author: HARBISON, Justice.

text:
    EVCO CORPORATION, Petitioner, v. Richard ROSS and Beryl Ross, Respondents.
    Supreme Court of Tennessee.
    Sept. 15, 1975.
    Robert H. Crawford, Chattanooga, for petitioner.

      Charles W. Lusk, Jr., Hall, Haynes, Lusk & Foster, Chattanooga, for respondents.
   OPINION

HARBISON, Justice.

This case involves the construction and interpretation of a lease agreement entered into on April 15, 1972 between the respondents as lessors, and petitioner as lessee.

Although the property rented is valuable commercial property, the lease agreement is very brief. The term of the lease is from April 15, 1972 through April 14, 1977, and the premises covered are located at 5621 Brainerd Road, in Chattanooga, on which there was situated a restaurant building, or lounge, known as “The Light Fantastic”.

The lessee agreed to pay rental of $1300 per month, beginning on April 15,1972, and the lessor was authorized to take possession of the premises without legal action in the event there was a default for as much as 30 days in the rental payments. The lease provided that the lessee should have full use of the furniture and fixtures on the premises, and should return the same at expiration of the lease in as good condition as when first accepted, with the exception of wear and tear.

The lease then contained the following provisions:

“It is understood and agreed that the lessee shall be responsible for the minor repairs that may become necessary to the building structure during the term of the lease, and if said lessee desires to make any addition to the said building structure or to otherwise alter, modify or change same, consent of the lessee [sic] shall first be obtained.
“Lessee shall carry liability insurance upon the premises sufficient to save the lessor harmless for any liability that might arise in the use of the said premises.
“The lessor shall be responsible for all major repairs that may become necessary to the building structure during the term of the lease and should same occur lessor shall make necessary repairs within a reasonable period of time following the oc-currance [sic].
“The lessor shall carry fire insurance upon the building structure for any damage thereto by fire.
“The lessee shall pay any increase in property taxes being assessed during the term of the lease.
“It is understood and agreed that the lessee shall return the premises back to the lessor at the expiration of the lease, in as good condition as when premises first occupied, wear and tear excepted from ordinary use.”

On April 19, 1973, a fire occurred on the premises, the origin of the fire not being disclosed in the record. The building and contents were very substantially damaged, but the only issue before us concerns the building structure, and not its contents. Both the Chancellor and the Court of Appeals in the present litigation have concurred in finding that the damage to the building was so severe as to amount to total destruction, from a practical standpoint. There being substantial evidence to support this finding, this Court is bound by the same and that question is not open to further review here. T.C.A. § 27-113.

This suit was instituted by the lessee to enforce the covenants of the lease, it being alleged that portions of the building could still be used, particularly the outside walls, and that Mr. Ross, one of the lessors, had requested the lessee to procure plans for the rebuilding, stating that thereupon the lessors would rebuild. The complaint alleges, however, that thereafter the lessors stated that they had received proposals for other and more profitable uses of the property, and that they had declined to restore the building which had burned. The suit sought, in effect, specific performance of an alleged duty on the part of the lessors to rebuild, together with damages for delay and abatement of the monthly rental during the period of repairs. There were also prayers for attorneys fees and for general relief.

The lessors admitted the terms of the lease, but alleged in their answer that the building had been totally destroyed by fire. They alleged that there was no duty on their part to rebuild under the terms and provisions of the lease, but the lessors took the position that the lessee continued to be liable for payment of rent and fulfillment of the lease terms unless or until the lease was cancelled or terminated.

Both parties moved for summary judgment. The Chancellor concluded that there were disputed factual issues, but instead of overruling both motions as required under Rule 56 of the Tennessee Rules of Civil Procedure, he ordered a reference to the Clerk and Master for determination of certain issues of fact. This was done without objection by either party insofar as the record discloses. On the reference, the Clerk and Master was directed to determine the nature and extent of the damage to the building, cost of repairs, etc., and the parties took extensive proof on these issues before the Master. The Master thereupon returned a report to the Chancellor, finding in effect that the building was totally destroyed by fire, and that the cost to rebuild would be essentially the same whether the existing structural walls were used or demolished in the rebuilding. Exceptions to this report were filed, and these were overruled by the Chancellor. The Chancellor then filed a memorandum opinion, to the effect that there was no duty on the part of the lessors, under the terms of the lease in question, to rebuild the building when there was a total loss, as distinguished from a partial loss. He accordingly denied relief to the lessee, but further found that it was the intention of the parties that the lease would terminate upon total destruction of the building. He excused the lessee from paying rent from and after the date of the filing of this suit, which was some two months after the date of the fire, and directed a refund of all rentals paid subsequent to the filing date.

The Court of Appeals affirmed the holding of the Chancellor in part, finding that the covenant of the lessors in this case to make major repairs and to insure against any damage to the building by fire was only a limited or special covenant, and not a general one, and that there was no duty to rebuild in the event of total destruction. The Court of Appeals held, however, that since the lessee had not availed itself of its statutory right to terminate the lease pursuant to T.C.A. §§ 64-702, 703, the lease was still in force and effect, and the lessee was obligated to continue making the prescribed rental payments.

The lessee filed a petition for cer-tiorari with this Court, which was granted. We have examined the authorities cited by the Court of Appeals, and we are in agreement with the general principles of law stated therein, to the effect that a special or limited covenant to make repairs on the part of the lessor does not obligate the lessor to rebuild the structure in the event of a total loss or destruction. A general covenant to repair usually is deemed to include cases of total as well as partial destruction. See Annot., 38 A.L.R.2d 682, 703 et seq. (1954).

In the present ease, however, we are not satisfied with the conclusions of either of the courts below to the effect that the covenant in this case was special or limited. It was an unconditional covenant to make all major repairs to the premises during the term of the lease coupled with an agreement on the part of the lessors to procure fire insurance upon the building “for any damage thereto by fire.”

We need not consider in this case whether the lessors would be obligated to rebuild the structure had it been totally destroyed by flood, collision or some cause other than fire. The covenant to make “all major repairs that may become necessary to the building structure during the term of the lease” is, to say the least, not expressed in narrow or restricted language. Most of the cases in which covenants have been deemed to be special or limited have been cases where the lessor agreed to repair or maintain the roof, outside walls, or some other specific portion of the building. In the present ease, however, there is not only the broad agreement to make all major repairs that may become necessary during the term of the lease, but there is a special and specific undertaking on the part of the lessors to carry fire insurance upon the building “for any damage” to the building which might result from fire.

Since there was a fire loss in this case, we are convinced that the provisions of this lease are such that the loss must be borne by the lessors. The Court of Appeals undertook to distinguish “damage” by fire from “destruction” by fire, citing in support of its opinion a case involving competition among distributors of milk, which is not determinative, in our opinion, of the issues involved in this case. We conceive that such a distinction, in the context of the present case, would be highly technical and contrary to the ordinary usage and meaning of words.

