scott’s station wagon was in good mechanical condition. His brakes and steering apparatus were in good operating condition. Scott had stopped for the red light at a point 26 feet west of Lindbergh — 34 feet west of the west line of the lane in which the collision occurred — some 38 feet west of the point of impact. Scott started to accelerate “some distance back of Lindbergh,” but he accelerated “slow!/’ to “maybe ten, not over ten miles an hour” as he entered the intersection. Ten m. p. h. was the highest estimate of Scott’s speed at any time before collision. There was some evidence that it was “less than” 10 m. p. h. Scott arrived at that speed slowly, from a standing stop. When Scott started forward there was one car ahead of him in his lane, which he followed at a distance of 10 feet. That car left the intersection. From the foregoing facts the jury could find that Scott was traveling less than 10 m. p. h. at the time when he could and should have seen the motorcycle and appreciated the danger . Traveling at 10: m. p. h. an automobile may be stopped “within a very short space.” Davis v. Schroeder, 291 F. 47, 51 (8th Cir.1923); Edwards v. Dixon, 298 S.W.2d 466, 469 (Mo.App.1957). At 10 m. p. h. an automobile travels 10.6 feet in the reaction time of ¾ second. An automobile with good brakes traveling 10 m. p. h. can be stopped within 9 feet exclusive of reaction time, De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628 (banc 1953), and within 19.6 feet, including reaction time, or within 1.37 seconds after the occasion to stop arises. Edwards v. Dixon, supra. Scott had at least 2¼ to 3¼ seconds and between 15 and 20 feet within which to stop, after allowing for reaction time, but unfortunately he had not maintained the required lookout, as a result of which he did nothing until far too late. He did not know of the danger of collision until the last split second. Even so he had time to react, get his foot to the brake and for the brake to take ahold, according to his testimony, but a collision at that late time was inevitable. The jury not only could have found that the collision was avoidable by stopping within the time and distance available to Scott, but also could have found that had Scott kept a careful lookout, a collision could have been avoided if Scott had slowed down or swerved to the left. There were no other vehicles in the intersection. This is an “almost escaping” case. The impact took effect on the right front part of the station wagon and the right rear part of the motorcycle. The slightest diminution of speed or the slightest movement to the left would have avoided contact between the vehicles.

Appellants’ second point is that the court erred in giving Instructions Nos. 3 and 10, authorizing a verdict against the church upon a finding of negligent failure of Scott to keep a careful lookout, and that Scott was operating the station wagon within the scope and course of his employment; that Scott’s acts were within the scope and course of agency if performed to serve the interests of the church according to an express or implied agreement with the church, and the church controlled or had the right to control Scott’s physical conduct. Appellants make this contention on the ground that there was no evidence that the church controlled or had the right to control his conduct at the time of the accident.

This point is without merit. While there was no testimony in terms reserving to the church control over or the right to control the acts of Amos Scott in the operation of the station wagon, those elements logically may be inferred from the following facts, which were in evidence: The station wagon belonged to the church. Scott was assistant pastor of the church, in charge of youth activities. His superior was the pastor. Scott customarily used the station wagon to do church business. He was on church business that evening. At the time of the accident Scott was on a mission to purchase baby clothes “for one of [his] people he was going to baptise” — for the child of one of the parishioners of the church. Scott was using the station wagon at the time with the approval of the pastor, who was out of town. When the pastor was out of town Scott usually kept the vehicle, it being his duty in the pastor’s absence to “cover” all of the pastor’s duties and responsibilities, such as visiting the sick, etc. The church allowed Scott $50 a month for transportation expenses. The right of the church, through its pastor, to control the means and manner of Scott’s service to the church, and a manifestation by the church to Scott that he might act on the account of the church, and consent by Scott that he so act, inheres in this state of facts, within the meaning of the eases of Madsen v. Lawrence, 366 S.W.2d 413 (Mo.1963), and Wigger v. Consumers Cooperative Association, 301 S.W.2d 56 (Mo.App.1957), cited by appellant, and Leidy v. Taliaferro, 260 S.W.2d 504, 505 (Mo.App.1953), cited by respondent.

Judgment affirmed.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: STERNBERG, Justice.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Chester JENT et al„, Appellees.
    Court of Appeals of Kentucky.
    May 23, 1975.
    Jim Robinson, Gen.- Counsel, Asst. Atty. Gen., Dept, of Highways, Frankfort, Dell M. Wallen, Lexington, for appellant.
    Hoover Haynes, Craft, Barrett, Haynes & Ward, Hazard, Alva A. Hollon, Kenneth 8. Baker, Hollon & Hollon, Hazard, for appel-lees.
   STERNBERG, Justice.

This reverse condemnation action arose after the construction by the appellant of connector roads, connecting Bible Avenue with the newly relocated Ky. Highway 15 at Yicco, in the southern portion of Perry County, Kentucky. The appellees are five individuals who own properties which front on Bible Avenue before and after the construction of the connector roads.

The issues made by the pleadings are twofold: (1) have the properties of the ap-pellees been permanently damaged by a change in surface water drainage, and (2) have appellees been deprived of reasonable access between their properties and Ky. Highway 15.

Prior to the relocation of Ky. 15, the only road to appellees’ properties was from Ky. 1095 in Vicco, across a one-lane, wooden-floor bridge, onto Bible Avenue. Bible Avenue was a blacktopped roadway which ran for 500 to .600 feet at a width of 16 to 18 feet and then narrowed to a width of 12 to 14 feet for the remaining 400 to 500 feet to appellees’ properties. It had a constant grade of approximately 2%. The new Ky. 15 cuts across Bible Avenue and eliminates the one-lane bridge. Both ends of Bible Avenue are linked to the new Ky. 15 by connector roads 16 feet in width. On the end toward Hazard, Kentucky, which is the location at which the landowners have directed most of their criticism, the road is blacktopped and constructed with a maximum grade of 12.16% and on a 78-degree curve. Bible Avenue, as it proceeds in the direction of Whitesburg, Kentucky, is rutted and only partially blacktopped. Minor complaint is made relative to the nature of its approach to and connection with Ky. 15.