As previously mentioned, the lease involved in this case is quite brief and certainly does not present a model of draftsmanship for commercial leasing. Nevertheless, the words contained therein must be given their ordinary and customary usage, and not a strained or unnatural interpretation. We recognize that ordinarily, as between the landlord and tenant, the lessor has no obligation to make repairs upon leased premises. His obligation to do so, in general, rests upon contract. Had the lessors in the present case agreed to maintain only the roof, outside walls, or other limited portions of the building, or had the fire insurance clause given the lessor an option not to rebuild, we might well reach a different conclusion. We cannot, however, read the language of this lease as containing anything other than a general covenant on the part of the lessors, insofar as fire losses were concerned, and that is the kind of loss which was experienced.

In the case of Zuccarello v. Clifton, 12 Tenn.App. 286 (1930), a tenant was held to have an obligation to rebuild a leased building which was destroyed by fire during the term of the lease. In that case the lessee had agreed to erect the structure and to “keep the building in good and sufficient repair for the said term . . . ” The tenant had further agreed that it would “leave the said brick building in good and sufficient repair at the expiration of his said lease.”

The Court of Appeals held that these covenants were sufficient to cast upon the tenant the duty of rebuilding and replacing the structure.

After the decision in that case, the General Assembly provided that when any building which is leased or occupied is destroyed or so injured by the elements or any other cause as to be untenantable and unfit for occupancy, and where there is no express written agreement to the contrary, the lessee or occupant is entitled to surrender possession of the premises, if the destruction or injury occurred without his fault. The tenant is relieved from the payment of rent from and after the date of the surrender, and a covenant or promise to leave or restore the premises in good repair does not operate to cast upon the tenant the duty of paying for the building damage, unless this was caused by his neglect or fault, or unless he has expressly stipulated in writing to be so bound. T.C.A. § 64-702, 703.

Upon the record before us, therefore, there is no question but that upon the total destruction of the building by fire, the lessee had a statutory right to surrender the premises and be relieved of any further rental payments. This, however, is an optional remedy of a tenant, and is not compulsory. The existence of such a statutory right on the part of a tenant does not, in and of itself, relieve the lessor of a covenant to rebuild or replace.

We recognize, of course, that the lessors in this case could have insured the building against fire damage wholly apart from the lease provisions. They had an insurable interest in the property, which they could have protected by appropriate coverage. In this case, however, they expressly covenanted with the tenant that they would carry fire insurance for any damage to the building during the term of the lease, and simultaneously agreed to make all major repairs. We conclude that under these circumstances the legal effect of these covenants was to make the lessors responsible for proper restoration of the premises after a fire loss, there being no other provisions in the lease to the contrary.

The parties clearly contemplated that the lessee would carry liability insurance during the term of the lease, and it seems irrefutable that if there had been a liability claim made against the lessors, they would have been entitled to indemnification by the lessee, had the lessee failed to procure adequate liability insurance coverage. By the same token, the parties contemplated that the lessors would carry fire insurance “for any damage” to the building during the term of the lease, and if the lessors failed to insure fully against such damage they must bear the consequences.

As previously stated, the parties have taken extensive proof in this case upon the issue of whether the building was totally or partially destroyed in the fire, the lessors having recognized that they would be responsible for restoration had the damage been only partial. For the reasons stated above, we do not regard this as the determinative issue, because we regard the terms of the lease as imposing a general obligation upon the lessors to assume responsibility for fire loss during the term of the lease. While the tenant had the statutory right to terminate upon such fire loss, it was not obligated to do so, and we do not believe it was the intention of the parties that there should be an automatic cancellation or termination, in view of the obligation of the lessors to make all major repairs and to do so within a reasonable period of time following a loss.

In our opinion, the loss in this case must fall upon the lessors, and we hold that they have breached the covenants of the lease by failing to restore the promises. We will not here attempt to determine appropriate relief in the case. The matter has now been more than two years in litigation. In view of the short term remaining unexpired on the lease, it may now be deemed inequitable or inappropriate to require the lessors to restore the building, and we leave to the Chancellor complete discretion in fashioning appropriate relief. See generally Annot., 38 A.L.R.2d 682, 717 (1954).

In concluding this opinion we feel it proper to comment upon the procedure which was followed in the trial of this case. Summary judgment proceedings in this state were authorized for the first time by Rule 56 of the Tennessee Rules of Civil Procedure. This new procedure was designed to fill a vacancy or void which had existed in prior practice and to provide a procedural step which had heretofore not existed. Under previous practice, in both the circuit and chancery courts, there had been no satisfactory intermediate step between the demurrer, which dealt only with the contents of pleadings, and a full-scale trial of a case upon the merits. The summary judgment procedure was designed to provide a quick, inexpensive means of concluding cases, in whole or in part, upon issues as to which there is no dispute regarding the material facts. Where there does exist a dispute as to facts which are deemed material by the trial court, however, or where there is uncertainty as to whether there may be such a dispute, the duty of the trial court is clear. He is to overrule any motion for summary judgment in such cases, because summary judgment proceedings are not in any sense to be viewed as a substitute for a trial of disputed factual issues. In the present case, the Chancellor concluded immediately that there was a dispute by these parties as to whether there was or was not a total destruction of the building, an issue which he deemed material. Instead of overruling both parties’ motions for summary judgment, however, he ordered a reference upon the disputed issue, and only after a lengthy reference had been completed, and exceptions thereto had been overruled, did he then purport to sustain the motion for summary judgment filed by the respondents. This is, to say the least, a very irregular use of Rule 56 proceedings. Unless the Rule is utilized only where clearly applicable and plainly within its designed purpose, its use may have the effect of preventing full and clear development of issues which could be accomplished by normal trial proceedings.

The judgments of the courts below are reversed, and this cause is remanded to the Chancery Court for determination of the consequences of the breach of covenant by the respondents and entry of an appropriate judgment. In fashioning relief, the Chancellor may, of course, consider any proof already on file together with such additional evidence as he deems appropriate. All costs in the cause to date are taxed against the respondents.

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

      . Thus in the case of Miller v. Miller, 217 Miss. 650, 64 So.2d 739 (1953), relied upon by the Court of Appeals, the covenant was to maintain “the roof, foundation and outside surfaces (except painting).” And in the case of Arbenz v. Exley, 52 W.Va. 476, 44 S.E. 149, 152 (1903), also cited below, the Court expressly stated, “This lease contained no general covenant to rebuild, but only the limited one to keep the roof in order.”

      . Application of Eisenstein, et al., 268 App. Div. 320, 51 N.Y.S.2d 811 (1944).

      . See Annot. 38 A.L.R.2d 682, 713 (1954) for discussion of cases from other jurisdictions as to the effect of an insurance covenant upon the duty to repair or rebuild.

      . It is not clear whether this occurred in the present case or not. After the reference and filing of the Chancellor’s initial opinion sustaining the motion of respondents, both parties attempted to file further affidavits showing their negotiations and discussions prior to signing the lease. Whether these would have been admissible or probative on trial, we need not here attempt to decide. Certainly they were ineffectual after a summary judgment had already been decreed.


source: Caselaw Access Project

author: COOPER, Justice. BROCK, Justice HENRY, Justice COOPER, Justice.

license: Public Domain

text:
    Vestal EVERETT, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Sept. 15, 1975.