There is evidence in the record that after the relocation of Ky. 15 and the connector roads water had flowed into the homes of the appellees. In fact, after being notified of this situation, the appellant moved a drain pipe in an attempt to eliminate the problem.

At the trial in the Perry Circuit Court the appellees testified that their properties had been damaged by two factors: (1) water flow, and (2) deprivation of reasonable access. The appraiser for appellees testified concerning the market value of the properties before and after the construction of the connector roads. While there is testimony that a water flow had occurred as a result of the relocation of Ky. 15 and the connector roads, there is no proof concerning the extent or amount of the alleged damage. In fact, appellees’ appraisal witness, on cross-examination, pointed out that he did not consider water damage as a factor in his appraisal. He further noted that he had not even checked the appellees’ houses for water damage.

Appellant moved for a directed verdict at the close of appellees’ case and again at the close of all the evidence on the ground that the evidence was insufficient to prove ap-pellees’ case. These motions were overruled by the trial court. The jury awarded a verdict of $12,500, $2,500 to each of the appellees. Appellant moved for judgment notwithstanding the verdict and for a new trial. The trial court overruled both of these motions; hence, this appeal.

The only question raised by appellant is whether “the trial court erred in overruling the motions for a directed verdict and the motion for judgment notwithstanding the verdict.”

The appellees argue that the values of their properties were lowered because of (1) a water flow negligently caused by the appellant, and (2) a deprivation of reasonable access to their properties.

Even if it is conceded that the appellant negligently caused the water flow across appellees’ properties, the appellees’ claim on this point still fails because there is no evidence of diminution of value of appellees’ properties as a result thereof. The appellees testified that a water flow had occurred following the road construc- • tion, but failed to offer any proof of resultant damages. In fact, as was pointed out earlier, the appraisal witness of appellees stated that he did not consider water damages a factor in his appraisal. The jury should not be allowed to engage in speculation or guesswork as to the probable damages resulting from the allegedly negligent construction where no evidence is offered on the point. Louisville & Nashville Railroad Co. v. Lankford, Ky., 304 Ky. 192, 200 S.W.2d 297. Damages must be shown with • reasonable certainty. Id.

In Commonwealth, Department of Highways v. Carlisle, Ky., 363 S.W.2d 104, we held that the only access right that the landowner has is a right of reasonable access to the highway system. In Commonwealth, Department of Highways v. Adkins, Ky., 396 S.W.2d 768, we held that, conversely, the landowner cannot be deprived of reasonable access without just compensation. The question of reasonableness of access must be dealt with on a case-by-case basis. Ordinarily, whether the landowner has been deprived of reasonable access is a question of law which should be resolved by the court, but in order for it to be resolved at all it is indispensable that the facts be disclosed. Adkins, supra.

The proof by appellees on the question of whether reasonable access existed after the road construction consisted of testimony that they were unable to use the connector roads on certain occasions when snow had fallen. The fact that it was difficult or impossible to use the road on these occasions was attributed to the increase in the grade of the access from 2% to 12.16%. The inability of the landowners to navigate the approaches on infrequent occasions such as have been delineated does not constitute a loss of reasonable access, and the' trial judge should have determined as a matter of law that the landowners have not lost reasonable access. Appellant’s motion for a judgment notwithstanding the verdict of the jury should have been sustained.

Since the appellees have not been deprived of reasonable access to the highway system and since no permanent damage to their properties has been shown, the judgment is reversed and the case remanded to the trial court with instructions to enter a judgment for appellant dismissing appel-lees’ complaint.

All concur.


author: JONES, Justice.

text:
    Hirotaka Katsumata BRALLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 6, 1975.

      Harold K. Huddleston, Huddleston, Van-Zant & Coyle, P. S. C., Elizabethtown, for appellant.
    Ed W. Hancock, Atty. Gen., Robert W. Riley, Asst. Atty. Gen., Frankfort, for ap-pellee.
   JONES, Justice.

As a result of an accident in which the automobile of Hirotaka Katsumata Bralley struck another automobile and killed Mrs. Willa Gibson; the appellant, Bralley,' was convicted of involuntary manslaughter, second degree. KRS 435.022(2). A judgment was entered pursuant to the jury’s verdict imposing a fine of $1000.

This appeal is prosecuted by a motion, under KRS 21.140(2).

The issues raised on the appeal will be better understood if we first briefly state the essential facts.

Bralley lived in Vine Grove, Kentucky. His girl friend, whom he has since married, lived in Granite City, Illinois. Bralley spent the weekend of June 1, 1973, in Granite City visiting his girl friend. He testified that on Sunday night, June 2,1973, he slept from 7:30 p. m. until 1:00 a. m. Monday, June 3, 1973. He then made coffee, fixed some sandwiches, and left Granite City on Monday morning June 4, 1973, at the early hour of 2:00 a. m. to return home. The evidence reveals that the distance from Granite City to Vine Grove was approximately 250 miles. Bralley had no trouble in his travel from Granite City until he reached Hardinsburg, Kentucky. He testified that he remembered stopping at Har-dinsburg for gasoline. While there, he drank a pepsi-cola. After leaving Hardins-burg he could not recall anything that happened. He stated that it usually took him about an hour to drive from Hardinsburg to where the accident happened. Bralley thought he stopped at the intersection of Ky. Highway # 1882 and Ky. Highway # 144. He then turned left on Ky. Highway # 144. Approximately 300 or 400 ft. from the turn, Bralley’s vehicle left its side of the road and ran head on into a vehicle Mrs. Willa Gibson was driving. Mrs. Gibson was in her lane of traffic on Ky. Highway # 144. She was killed as a result of the accident. Bralley was injured, and hospitalized as a result of the injuries he received.