      Finnell, Thompson, Scott & Logan, Cleveland, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., Tom Jennings, Asst. Atty. Gen., Nashville, for respondent.
   OPINION

COOPER, Justice.

Vestal Everett was convicted of first degree murder for the killing of Steve Howard and was sentenced to life imprisonment in the penitentiary. The conviction was affirmed by the Court of Criminal Appeals, with one member dissenting. This court granted certiorari for the limited purpose of considering whether the evidence was sufficient to warrant a conviction of murder in the first degree, the point in issue being whether the evidence supports the jury’s finding that the killing of Steve Howard was a deliberate, premeditated act.

To convict a defendant of murder in the first degree, there must be an eviden-tiary basis for a conclusion by the jury that the killing was willful, deliberate, malicious and premeditated. Bass v. State, 191 Tenn. 259, 231 S.W.2d 707 (1950). All homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption. And, if a weapon is handled in a manner so as to make the killing a natural and probable result of such conduct, malice will be presumed from the use of the weapon. Gann v. State, 214 Tenn. 711, 383 S.W.2d 32 (1964); Morelock v. State, 3 Tenn.Cr.App. 292, 460 S.W.2d 861 (1970). Deliberation and premeditation involve a prior intention or design on the part of the defendant to kill, however short the interval between the plan and its execution. It is sufficient if only a moment of time elapses between the plan and its execution as long as the jury can conclude from the evidence that there was some appreciable interval, however small. And, whether premeditation is present in a given case is a question of fact to be determined by the jury from all circumstances of the case. Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863 (1966).

In reviewing the evidence on which the jury predicated its finding of murder in the first degree to see if it supports a finding that the killing was willful, deliberate, malicious, and premeditated, this court must consider the evidence in the light of the rule that the credibility of the witnesses and the conflicts in their testimony have been settled by the verdict of the jury which has been approved by the trial court, and that any conflicts in the testimony have been resolved in favor of the jury’s verdict. Osborne v. State, 512 S.W.2d 612 (Tenn.Cr.App.1974). See also Shiflet v. State, 216 Tenn. 365, 367-68, 392 S.W.2d 676, 678 (1965), wherein it is stated:

“It is also an established rule that verdict of the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves any conflict in the testimony in favor of the insistence of the State. A verdict of a jury also removes the presumption of the innocence of the defendant; and, here, creates a presumption of his guilt and places the burden on him of showing the evidence preponderates against the verdict and in favor of his innocence. White v. State, supra [210 Tenn. 78, 356 S.W.2d 411 (1962)]; McBee v. State, supra [213 Tenn. 15, 372 S.W.2d 173 (1963)]; Holt v. State, 210 Tenn. 188, 357 S.W.2d 57 (1962).”

When so considered, we find that Steve Howard died on the parking lot of Brown’s Grocery on Sunday, December 31, 1972, from a gunshot wound inflicted by the defendant, Vestal Everett.

The record further shows that beginning in August, 1972, after the defendant and the Howards had lived amiably as neighbors for many years, ill-feeling developed between the defendant and the Howard family, including the deceased Steve Howard. The prime source of trouble between the families was an implicit accusation by a son-in-law of the Howards (Donald Vaughn) that the defendant had found and kept a purse belonging to Barbara Howard Vaughn. Subsequently, Donald Vaughn threw an old purse into the driveway of the defendant with the comment that he could have it back. Angry words passed between Vaughn and the defendant. Steve Howard was present but took no part in the quarrel until the defendant called Steve’s wife “a little Indian whore.” Steve reacted to the statement and told defendant “he would whip him if he came down there to the road.” Nothing further happened at that time. Later Mr. Howard, the father, discovered that his fence corner had been moved in defendant’s favor. When he mentioned this to the defendant, the defendant reacted violently and cursed him. The last “flare-up” between the defendant and the Howards occurred on December 23, 1971, eight days before Steve Howard was killed. The deceased, two of his brothers, his father and brother-in-law Vaughn went rabbit hunting on land the elder Howard had rented adjoining the defendant’s farm. When the dogs jumped a rabbit, it ran onto the defendant’s land and Vaughn and one of the Howard boys followed. The defendant cursed the Howards, and told them to get off his land or he would kill them. As the Howards walked toward their own property, the rabbit jumped again and Mike Howard killed it and picked it up, notwithstanding the defendant’s order to “leave the rabbit alone.” This action by Mike Howard caused the defendant to repeat his threat to “kill every one of (the Howards) present,” if they did not leave defendant’s land immediately. The deceased was in the crowd of hunters but did not go onto defendant’s land. Shortly afterwards, Steve and Mike Howard were sitting on the hood of Steve’s automobile waiting for the rest of the hunting party when the defendant drove onto the road. The defendant and his helper claimed the two Howard boys shouted at the defendant and that Mike swung his fist and a stick at him, but Mike denied this.

On Sunday, December 31, 1972, the defendant was leaving Brown’s grocery store when Steve Howard and his brother-in-law, Richard Harris, started across the parking apron toward the store entrance. The defendant said something to Steve Howard, which caused Steve to turn and walk towards defendant’s truck. Steve Howard stopped near the front fender of the truck and with his fists closed asked defendant, “What do you want to do about it?” The defendant, in turn, asked Steve Howard, “What do you want to do about it?” The defendant put his groceries into the truck and, without saying anything further and without any aggressive action on the part of Steve Howard, came up swinging a “claw” hammer at the deceased. The deceased caught defendant’s wrists to prevent a blow being struck. The defendant jerked his right arm loose and put his hand in his front pocket. The deceased turned loose of the defendant’s left arm, stepped back one or two paces and told the defendant, “You had better not put a knife on me.” The defendant replied, “It is not a knife,” and pulled a gun and shot the deceased. The gun used by defendant was one that he usually carried in his truck to shoot stray dogs when they chased his farm animals.

The majority of the Court of Criminal Appeals concluded that “upon this record the jury could find and obviously did, that for some time, beginning at least with the lost pocketbook incident, a mutual and deep-seated feeling of hatred and malevolence had developed and grown in intensity between the defendant and the deceased and the members of the latter’s family; and that on the fatal day the defendant, having his pistol either in his pocket or on the seat of his truck, deliberately and designedly and premeditatedly baited the deceased by some offensive remark calculated to infuriate him and provoke him to belligerence; that the deceased’s reaction and advance with clinched fists was both predictable and predicted by the defendant; and that the defendant planned and instigated this difficulty with the intention and purpose of creating an excuse to kill the deceased and did so while he was backing away from his hammer attack.” We agree that this is a reasonable conclusion from the evidence and that the defendant has failed to carry his burden of demonstrating that the evidence preponderates against the jury verdict of murder in the first degree.

Judgment affirmed.

FONES, C. J., and HARBISON, J., concur.