Mike Witherspoon, an eyewitness to the accident, was traveling in the same direction as Mrs. Gibson. He had followed her from Vine Grove to the place of the accident. Witherspoon testified that just before the point of impact between the vehicle of Bralley and Mrs. Gibson, “I was following the lady, and the gentleman (Bralley) came over the hill and as he came over the hill he kind of veered across the lane and hit the woman.” Witherspoon testified that he and Mrs. Gibson were traveling at about 50 or 55 miles per hour. A number of pictures introduced in evidence show that Bralley’s vehicle hit Mrs. Gibson’s vehicle head on and that most of Bralley’s vehicle was in the lane of Mrs. Gibson. The pictures indicate severe damage to both the vehicles.

Bralley urges that this court reverse the judgment of conviction.

The first contention presented is that the trial court erred in permitting the introduction of a death certificate in evidence. He states that the action of the trial court in permitting the introduction of the death certificate violated his constitutional right to be confronted by the witness.

This court has long recognized that death certificates may be used as pri-ma facie evidence of the facts therein stated. Kirkshouse v. Eastern Kentucky University, Ky., 501 S.W.2d 581 (1973). It is only to the extent that a certificate states an opinion as to legal responsibility for the death that the certificate is not admissible. See Commonwealth Life Ins. Co. v. Hall, Ky., 517 S.W.2d 488 (1974). The certificate in the instant case was offered only to establish the cause of death from a factual standpoint and therefore properly was admitted.

There is absolutely no merit to Bral-ley’s second contention that the corpus de-licti (body of the crime) was not established. Officer Stephens, who investigated the accident, testified that Mrs. Gibson was the victim of the auto accident. She had massive head injuries, and one, possibly two broken legs. She was unconscious and her injuries were extremely serious. These facts, coupled with the death certificate which stated the cause of death as “multiple injuries” as a result of an auto accident, were amply sufficient.

Bralley’s final contention is that the trial court’s instructions improperly submitted to the jury the issue of gross carelessness and negligence. This court is of the opinion that there is merit in this issue. The trial court improperly submitted to the jury the issue of gross carelessness and negligence. The court’s instruction number one, of which Bralley complains is as follows:

“If you believe from all the evidence to the exclusion of a reasonable doubt that the defendant, Hirotaka Katsumata Brailly (sic), in Meade County, Kentucky and within twelve months before the finding of the indictment herein, operated his automobile upon highway 144, a public highway in Meade County, Kentucky, with gross carelessness and negligence (emphasis added), that he ran said automobile upon or against the automobile of Willa Johnson Gibson producing injuries from which she thereafter died, you will find the defendant guilty of involuntary manslaughter and fix his punishment at a fine in any sum not exceeding $5000.00 or confinement in the county jail for any length of time not exceeding twelve months, or both such fine and imprisonment, in the discretion of the jury.”

This court is of the opinion that the form of instructions covering an unintentional killing, either through operation of an automobile or otherwise should be patterned (if so warranted by the evidence) after those set forth in Hemphill v. Commonwealth, Ky., 379 S.W.2d 223, 227 (1964). The court concludes that the evidence in this case coupled with the physical facts shown by the exhibits warrant the giving of an instruction on involuntary manslaughter, second degree, as was given in Hemphill, supra.

The judgment is reversed with directions for a new trial consistent with this opinion.

All concur.


author: HENRY, Justice.

text:
    Everette MOYERS et al., Appellants, v. L. R. SHERROD et al., Appellees.
    Supreme Court of Tennessee.
    June 30, 1975.
    A. Benjamin Strand, Jr., Dandridge, for appellants.
    C. S. Rainwater, Jr., Dandridge, for ap-pellees.
   OPINION

HENRY, Justice.

This suit in chancery was filed as an election contest, seeking to restrain a county election commission from certifying the results of an election and to declare the same to be void.

Five private citizens and residents of Jefferson City comprising a committee known as “Citizens Group Contesting Irregularities in an Election Involving a Referendum concerning the charter of the Town of Jefferson City”, filed suit against the Election Commission for Jefferson County, Tennessee, alleging that their rights as citizens, residents, property owners, and qualified voters of Jefferson City have been violated and that they will suffer irreparable damages as citizens and residents of Jefferson City if the Election Commission certifies the results of an election involving a referendum concerning the City Charter. They allege various and sundry frauds and irregularities, and assert that they are so gross as to void the outcome of the election.

The defendant election commissioners moved to dismiss on various grounds to include insistencies that (1) no referendum election contest can be maintained unless and until the results thereof have been properly and duly certified and (2) an action seeking to void a referendum election must be brought in the nature of a quo warranto' proceeding in the name of the State and on relation of the District Attorney General.

The Chancellor dismissed the lawsuit and the Citizens Committee perfected an appeal to this Court.

We note at the very outset that at the adjourned session of the 1972 General Assembly, there was adopted Chapter 140, which is a complete and comprehensive “election code” for the State of Tennessee. This was carried forward into Tennessee Code Annotated as Title 2.

Section 2-1701, T.C.A., relates to contests and provides in pertinent part as follows:

The incumbent officeholder and any candidate for the office may contest the outcome of an election for the office. Any campaign committee or individual which has charge of a campaign for the adoption or rejection of a question submitted to the people may contest the election on the question. (Emphasis supplied).

The complaint in the instant suit shows on its face that the plaintiffs were not members of a campaign committee having charge of a campaign for the adoption or rejection of a question to be submitted to the people. To the contrary, it affirmatively shows that “the plaintiffs and various other citizens” compose a committee known as “Citizens Group Contesting Irregularities” etc. This Citizen Group, according to the complaint, was obviously created to contest this election.

Prior to the adoption of the general “election code” the proper parties to an election contest were determined by the general case law of the State in the absence of a controlling statute. Walker v. Sliger, 218 Tenn. 657, 405 S.W.2d 471 (1966).

We hold that the right to contest an election in Tennessee is governed by Section 2-1701, and that a group or committee coming into being after an election for the adoption or rejection of a question submitted to the people, has no standing to contest an election.

Moreover, it is an established rule of law in this jurisdiction that the chancery court will not enjoin an election and that rule applies not only to the actual conduct of an election, but to any of the steps in the proceeding “looking to or pertaining to an election”. The canvass and announcement of the result is an inseparable and integral part of an election. O’Neil v. Jones, et al, 185 Tenn. 539, 206 S.W.2d 782 (1947). It necessarily follows that a certification of an election result is an integral part of an election and may not be enjoined. Further, no contest will lie until the returns have been canvassed and the certification has been made.

It therefore, results that this suit may not be treated as an election contest. Assuming, arguendo, that the allegations of the complaint are true and that they are sufficient to void the election, it does not follow that this suit may be prosecuted for the express purpose of vindicating a public wrong. If, as a result of the frauds and irregularities alleged to have been committed, the citizenry of Jefferson City has sustained an injury, it is one that is common to every citizen and resident and cannot be corrected or repaired by an action brought by a private citizen, but must be brought upon relation of the State of Tennessee.

The holding of this Court in the recent case of Bennett v. Stutts, 521 S.W.2d 575 (1975), is analogous. In that case, citizens, residents and taxpayers of Dyer County, filed a complaint seeking to invalidate the election of a county superintendent of public instruction by the quarterly court. Citing Patton v. City of Chattanooga, 108 Tenn. 197, 65 S.W. 414 (1901); Skelton v. Barnett, 190 Tenn. 70, 227 S.W.2d 774 (1950); Badgett v. Broom, 219 Tenn. 264, 409 S.W.2d 354 (1966) we held:

It is the settled law in this State that private citizens, as such, cannot maintain an action complaining of the wrongful act of public officials unless such private citizens aver special interest or a special injury not common to the public generally-

We further held that Tennessee jurisprudence in this regard comports with the overwhelming majority, if not all other jurisdictions.

In the last analysis, election contests in Tennessee are now covered by a specific statute adopted by the Legislature and only those named therein have the right to seek redress in the courts. We do not wish however, to be understood as diluting the right and duty of the District Attorney General, in proper cases, to take appropriate action in cases involving election frauds and irregularities. We address this opinion only to the rights of private citizens to prosecute an election contest or an action in the nature of such contest.

The decision of the Chancellor is affirmed and the costs incident to this appeal are taxed against complainants.

FONES, C. J., and COOPER, BROCK and HARBISON, JJ., concurring.


author: FONES, Chief Justice. PER CURIAM.

text:
    STATE of Tennessee, Petitioner, v. Willie PARKER, Respondent.
    Supreme Court of Tennessee.
    March 24, 1975.
    Rehearing Denied July 21, 1975.

      R. A. Ashley, Jr., Atty. Gen., Weldon B. White, Jr., Asst. Atty. Gen., Nashville, Fleming Hodges, Dist. Atty. Gen., Othal Smith, Jr., Asst. Dist. Atty. Gen., Byers-burg, for petitioner.
    Bruce S. Conley, David G. Hayes, Maness, Conley & Hayes, Union City, for respondent.
   OPINION

FONES, Chief Justice.

Respondent, Willie Parker, hereinafter referred to as “defendant” was convicted, after a jury trial, for possession of marijuana. Punishment was set at eleven months and twenty-nine days in jail and a fine of $250.00. The Court of Criminal Appeals reversed the judgment and remanded for a new trial. The State petitioned for certio-rari, alleging that the Court of Criminal Appeals erred in ruling that the evidence obtained by the search of defendant’s car was inadmissible. We granted certiorari and have heard oral argument.

The facts surrounding the search were presented at a hearing out of the presence of the jury, on a motion to suppress evidence. The testimony of Sergeant Bobby J. Turner of the Union City Police Department was the only evidence adduced on said motion to suppress. The defendant did not testify at the hearing, or at the trial, and did not offer any proof. According to Turner, he received a call from an informant, who had information about some marijuana that could not be discussed on the phone and a meeting was arranged at Tiny’s Drive-In. The officer had received information from this informant on several prior occasions, and it had proved to be reliable.

Sergeant Turner and another officer went to Tiny’s Drive-In, where they met the informant. The informant told Turner that Willie Parker had some marijuana in his car. He said that one pack would be under the dashboard of the car and another pack would be in the bottom of a Prince Albert tobacco can under the regular tobacco. Turner was also told by the informant that the Prince Albert tobacco can was in the glove compartment, according to our interpretation of his testimony. While he did not include this fact when first relating what the informant told him at Tiny’s Drive-In, in describing the search of the vehicle, he said that, “. . .on the tip, we . looked in the glove compartment, got the Prince Albert tobacco can, emptied it out, got one pack of marijuana out of the can, reached under the dash and found the other package.”