BROCK and HENRY, JJ., dissent.

BROCK, Justice

(dissenting).

After having studied the record, I am convinced that the evidence does not support a finding of premeditation which, of course, is a necessary ingredient of murder in the first degree. T.C.A. § 39-2402.

Ever since 1858 murder in Tennessee has been divided into two separate offenses. See Code of 1858, §§ 4598 — 4599. It is of the utmost importance that the courts delineate the two offenses, because the difference in punishment is the difference between life and death, literally. T.C.A. §§ 39-2406, 39-2408. Murder in the first degree includes the lesser offense of murder in the second degree. Grove v. State, 211 Tenn. 414, 419, 365 S.W.2d 292, 294 (1963). Willfulness and malice are required elements of both second degree murder and first degree murder; it is the added element of premeditation-deliberation which distinguishes first degree murder from second degree murder. Unfortunately, this distinction between the two offenses has not always been made clear by this Court.

In the case at bar the majority opinion states:

“Deliberation and premeditation involve a prior intention or design on the part of the defendant to kill, however short the interval between the plan and its execution. It is sufficient if only a moment of time elapses between the plan and its execution as long as the jury can conclude from the evidence that there was some appreciable interval, however small.”

Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863, is correctly cited to support the quoted statement. But, in my view, the Court in Clarke did not accurately define “premeditation.” More than a split-second intention to kill is required to constitute premeditation.

From the early days of statehood this Court has conceived that the premeditation-deliberation element of first degree murder requires that the act be performed with a cool purpose. Drye v. State, 181 Tenn. 637, 184 S.W.2d 10 (1944); Winton v. State, 151 Tenn. 177, 268 S.W. 633 (1924); Turner v. State, 119 Tenn. 663, 108 S.W. 1139 (1907); Poole v. State, 61 Tenn. 288 (1872); Dale v. State, 18 Tenn. 551 (1837). Thus, in Win-ton, our predecessors held that in order to constitute murder in the first degree “the cool purpose must be formed and the deliberate intention conceived in the mind (of the accused), in the absence of passion, to take the life of the person slain.” (Emphasis added.) If the purpose to kill is first formed during the heat of passion, the accused, to be guilty of first degree murder, must have committed the act after the passion has subsided. “Passion,” as here used, means any of the human emotions known as anger, rage, sudden resentment or terror which renders the mind incapable of cool reflection. Drye v. State, supra.

It has been held that “premeditation” means that the killing must have been meditated, planned in the mind, beforehand, and that the design to kill must have preceded the killing by an appreciable length of time — time enough for cool deliberation. Of course, to deliberate and to meditate on an act means to think it over and to weigh the consequences, and when there is no appreciable time therefor, there can be no deliberation and no premeditation. Premeditation by its very nature is not instantaneous, but requires some time interval. Jenkins v. State, 230 A.2d 262 (Del.Supr.); Leyva v. State, 2 Md.App. 120, 233 A.2d 498; State v. Rodriguez, 23 N.M. 156, 167 P. 426; State v. Arata, 56 Wash. 185, 105 P. 227; Heglin v. State, 236 Ind. 350, 140 N.E.2d 98.

If the killing is done in passion, that is, in anger, the offense is not murder in the first degree; but, if in passion adequately provoked and acted upon before the passion has cooled, it is voluntary manslaughter; and if in passion in fact, although the provocation is insufficient to reduce the offense to manslaughter, it is murder in the second degree only. Drye v. State, 181 Tenn. 637, 184 S.W.2d 10 (1944). Once the fact of killing has been established, the law presumes it to be murder in the second degree. Witt v. State, 46 Tenn. 5 (1868).

Applying the foregoing principles to the evidence in the ease at bar, it appears to me that the killing occurred upon a sudden heat of excitement and anger which, true enough, did not amount to adequate provocation sufficient to reduce the killing to voluntary manslaughter, but, does negate a finding of cool deliberation which is essential to a finding of first degree murder. “Although the proof shows that a defendant did intend to kill, still, if the design was formed upon a sudden impulse of passion, without adequate provocation, and disconnected with any previously formed design, and if executed willfully and maliciously, it is murder in the second degree only.” Gray v. State, 63 Tenn. 331 (1874). The petitioner did not seek out the deceased; he merely went to Brown’s Grocery store to purchase some groceries and was on his way back to his pickup truck when he chanced to meet the deceased, Steve Howard. It was only after the deceased, Howard, challenged the petitioner with the words “What do you want to do about it” and followed petitioner to his pickup truck with his (Howard’s) hands clenched into fists in a menacing manner that the petitioner placed his groceries in the truck and picked up a claw hammer and took a swing at Howard. At this point in the sequence of events, I am convinced that the petitioner was enraged and pulled his pistol and shot Howard at a time when his mind was under the influence of excitement and passion to such an extent that he was not capable of reflecting and acting with that degree of coolness and deliberation of purpose which our statute requires to constitute murder in the first degree.

I would follow the procedure used in Forsha v. State, 183 Tenn. 604, 194 S.W.2d 463 (1946) and hold that the evidence preponderates in favor of the defendant’s innocence of murder in the first degree because of failure to prove deliberation and premeditation, but warrants a conviction of murder in the second degree and, if the State agrees, reduce the sentence to the minimum prescribed for second degree murder, or, if the State does not agree, reverse and remand for a new trial.

HENRY, Justice

(dissenting).

I respectfully dissent, and concur in the dissenting opinion of Mr. Justice Brock.

In my view the evidence is insufficient to warrant a finding of first degree murder. I find no proof of premeditation. The encounter between the petitioner and the deceased came about as a coincidence; the deceased, having met petitioner by chance, followed him to his pickup truck with fists clenched and acting in a menacing manner; as a result of the prior differences between the parties and under the stress, excitement and pressure of a passing moment, the fatal shot was fired.

As pointed out by Justice Brock, once the fact of killing has been established, the law presumes it to be murder in the second degree, Witt v. State, 46 Tenn. 5 (1868); Covey v. State, 504 S.W.2d 387 (Tenn.Cr.App.1973), and the burden is on the State to prove premeditation or some other ingredient to establish that the killing constituted murder in the first degree. Hornsby v. State, 479 S.W.2d 653, (Tenn.Cr.App.1971); Shanklin v. State, 491 S.W.2d 97 (Tenn.Cr.App.1972).

That burden has not been met. This is a classic ease of second degree murder.

I deplore the tendency of our courts to apply this praiseworthy presumption in order to raise the degree of murder, but to ignore it when its application would operate to reduce the degree.

The record in this case reveals that the jury, after deliberating for a time, returned into open court and reported that it had not reached a verdict. In response to a question by the trial judge the foreman reported “I don’t think we have had time, sir.”

Thereupon, and without further ado the trial judge gave the charge as set out verbatim in Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487 (1955).

After the jury had been given this “dynamite” charge it retired and, in due course, returned with a verdict of murder in the first degree.