A few moments later, the officers saw the defendant, Willie Parker, leaving Tiny’s Drive-In with three or four other men in the car with him. The officers turned around and began to follow the defendant’s car. The car began to weave along the highway, causing the officers to think the defendant was high off of something. The officers stopped the vehicle. They smelled the odor of alcohol coming from the car. They were of the opinion that the defendant was under the influence of alcohol, though he was not charged with that offense.

The officers removed the occupants from the vehicle and searched it on the highway. Turner found two packs of marijuana exactly where the informant had told him it would be located. One pack was found under the dashboard; the other at the bottom of a Prince Albert tobacco can in the unlocked glove compartment. The defendant who was the owner and driver of the automobile then stated that he was just trying it out and that he would kill the S.O.B. that got it for him. The officer testified that he had not had time to obtain a search warrant.

The Court of Criminal Appeals reversed the conviction by relying on the case of Epps v. State, 185 Tenn. 226, 205 S.W.2d 4 (1947). Epps held that an arrest for illegal possession of untaxed liquor was vitiated by the failure of the informant to convey to the police any statement of fact that the amount possessed was over one gallon, and therefore, that a felony was being committed. Since the arrest was not justified upon a charge of committing a felony, it would not have been lawful, without an arrest warrant.

In the present case, the informant told the officers that the defendant would be possessing two packs of marijuana. Whether that statement constitutes reasonable grounds to suspect the commission of a felony is indeed doubtful, since the distinction between misdemeanor and felony possession of marijuana in Tennessee rests on whether the possessor intends to sell, distribute, etc. T.C.A. § 52 — 1432.

Even if the Court of Criminal Appeals is correct in holding that the arrest of the defendant was unlawful, and thus any search incident thereto was also tainted, on the basis of Epps, we do not think that determination is dispositive of the issue.

Both the Fourth Amendment to the United States Constitution and Article 1, Section 7 of our State Constitution prohibit unreasonable searches and seizures. Generally, to meet the test of reasonableness a search warrant is required. One important exception to the search warrant requirement is the search incident to a lawful arrest. Another exception, caused by the need for immediate action under the circumstances, was recognized by the United States Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

In Carroll, the Court set forth two essential conditions needed to establish the validity of a search of an automobile stopped on the highway, without a search warrant. Those conditions are (1) the officer must have reasonable or probable cause to believe the automobile contains items subject to seizure, and (2) the automobile must be movable in the sense that the officer reasonably believes that it may be moved out of the jurisdiction by someone free to do so, and thus the car’s contents may never be found again if a warrant must be obtained. See Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1934); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

Chief Justice Taft in Carroll was careful to express the view that the exception to warrants that he was delineating was not dependent upon the earlier exception of a search incident to an arrest. He said:

“The right to search and the validity,, of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.” 267 U.S. at 158, 159, 46 S.Ct. at 287, 69 L.Ed. at 554.

The question in the case at bar thus becomes, first, did the officer have reasonable or probable cause to believe the automobile contained items subject to seizure?

In determining this question of probable cause to make a warrantless search of an automobile based upon an informant’s tip, we must look to the requirements outlined by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Despite the fact that both of those cases involved warrant applications, it is clear from subsequent decisions of that Court that the same tools of analysis apply as a predicate for an officer’s warrantless action. To permit him to proceed on a less substantial predicate would make it easier for the police to operate without a warrant than with one, and thus discourage their use. This would conflict with our established judicial policy of encouraging the use of warrants.

The two-pronged test of the Aguilar-Spi-nelli analysis in this instance requires that the judge at the hearing on the motion to suppress be informed of (1) some of the underlying circumstances from which the informant drew his conclusions, and (2) some of the underlying circumstances from which the officer concluded that the informant was credible, or his information reliable. We think the testimony of the officer at the pre-trial hearing adequately met the requirements of the second prong.

The first prong requires closer scrutiny. It is not immediately clear from the officer’s testimony whether the informant’s accusation that the defendant possessed marijuana was based on mere suspicion, hearsay, or personal knowledge. However, the information furnished was specific as to the person, the automobile and where the two packs of marijuana would be found in the vehicle. As distinguished from information merely accusing another of having a drug, said specific information strongly implied that the informant had personal knowledge of the facts conveyed to the officer. See Spinelli, supra. When coupled with the officer’s independent observations of the defendant’s weaving vehicle, from which he might reasonably infer that the occupants were under the influence of the drug, we are of the opinion that there was probable cause to believe the defendant’s automobile contained items subject to seizure.

The facts in this case clearly satisfy the second requirement of Carroll, supra, i. e., that the automobile is movable in the practical sense that it will not be there if the officer has to go and get a warrant. In this case the officer had received his information only moments before seeing the defendant weaving down the highway. Similar circumstances were not present in Epps, supra, where the information had been received several days earlier by the police, and there had been ample time to obtain a search warrant. In Epps, Chief Justice Burnett characterized the officer’s actions as akin to a fishing expedition. The facts in the case at bar cannot be cast in that same light. The evidence seized was properly admitted by the trial court.

The Court of Criminal Appeals correctly dealt with the other assignments of error raised, except with regard to the admission into evidence of statements made by the defendant. These statements were ruled inadmissible’ by that Court on the basis of Epps v. State, supra. Since we do not find Epps to be controlling in this case, and because of the difference in content between the statements there and in the present case, we find that the statements were properly admitted by the trial judge in this case.

The judgment of the Court of Criminal Appeals is reversed, and the judgment of the trial court is affirmed.

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

OPINION ON PETITION TO REHEAR

PER CURIAM.

Respondent, Willie Parker, has filed an earnest petition to rehear in this cause. Initially, he alleges that we did not consider his contention that the identity of the informant must be disclosed in this case. This issue was raised in the Court of Criminal Appeals and was rejected by that court on the authority of Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487 (1955).