We examined the Allen-Simmons charge in Kersey v. State, 525 S.W.2d 139 (Tenn.1975), released June 16, 1975. In reversing the conviction in Kersey, we said:

The right of trial by jury may not be impaired or encumbered with conditions which, in their practical operation, may embarrass or violate the free and full enjoyment of the right. Neely v. State, 63 Tenn. 174 (1874).
In our view the Allen charge and the Allen-Simmons charge operate to embarrass, impair and violate the constitutional right of trial by jury. Any undue intrusion by the trial judge into this exclusive province of the jury, is an error of the first magnitude. We recognize that the trial judge has a legitimate concern in the administration of justice and that he labors under a duty to lend guidance to the jury through instructions as to the governing principles of the law. However, when the effort to secure a verdict reaches the point that a single juror may be coerced into surrendering views conscientiously entertained, the jury’s province is invaded and the requirement of unanimity is diluted. We view these charges as being tantamount to a judicially mandated majority verdict which is impermissible under Tennessee law.
Moreover, there is an inherent inconsistency in these charges in that the dissenters are urged to reconsider their verdict, and simultaneously are reminded to make their decisions based upon their own convictions which they are cautioned not to sacrifice. They ask the dissenters to consider shifting their opinions, because the majority is of a different persuasion. We find no merit to any suggestion that might necessarily makes right.

In deference to the trial judge it should be pointed out that this case was tried before we released our opinion in Kersey; however, we reversed Kersey’s conviction because of the “dynamite” charge and without prior admonition to the Bench and Bar.

It is true that no assignment of error challenged this charge; however, this Court may note plain error. In Manning v. State, 500 S.W.2d 913, 914 (Tenn.1973), this Court held that appellate courts in the public interest, may, sua sponte note errors to which no exception has been taken if errors are obvious or if they seriously affect fairness, integrity or public reputation of judicial proceedings.

This is such an error.

I would reverse.

OPINION ON PETITION FOR REHEARING

COOPER, Justice.

Vestal Everett has filed a petition to rehear insisting that he was deprived of effective assistance of counsel in the trial court and that he did not receive a fair trial. He also insists that the evidence preponderates against the verdict of first degree murder. These assignments of error are rearguments of basic issues considered by this court in the several opinions filed, which is not the office of a petition to rehear. See Overstreet v. Norman, 44 Tenn.App. 343, 314 S.W.2d 47 (1958). However, we have again considered the issues in the light of the argument of counsel and have concluded that the petition to rehear is without merit.

The petition to rehear is overruled.

FONES, C. J., and HARBXSON, J., concur.

BROCK and HENRY, JJ., dissent.


author: SANDERS, Judge.

text:
    Bertie L. HARDIN v. COMBINED INSURANCE COMPANY OF AMERICA.
    Court of Appeals of Tennessee, Eastern Section.
    March 26, 1975.
    Certiorari Denied by Supreme Court Aug. 25, 1975.

      S. Morris Hadden, with Hunter, Smith, Davis, Norris & Treadway, Kingsport, for appellant.
    David F. Tucker, Jr., with Tucker & Cowan, Elizabethton, for appellee.
   OPINION

SANDERS, Judge.

The Defendant has appealed from a decree of the Chancery Court for the proceeds of a life insurance policy which Defendant refused to pay because of alleged misrepresentations as to medical history.

On February 2, 1970, the Defendant, Combined Insurance Company of America, issued its policy of life insurance on the life of Robert L. Hardin for the sum of $2,400.00. It was a non-medical policy which the agent had authority to issue without a medical examination upon collecting a six-month premium. The policy remained in force until the insured’s death on August 19, 1973.

After the death of the insured the Plaintiff, Bertie L. Hardin, as beneficiary, filed a claim for the face amount of the policy, but the Defendant declined to pay on the theory that at the time the policy was issued the insured had made material misrepresentations concerning his prior health and medical care and that such misrepresentations influenced the Defendant’s judgment in issuing the policy and materially increased the risk of loss.

The Plaintiff filed suit in the Chancery Court for Carter County and the case was tried by the Chancellor on oral testimony.

The Chancellor found the issues in favor of the Plaintiff and the Defendant has appealed and assigned error.

The Defendant’s assignment of error is: “The trial court erred in finding material evidence to support the contentions of plaintiff and in awarding benefits under the life insurance policy in view of the material misrepresentations made by the insured in his Application for Insurance when such application was attached to and made a material part of the policy, and when the medical history and treatment misrepresented, as a matter of law, increased the insurer’s risk of loss.”

The proof shows that on the day the policy was issued the Defendant’s agent, Mr. Chester R. Gillis, went to the home of the Plaintiff and the insured for the purpose of trying to sell both of them a life insurance policy. After some discussion among the agent, the insured and his wife, it was decided that the Plaintiff would take out a policy of insurance on the life of the insured and that she would pay the premium and own the policy.

Before the policy could be issued it was necessary that certain information concerning the insured’s health and medical history be furnished and recorded on the policy. In the interview the Plaintiff and/or the insured gave the agent the information concerning the insured’s medical history and the agent recorded certain information on the application.

After the application had been filled out it was signed by the Plaintiff. She issued her check to the agent for $70.00 which was for the first six months’ premium.

The agent issued to her a policy of insurance on the life of the deceased, with a copy of the application attached.

The provisions of the application for insurance, as pertinent here, are as follows:

"I hereby apply for the above-described policy on the basis of the statement regarding the Insured's health given in Part I of this Application and I hereby further apply for the benefits provided under Section A of the policy on the basis of the information regarding the Insured's health given in Part II of this Application."
"PART I — POLICY QUALIFICATION STATEMENT— READ CAREFULLY.
To the best of my knowledge the Insured has not had any advice or treatment for stroke, heart attack or other heart condition, cancer, or any malignant growth within the last five years.
"PART II — SECTION A QUALIFICATION QUESTIONS.
2. Within the last 5 years, has the Insured consulted a physician for a checkup, physical defect, or for any nervous or mental disorder, injury, or sickness? .Yes
3. Does the Insured now have any physical defect, nervous or mental disorder, injury or sickness? .Yes Explain below a 'YES' answer to Questions 2 or 3; ..."

The explanation to Question 2 is shown to be that the insured had a physical examination in December, 1971, but he had no surgery nor was he still under medical treatment.

The only explanation as to the answer of Question 3 was that the insured was a diabetic.

At the bottom of the application, immediately above the signature of the applicant or owner, it says:

"IMPORTANT READ CAREFULLY — I represent and affirm the following:
"A. I have read the statement in Part I of this Application and it is true to the best of my knowledge.
"B. The information I have given as recorded on this Application is true and complete to the best of my knowledge."

Just below this it was executed by the Plaintiff signing the name of the insured.

The application shows that within the past five years the insured had not had any advice or treatment for stroke, heart attack or other heart condition nor did he have any physical defects except being a diabetic. He had a physical examination in December, 1971, and was not under any medical treatment.

The proof shows this information to be inaccurate and incomplete. The proof shows the insured had been retired from his employment with Beaunit Fibers due to total permanent disability beginning December 29, 1970.

The medical report shows this disability to be due to diabetes mellitus, arterioscle-rotic heart disease and glomerulonephritis.

His record at the Carter County Memorial Hospital for the five-year period preceding the application for insurance was as follows:

Admitted Dec. 16, 1967 — Discharged Dec. 23, 1967 Final clinical diagnosis: (1) Bilateral Bronchopneumonia
(2) Diabetes mellitus
(3) Hypertensive cardiovascular disease, compensated
(4) Nephritis
Admitted Oct. 20, 1968 — Discharged Oct. 25, 1968 Final clinical diagnosis:
(1) Alcoholic intoxication
(2) Diabetes mellitus
(3) Hypertension
(4) Hypertensive cardiovascular heart disease
(5) Glomerulonephritis
(6) Hiatus hernia
Admitted Feb. 11, 1969 — Discharged Feb. 15, 1969 Final clinical diagnosis:
(1) Diabetes mellitus, controlled
(2) Hypertension
(3) Hypertensive cardiovascular disease and ar-teriosclerotic heart disease, compensated.
(4) Hematuria due to glomerulonephritis and/or pyelonephritis
Admitted Sept. 29, 1969 — Discharged Oct. 1, 1969 Final clinical diagnosis:
(1) Diabetes mellitus
(2) Arteriosclerotic heart disease and hypertensive cardiovascular disease, compensated
(3) Glomerulonephritis
(4) Lumbosacral myositis and degenerative osteo-arthrosis of L-4, L-5
Admitted April 12, 1970 — Discharged April 15, 1970 Final clinical diagnosis:
(1) Meniere's syndrome
(2) Diabetes mellitus
(3) Hypertension
(4) Hypertensive cardiovascular disease, arterio-sclerotic heart disease, compensated
Admitted Jan. 12, 1971 — Discharged Jan. 14, 1971 Final clinical diagnosis:
(1) Active peptic ulcer disease, duodenum
(2) Possible lesser curvature gastric ulcer
(3) Diabetes mellitus
(4) Hypertension
(5) Hypertensive cardiovascular disease and arterio-sclerotic heart disease, compensated
(6) Latent glomerulonephritis
(7) Lumbosacral osteoarthrosis with myositis
Admitted Sept. 16, 1971 — Discharged Sept. 18, 1971 Final clinical diagnosis:
(1) Diabetes mellitus
(2) Hypertension and hypertensive cardiovascular disease, compensated
(3) Latent glomerulonephritis
(4) Lumbo sacral degenerative osteoarthrosis
(5) Positive test rheumatoid arthritis
(6) History of peptic ulcer disease
(7) Obesity ■
Admitted March 3, 1973 — Discharged March 9, 1973 Final clinical diagnosis:
(1) Bronchopneumonia
(2) Possible mild congestive heart failure
(3) Hypertension & hypertensive cardiovascular disease and arteriosclerotic heart disease with angina pectoris syndrome
(4) Latent glomerulonephritis
(5) History of peptic ulcer disease
(7) Obesity

The death certificate shows the cause of death as cerebral vascular accident due to or as a consequence of hypertension and arteriosclerosis, along with diabetes melli-tus, rheumatoid arthritis, glomerulonephri-tis, arteriosclerotic heart disease, hypertensive cardiovascular disease and broncho-pneumonia.

There is a sharp conflict in the testimony of the Plaintiff and that of Mr. Gillis as to what information was furnished by the Plaintiff and the insured at the time the application was filled out. It is the insistence of Mr. Gillis that he recorded on the application all of the medical history that was furnished to him. The Plaintiff, on the other hand, insists that she and her husband made a thorough disclosure of the insured’s physical condition and disability. It is the insistence of the Plaintiff that the agent deliberately omitted the information from the application for the purpose of defrauding the company and collecting a commission.

If we accept the theory of the Defendant we will be required to deny recovery since the medical history of the insured would unquestionably increase the risk of loss as set out in T.C.A. § 56-1103. Also, as pointed out by the court in the case of Sloop v. Mutual of Omaha Insurance Company, 55 Tenn.App. 656, 404 S.W.2d 265, 268:

“ ‘It is the duty of the insured when he signs an application or accepts the policy, if he knows or has any reason or ground to believe that he has any disease or is in unsound health, * * * [to] make a fair disclosure of the facts to the insurer. Knights of Pythias v. Rosenfield [Rosenfeld], 92 Tenn. 508, 22 S.W. [204] 504; Harris v. [Security Mut. Life] Insurance Co., 130 Tenn. 325, 170 S.W. 474 [L.R.A. 1915C, 153].’ Norvill v. Mutual Benefit Health & Accident Ass’n, 14 Tenn.App. 396; Little v. Washington National Ins. Co., 34 Tenn.App. 593, 241 S.W.2d 838.”

On the contrary, if we accept the theory of the Plaintiff we are still required to deny recovery under the holdings of the Supreme Court in the case of DeFord v. National Life & Accident Ins. Co., 182 Tenn. 255, 185 S.W.2d 617 and Beasley v. Metropolitan Life Ins. Co., 190 Tenn. 227, 229 S.W.2d 146.

The Plaintiff testified, in part, as follows:

“Q. Mrs. Harden, — what conditions did Mr. Hardin relate to Mr. Gillis, that he had?

“A. Well, he told him that he had high blood pressure and he had a heart condition and he had diabetes and he told him, he said I’m too near a dead man to take out insurance.

“Q. What was Mr. Gillis’ reply to this?

“MR. HADDEN: We have continuing objections to the statements.

“THE COURT: She can testify about the agent. That’s admissible.

“A. I just don’t remember what he did say to him b-ut anyhow he told him that he could take out the policy and it would be due him.

“THE COURT: Now, the agent of the Combined Insurance Company told your husband in your presence that he was the agent and that he could take out an insurance policy and it would be good?

“A. Yes sir.

“THE COURT: Very well. Go ahead.

“Q. After your husband told him all of these conditions, did you know at that time what the agent put on the application?

“A. Well, — I knowed the question he answered, but I didn’t know whether he put yes or no. I didn’t know what he put on it, no.”

. . ⅛ ******

“Q. And he retired in what year? 70 or 71?

“A. 1970, the last day.

“Q. And he retired for heart trouble, high blood pressure? Is that correct?

“A. And diabetes.

“Q. And diabetes?

“A. And I don’t know what else.

“Q. And from the time he retired, of course, up until the time he passed away, he was not able to engage in work of any type was he?

“A. Nothing only help me around the house up there, around the shop.

“Q. Alright. So he had no work once he retired on disability at the plant here did he?

“A. No sir.”

* * * * * *

“THE COURT: And that was not kept a secret from the agent that wrote the policy?

“A. No sir it wasn’t kept a secret, no.

“THE COURT: Knew all about it and said I’ll write it anyway?

“A. He did write it anyway.”

* * * * * *

“Q. Okay. The question is, at the time he came he had some policies there and he asked you and your husband questions and he made you ... he wrote certain questions and you answered them? Is that right?