In our original consideration of this ease, though the opinion does not expressly so state, we concurred that Simmons, supra, was applicable. Upon further reflection we adhere to our previous determination that the Court of Criminal Appeals correctly dealt with this matter. Additional authority for this position is provided in McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Wallis v. State, 220 Tenn. 400, 417 S.W.2d 781 (1967).

The remaining arguments present issues that were given full consideration in the preparation of the opinion in this case and were found to be without merit.

We are not unmindful that our reliance upon the Carroll case, supra, conflicts with an interpretation of that decision in Tenpenny v. State, 151 Tenn. 669, 270 S.W. 989 (1924). At the time Tenpenny was decided the Carroll case was comparatively recent. “Although the Carroll decision involved an interpretation of Section 26, Title II of the National Prohibition Act authorizing the seizure of contraband liquor, the Court made it clear that the search and seizure there involved was consistent with the Fourth Amendment principles.” Liacos, Warrantless Automobile Searches: The' Meaning of Chambers v. Maroney, 34 A.T. L.L.J. 174, 175 (1972).

Subsequent decisions have not limited the holding of Carroll to automobile searches that are authorized by statute as suggested in Tenpenny. This is illustrated by the heavy reliance placed upon the Carroll rationale in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); a case involving policemen who stopped, and later searched, an automobile containing items relevant to certain robberies. Judicial hindsight persuades us that the pristine view taken in Tenpenny of the impact of the Carroll decision was too restricted. To that extent, Tenpenny is no longer viable.

The petition to rehear is denied.


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    Larry T. HOWARD and Gene Roberts, Appellants, v. Teddy L. WILLOCKS, Chairman of the Jefferson County Beer Board, et al., Appellees.
    Supreme Court of Tennessee.
    June 30, 1975.

      C. S. Rainwater, Jr., Rainwater & Rainwater, Dandridge, for appellants.
    A. Benjamin Strand, Jr., Strand & Goddard, Dandridge, for appellees.
   OPINION

HENRY, Justice.

This appeal, from the decision of the Chancery Court at Jefferson City, upholding the action of the Jefferson County Beer Board, arises under the laws relating to the sale of beer and light alcoholic beverages as incorporated in Chapter 2, Title 57, Tennessee Code Annotated.

We are confronted with two first impression and determinative issues, viz.:

1. The power of a Tennessee County to limit the number of retail beer outlets within its confines.
2. The transferability of a beer permit from one designated location to another.

On May 22, 1972 the Jefferson County Beer Board issued appellants a permit to engage in the retail sale of beer in a rural area in Jefferson County. As a result of circumstances over which they had no control, it became necessary for appellants to vacate the premises in which they conducted their business as of January 15, 1975. As a result of this required termination, one of the petitioners purchased a tract of land, also in a rural area of Jefferson County, with the intent that appellants would move their business to that location.

The record reflects that on July 10, 1972, the Quarterly Court of Jefferson County adopted a resolution providing, in substance, that the total number of outstanding permits for the sale of beer at retail in Jefferson County, would be limited to a maximum of ten (10) at any given time. The record further reflects that at all times pertinent to this controversy there were a total of ten (10) outstanding permits, including that held by appellants. It further reflects that there were applications for permits on file. The result of this resolution, the number of permits outstanding, and the existence of prior permit applications was that appellants, instead of applying for a permit, elected to make application for a transfer of the existing permit.

The record further reflects that an application for a permit would have been futile.

A copy of the application for a transfer of the beer permit from the former location to the new location appears in the record and it meets all the statutory (Sec. 57-205 T.C.A.) requirements for the issuance of permits.

A hearing was held on appellants’ application and, according to the minutes of the Jefferson County Beer Board meeting on January 13, 1975, the application was summarily denied, with no reasons being assigned.

Appellants promptly filed petiton for the writ of certiorari in the Chancery Court at Jefferson City. The Beer Board responded with a motion for summary judgment, insisting that there was no authority for the transfer of a beer permit, with the further and alternative insistence that review was by common law writ of certiorari instead of the statutory writ.

The Chancellor sustained this motion, holding that “A county beer committee is without authority to hear and/or to grant a ‘transfer’ of a validly issued beer permit from one designated location to another.” Appellants have perfected their appeal.

I.

A proper analysis and determination of the issues presented in this controversy necessarily involves a consideration of the general powers of Tennessee counties and their specific power and authority under the beer laws.

An excellent statement of the general nature of Tennessee counties will be found in Weakley County v. Carney, 14 Tenn.App. 688, 698 (1932), as follows:

Counties are not created for the purpose of general government, and because of this fact it has been said that they are corporations of low character, and cannot discharge corporate duties in the broad sense in which municipalities can discharge them. In Burnett v. Maloney, 97 Tenn. 697, 37 S.W. 689, 34 L.R.A. 541, it was said in substance that counties have their creation in the Constitution, and the statutes confer upon them all the duties which they possess, prescribe all the duties they owe and impose all the liabilities to which they are subject. Considered with respect to their powers, duties, liabilities, they stand low down in the scale of corporate existence. They are ranked as quasi corporations. They possess no powers except such as are conferred expressly or by necessary implication, and those are strictly construed and must be strictly pursued. They are distinguishable from private corporations aggregate, and from municipal corporations proper, which are more amply endowed with corporate life and function, because such corporations are intended to exercise the general functions of government over the inhabitants within the corporate limits.