“A. Yes, but he didn’t write them like we answered them.”

* * * * * *

“Q. And the policy that was filled out, certain information was taken from you and you signed it and the agent signed it, he actually delivered you a policy there at that time didn’t he?

“A. And I never did read it until after my husband died. I put it up.”

******

“Q. Well, before you signed your husband’s name and gave the premium, did you read this to the best of my knowledge that your husband had not had advice or treatment for stroke, heart attack, or heart condition or cancer or malignant growth within the last five years? Did you read that?

“A. No I didn’t read cause we had answered the questions.

“Q. You didn’t read that then?

“A. No I didn’t read it cause we had set there and answered the questions.”

******

“Q. And question three says does the insured have any physical defect or nervous or mental disorder, injury or sickness, yes. And when you described you put diabetic. You didn’t put the blood pressure and all the other things were not listed in here were they?

“A. We told him but its not on the policy but he was told.

“Q. Well, you had this policy in your possession bearing your signature and Mr. Gillis’ signature for about eighteen months before your husband died didn’t you?

“A. Yes sir.

“Q. Of course you read the policy and are aware of the fact that the policy was issued and it said in there based on the considerations made in the application? Were you aware of that?

“A. I didn’t read it until after he passed away. I never read the policy. I just put it in the drawer.”

In both the DeFord case, supra, and the Beasley case, supra, the agent knew of the ill health of the insured but put false information on the application, which the insured signed without reading. In each case the court said this barred recovery.

We quote from the record in the DeFord case at page 618:

“The defense relied on was a breach of this condition in that the insured was not in sound health at the time of making application for the insurance and was fully aware of it. This is not disputed. He had been suffering for some time with a heart affection complicated by syphilis, for which he had been receiving clinic treatments. But, in response plaintiff relied on waiver of this condition by the agent who solicited the insurance, and invoked the rule of imputed knowledge by the Company.
“On the trial before a jury plaintiff, wife of the insured, supported by another witness, testified that when solicited to take the insurance DeFord informed the agent of the Company that he had ‘bad blood,’ heart trouble and had been operated on for hernia and that the agent had accompanied Mr. DeFord to the City Hospital where he was accustomed to go to take shots for his blood trouble; but that the agent told DeFord that because of this condition of his health ‘he needed it [the insurance] more than ever’; that with this information the agent filled out the applications containing false representations of sound health, DeFord signed them and the policies were procured from the Company and delivered to him. The agent denied all knowledge that Mr. DeFord was in unsound health, or that he had been so informed.”
“Overruling a motion for a directed verdict for the defendant, the trial Judge submitted to the jury the question whether or not the evidence sustained the contention of the plaintiff that the agent knew of and, therefore, waived the condition of sound health, thus conveying notice to and binding the Company. The jury found for the plaintiff. The trial Judge granted a motion for a new trial, sustained defendant’s motion for a directed verdict theretofore made and dismissed the suit, and plaintiff appealed.”

The Supreme Court affirmed the action of the trial court in directing a verdict foj the reasons more specifically given in th' Beasley case, supra.

We quote extensively from the Beasley case because it is so much in point with the contention of the Plaintiff in the ease at bar.

“In the present case, one Sonnenfield was the agent of the Company, and he had known the Plaintiff and her husband for two or three years prior to the issuance of the policy. He called at Plaintiff’s home from time to time, to collect premiums on another policy of insurance and knew the physical condition of Plaintiff’s husband. He knew that during that time the insured was seriously ill with high blood pressure and kidney trouble; that he had been hospitalized; that this illness had begun in March, 1947, and continued through June 27, 1947, when the application for insurance was taken.”
“The testimony of the Plaintiff is that on the evening of June 27, 1947, she was present in the room with her husband and the agent of the Company when the latter was writing out the answers to the questions on the application; that the agent read out the questions and that her husband answered them truthfully, but that without her knowledge the agent changed the answers to the questions, and that it was not until after the Company had refused to pay the insurance that she knew that the answers to these questions had been changed. She further testified that when the agent had completed the answers, he handed the application to her husband, who signed it without reading it. She further testified that when the policy was delivered, she accepted it but did not read it. Thereafter, from time to time, she had seen the agent and paid premiums to him.
“So, at the end of the Plaintiff’s proof we have this situation: The answers to the application are admittedly false, but according to the Plaintiffs testimony, neither she nor her husband knew that those answers were false; but it cannot be doubted that if the Company had known that the answers were false, it would never have entered into the contract, nor issued the policy, so much is clear from the language of the documents which are the basis of the contract and which we quoted above in this opinion. Plaintiff says her husband signed the false application but did not read it, though there was no fraud, duress, or disability to prevent his reading it, and the Plaintiff says she herself received the policy when it was delivered, but she did not read it and knew nothing about its falsity until the Company refused to pay the claim.
“[1] The following general rules of the law of contracts are amply supported by authorities cited in American Jurisprudence and Corpus Juris Secundum:
“ ‘To permit a party, when sued on a written contract, to admit that he signed it but to deny that it expresses the agreement he made or to allow him to admit that he signed it but did not read it or know its stipulations would absolutely destroy the value of all contracts.’ 12 Am. Jur., 629. ‘In this connection it has been said that one is under a duty to learn the contents of a written contract before he signs it, and that if, without being the victim of fraud, he fails to read the contract or otherwise to learn its contents, he signs the same at his peril, and is es-topped to deny his obligation, will be conclusively presumed to know the contents of the contract, and must suffer the consequences of his own negligence.’ 17 C.J.S., Contracts, § 137, pages 489, 490.
“ ‘It will not do, for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted, contracts would not be worth the paper on which they are written. But such is not the law.’ Upton v. Tribilcock, 91 U.S. 45, 23 L.Ed. 203; Berry v. Planters Bank, 3 Tenn.Ch., 69; Lockhart v. Moore, 25 Tenn.App., 456, 466, 159 S.W.2d 438; Federal Land Bank of Louisville v. Robertson, 20 Tenn.App. 58, 63, 95 S.W.2d 317.
“[2] The foregoing authorities deal with the phase of the law of contracts where one who has negligently signed a contract without reading it, seeks to avoid his obligation, but clearly the converse would be even more unjust and unreasonable, — that the Courts should impose an obligation, on an innocent Defendant who was led to make the contract on the careless misrepresentation of the Plaintiff and the insured. A verdict should have been directed for the Defendant on account of the misrepresentation and consequent mistake. Therefore, although we think the action taken should have been based on the grounds stated, rather than on the rule of DeFord v. National Life & Accident Ins. Co., supra, the result reached is correct and the judgment is, therefore, affirmed.”

Under the holdings in these cases we are compelled to sustain the Defendant’s assignment of error.

The decree of the Chancellor is reversed and the case dismissed.

The cost of this appeal, together with the cost in the Trial Court, is taxed to the Appellee.