In Wright v. State, 171 Tenn. 628, 106 S.W.2d 866 (1937), a landmark case decided under our beer laws, the Court had under consideration a resolution adopted by the Quarterly Court of Lawrence County, in substance, prohibiting the sale of beer upon any premises wherein dancing is permitted; prohibiting the sale of beer after 10:00 p. m.; and prohibiting sales within one thou-' sand feet of any building where a public school or religious service is held. The Court noted its prior decisions holding that the powers entrusted to county courts, emanate from the Legislature and, “hence when a power claimed for them is not conferred it must be held not to exist”. The Court takes note of the vast distinction of powers conferred by the Legislature upon municipal corporations as opposed to those conferred upon counties, in these words:

There appears to be express authority of cities and towns to pass proper ordinances governing the issuance and revocation of licenses. There is express provision for cities and towns to impose additional restrictions, fixing zones and territories, providing hours of opening and closing, and such other rules and regulations as will promote public health, morals, and safety as they may by ordinance provide. If it were intended that the county court should exercise like authority and to make ordinances or resolutions beyond the provisions of the legislative act, this authority, we think, would not have been expressly given to municipal corporations without being given the county court. The language of the statute, granting such authority only to municipal corporations, seems upon its face to exclude county courts from making any regulation beyond the provisions of the statute. 106 S.W.2d at 870.

Again the Court said:

(W)e find no authority for a county court to set up a law unto itself, applicable alone to that county, or to extend the law as defined by the statute. Id. at 871.

In Huffer v. State, 178 Tenn. 644, 162 S.W.2d 381 (1942) this Court held that the beer act “seems upon its face to exclude county courts from making any regulations beyond the provisions of the statute”, and struck down a resolution of the Quarterly Court of Clay County providing that no beer permit should be issued for a longer period than one year.

In Perry v. Sevier County Beer Board, 181 Tenn. 696, 184 S.W.2d 32 (1944), the Court, relying upon Wright, supra, and Huffer, supra, held that a county beer commission had no right to make a regulation prohibiting the sale of beer after 7:00 p. m.

This Court has repeatedly held that counties have no authority other than that expressly given by statute or necessarily implied from the provisions of such statute. Bayless v. Knox County, 199 Tenn. 268, 286 S.W.2d 579 (1955).

Reference to the regulation of the sale of beer as incorporated in Chapter 2 of Title 57, Tennessee Code Annotated in general and to Sections 57-205 relating to county regulation and 57-208 relating to municipal regulation will indicate the very pronounced difference between the authority possessed by cities and counties. Not the least distinction is that Section 57-208 provides in part that:

(C)ities and towns may impose additional restrictions, fixing zones and territories and providing hours of opening and closing and such other rules and regulations as will promote public health, morals and safety as they may by ordinance provide.

Counties are given no such authority. By virtue of this distinction, this Court has held that the authority of a city extends to outright prohibition of the sale of beer. Grubb v. Mayor and Aldermen, Morristown, 185 Tenn. 114, 208 S.W.2d 593 (1947); that municipalities have broad powers in the regulation of the sale of beer and may enact all reasonable measures deemed desirable for the protection of the morals of the community, Gatlinburg Beer Regulation Committee v. Ogle, 185 Tenn. 482, 206 S.W.2d 891 (1947); that Tennessee municipalities are given absolute discretion in the matter of regulation and control of the sale of beer, Ketner, et ah v. Clabo, Mayor, et al., 189 Tenn. 260, 225 S.W.2d 54 (1949); and since they may regulate to the point of outright prohibition, they may exercise a lesser degree of control by limiting the number of establishments. DeCaro v. City of Collierville, 213 Tenn. 254, 373 S.W.2d 466 (1963).

But we reiterate no such authority has been conferred upon the counties of Tennessee.

While the counties did not have the right to make rules and regulations relating to the sale of beer, prior to 1965, they did have the virtually unbridled power to determine whether permits would be issued, and where a permit was denied the applicant had no remedy. State ex rel. Camper v. Pollard, 189 Tenn. 86, 222 S.W.2d 374 (1949). It is apparent from a survey of the reported Tennessee cases prior to 1965, that some of the counties of Tennessee prohibited the sale of beer by the simple expedient of declining to issue permits.

In 1965, the Legislature made a drastic change in this regard. By Section 1, Chapter 105, Public Acts of 1961, Section 57 — 205 T.C.A. was amended by adding at the end thereof a new section which reads in part as follows:

Any applicant seeking a license or permit under this section and who complies with the conditions and provisions of this section shall have issued to him the necessary license or permit and in the event said license or permit is refused, the applicant shall be entitled to a hearing on his application for the issuance of a license or permit. (Emphasis supplied).

By this amendment, the Legislature mandated that an applicant for a beer permit, who complies with all the legal requirements, shall be entitled to have such license or permit issued to him. Fentress County Beer Board v. Cravens, 209 Tenn. 679, 356 S.W.2d 260 (1962). This amendment operates to leave the only issue in cases involving the denial of a beer permit as being “whether or not an applicant, under the proof, has met all the said conditions and provisions”. Cantrell v. DeKalb County Beer Board, 213 Tenn. 568, 376 S.W.2d 480 (1964).

II.

If an applicant is entitled, as a matter of right, to have a permit issued to him for the sale of beer, it necessarily follows that a permit holder seeking to move to a new location has a similar right. It is purely a matter of semantics to consider the application, in such a case, as being for a transfer. Regardless of how it is labeled, either by the applicant or by the beer board, the fact remains that, as a matter of fact and as a matter of law, the applicant is seeking a new permit to engage in the retail sale of beer in a new location. And most assuredly in this case, where the County Court of Jefferson County had adopted a regulatory resolution, clearly in excess of its authority, and in so doing, had forced appellants to label their application as an application for transfer, the county and its beer board would be estopped to assert that the application so made was for a transfer as opposed to an application for a permit.

Moreover, treating the application as being for a transfer, we find nothing in our law that would preclude a county beer board from transferring a permit from one location to another so long as the permittee continues to meet the personal qualifications and the new location meets all of the requirements of the statute. To be more specific, if the permittee and his proposed location meet all of the requirements of Sec. 57-205 T.C.A., the permit may legally and properly be transferred. Any other conclusion would be a triumph of form over substance. This, the law does not require.

We are not unmindful of the statement made in McBride v. State, 195 Tenn. 308, 259 S.W.2d 533 (1953) that:

This Court has held that a permit to sell beer cannot be transferred from one location and used in another. 259 S.W.2d at 534.

This statement comes on the heels of the Court’s having framed the issue before the Court as being “whether a permit to sell beer is assignable”. In support of the dictum hereinabove quoted, the Court cites two Tennessee cases.

The first of these, Tucker v. Carter County Beer Board, 191 Tenn. 210, 232 S.W.2d 38 (1950), involved the revocation of a beer permit in a case whether the permit holder was operating a place of business not established until 1949, under a permit which was issued in 1947. Not having been issued a’ new permit, his use at the subsequent location was obviously illegal and the Court so held.

The second case cited in McBride is Sowell v. Red, 192 Tenn. 681, 241 S.W.2d 775 (1951), wherein the factual situation was that the permit holder had moved to a new location and “(n)o new license was ever [issued] by the Beer Board, and no steps ever taken to transfer the license to the new premises . . .”.

Finally, in McBride, the crux of the Court’s ruling, pertinent to this issue, was that “a permit issued to one person might not be used lawfully by another despite the fact that the location remained the same”.

We do not think that these cases are authority for the naked proposition that a beer permit may not be transferred. As a maximum the import of their holding is that such a permit may not be transferred by unilateral action on the part of the permit holder. We hold that, under Tennessee law, a beer permit may be transferred, upon proper application to the quarterly court or its beer committee, and a showing of full compliance with Section 57-205 T.C.A. We hold that absent such compliance, the permit is not transferrable. Viewed in this light, as we think it must be, there is no variance between our holding in this case and the prior holdings of this Court.

It results that the judgment of the Chancellor is reversed and this cause remanded to the Chancery Court at Jefferson City, with directions to the Chancellor to cause the Beer Board of Jefferson County to issue forthwith a permit covering the property and premises described in their petition.

FONES, C. J., and COOPER, BROCK and HARBISON, JJ., concurring.


text:
    GARAN, INC., et al., Appellants, v. Aubrey B. SURRATT, Appellee.
    Supreme Court of Tennessee.
    June 30, 1975.
    Jerry D. Kizer, Jr., W. Rogers Menzies, Jr., Jackson, for appellants.
    E. E. Deusner, Reynolds & Deusner, Sel-mer, for appellee.
   OPINION

HENRY, Justice.

This is a workmen’s compensation action wherein the only question is whether the injured workman was an employee, as found by the Chancellor, or a casual laborer or independent contractor as insisted by the appellant.

Garan, Inc. manufactures men’s wearing apparel at a plant located in Adamsville, McNairy County, Tennessee. Claimant is a painter by occupation. Injury was sustained when a ladder broke while he was painting Garan’s building.

We hold that claimant was an employee.

Ample material evidence supports the following conclusions:

a. Prior to his employment, claimant learned that Garan was “hiring painters”.

b. His compensation was at the rate of $8.00 per hour and he was paid weekly.

c. Social Security was withheld from his wages and a matching amount was paid by Garan.

d. Income tax was withheld from his earnings.

e. His name was carried as an employee on the forms filed with Internal Revenue Service.

f. He was required to “clock” in and out each day. He was advised that regular working hours were from seven to four.

g. Garan furnished the paint, brushes, ladders, and cleaning materials; claimant furnished his ladder and used some of his brushes.

It is clear that claimant was not a casual employee within the meaning of Section 50-906(b) T.C.A.

Garan relies heavily upon Travelers Insurance Company v. Dozier, 219 Tenn. 525, 410 S.W.2d 904 (1966). This is an excellent ease on casual employment with a comprehensive opinion by former Chief Justice Dyer. In that case, however, the deceased workman was a partner with another painter. The two partners agreed to paint the building at an hourly wage and to keep their own time. Under the facts of that case, the claimant was held to be a casual employee. The Court recognizes — as do we — that “as a general rule, an employee employed for the direct and exclusive purpose of repair and construction work (where the employer is not a contractor or builder) is a casual employee under the statute;” however, the Court went on to say that “the manner and way an employer operates its business determines what types of employment are within or without this statute.” Finally, the Court said that “each case will have to be tested on its own facts.”

We have looked to the “manner and way” Garan operated and have tested this claim on its own facts. Garan clothed this entire transaction with virtually all the indicia of the employer-employee relationship. It converted what was normally a casual employment status into an employer-employee relationship.

We have repeatedly pointed out that this Court does not re-weigh the evidence in workmen’s compensation cases and that our sole, legitimate concern is the presence of any material evidence to support the award. We are not concerned with preponderance nor may we substitute our judgment for that of the trial judge, nor does it matter that, as an original proposition, we might have reached a contrary conclusion. Moreover, this Court does not attempt to determine where the preponderance lies, but will affirm even though the preponderance of the evidence is against the trial court’s findings if these findings are supported by material evidence. Strader v. United Family Life Ins. Co., 218 Tenn. 411, 403 S.W.2d 765 (1966).

The judgment of the Chancellor is, in all respects, affirmed.

•FONES, C. J., and COOPER, BROCK and HARBISON, JJ., concur.