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


author: GODDARD, Judge.

text:
    Lloyd LOWE, Appellee, v. PREFERRED TRUCK LEASING, INC., and Leasway Preferred Trucking, Inc., Appellants. Woodrow F. BRANK, Appellee, v. PREFERRED TRUCK LEASING, INC., and Leasway Preferred Trucking, Inc., Appellants.
    Court of Appeals of Tennessee, Eastern Section.
    April 25, 1975.
    Certiorari Denied by Supreme Court Sept. 2, 1975.
    Petition to Rehear Denied by Supreme Court Oct. 14, 1975.

      Jay B. Stringer, Chattanooga, for appellants.
    Denny E. Mobbs and Charles M. Corn, Cleveland, for Lowe.
    Conrad Finnell, Cleveland, for Brank.
   OPINION

GODDARD, Judge.

Defendants Preferred Truck Leasing, Inc. and Leasway Preferred Trucking, Inc. (considered at trial and for purposes of this appeal as one defendant) have appealed from a jury verdict in favor of Plaintiff Lloyd Lowe in the amount of $90,000 and in favor of Plaintiff Woodrow F. Brank in the amount of $1200. Defendant claims that there was no credible evidence introduced at the trial to support the jury verdict that found its negligence to be the proximate cause of a vehicular accident occurring on October 3, 1968, near Bedford, Virginia, which occasioned the Plaintiffs’ injuries.

We summarize the material evidence from the five volumes of trial testimony.

Defendant leased over-the-road tractors to Collins Manufacturing Company, a chair manufacturer in Cleveland, Tennessee. Collins owned their own trailers, but Preferred maintained both the tractors and the trailers. Plaintiffs Brank and Lowe were employed as truck drivers by Collins, which is not a party to this suit. Lowe was a more experienced driver but both had considerable experience handling tractor-trailer units.

A few days before this incident, Brank and Lowe had taken a 1966 White 7400 tractor and a double tandem trailer to Lansing, Michigan. Lowe drove this tractor regularly but Brank had not driven it before this trip. Upon their return to Cleveland around 1:00 p. m., October 2, 1968, they left the tractor at the Collins lot and went to their homes. After being called and informed that they were needed for a trip to Alta Vista, Virginia, they picked up the same tractor (with a different trailer attached) at Preferred’s lot around 8:00 p. m. the same evening.

They drove to Loudon, Tennessee, where they stopped for food. There is conflict as to who drove to Loudon and who drove as they left Loudon, but by the time they had gotten to Lenoir City, the testimony is that Brank was driving and Lowe was asleep in the sleeper section of the cab. In Loudon, Lowe bled the brakes to remove condensation from the air lines, a normal maintenance procedure.

The trip was basically uneventful until they reached the vicinity of Roanoke, Virginia. Brank had never driven this route before this trip and asked directions at a service station outside of Roanoke. He decided to go over Peaks of Otter mountain to Alta Vista because this seemed the most direct route. He drove for a time on the Blue Ridge Parkway, from which trucks are prohibited, and turned off onto Highway 43. Highway 43 traverses Peaks of Otter which is some 4,000 feet high.

Lowe had informed Brank of the route he considered the best to follow through the mountains when they had stopped at Lou-don. Apparently, Brank forgot the directions or decided not to follow them. Lowe’s route would have avoided Peaks of Otter entirely.

The tractor was equipped with a ten-speed transmission. The lower five gears are known as “the low side,” and the higher five as “the high side.” Changing the transmission from the high side to the low side is accomplished by pushing a button on the side of the gear shift lever.

Brank testified that he went up the mountain in second-low gear and crested it at about 10 miles per hour. He did not see any “No Trucks” signs at the top of the hill. He started down the mountain in the same gear in which he went up — second on the low side — and applied the brakes, never shifting out of second gear. When he applied the brakes he heard a “psss” noise and “didn’t have nothing.” The truck did not slow down, but continued to gain speed until it reached between 50 and 80 miles per hour. Brank could not control the truck at that speed down the curving incline. He yelled for Lowe, who awoke and started to crawl out of the sleeper. One of them pulled the emergency brake button but it failed to respond. Finally, Brank “ditched” the truck, turning it over in order to stop it, and the tractor and trailer traveled some distance down the side of the mountain. The accident resulted in injuries to both Plaintiffs, the severity of which are not contested on this appeal.

Grouped in related sections, the remainder of the testimony pertinent to the decision of the case follows:

PRIOR BRAKE TROUBLE

Lowe testified that he had had trouble with the brakes on this tractor many times. The brakes worked badly on the Lansing trip. When they returned from Lansing, he reported, as he had on many prior occasions, that the brakes were not functioning properly. At Loudon he bled water from the brake lines because the brakes were not working well. Either the brakes worked “no better” or “fine” after he bled them— he testified both ways.

Brank testified that the brakes were not working properly on the Lansing trip. (Alternatively, he testified that the brakes worked “fine” on the Lansing trip.) He further testified that Lowe bled the brakes at Loudon and the brakes worked either “fair” or “good” on the trip to Virginia. He did not use the brakes at all from Lou-don until he started down Peaks of Otter.

PHYSICAL FACTS

The top speed of the tractor in the various gears is approximately: first gear — 7.5 mph; second gear — 9.5 mph; third gear— 12 mph; fourth gear — 15.5 mph; fifth gear —19 mph; sixth gear — 24 mph; seventh gear — 30 mph; eighth gear — 38 mph; ninth gear — 48 mph; and tenth gear — 60 mph.

Traveling 50 to 80 miles per hour, with the transmission in second gear (also called second on the low side in the testimony), the engine would be destroyed by centrifugal force.

The engine and drive train were not damaged in the accident.

The tractor brakes were relined 4000-5000 miles after the accident.

On April 16, 1970, the same tractor (with new brakes and a similarly loaded trailer) was driven down Peaks of Otter mountain in first gear at five to six miles per hour without the brakes ever being used.

On October 4, 1968, a Ford cab-over tractor similar to the White cab-over involved in the accident was driven down the mountain (with an empty trailer to the wreck site and half full from there to the bottom of the mountain) at 18-19 mph in second gear.

When the trailer was pulled to Cleveland the day after the wreck, its brakes operated properly.

A buzzer on the air brake system sounds when the air pressure in the system drops below a certain level. This buzzer never sounded during the descent from the top of the mountain.

CONDITION OF THE BRAKES AFTER THE WRECK

The trailer brakes, according to a defense witness who inspected them, could be operated about 100,000-125,000 miles. The tractor brakes were “about half wore out” and would be usable another 75,000-100,000 miles. The trailer was not used any more because of the extensive damage to it. The tractor brakes were relined some 4000-5000 miles after the accident, purportedly because they were “glazed” (a condition caused by overheating the brake linings) and not because they were worn out.

BRAKE MAINTENANCE

There was credible evidence from which the jury could determine that the tractor was new in 1966; that on September 19, 1968 it had been operated 172,392 miles; that it still had the original brake linings; that the brake linings had last been adjusted at 135,187 miles on May 17, 1968; and that the brakes should have been adjusted at least every 10,000 miles.

Defendant in seeking reversal of the jury’s verdict, which has been approved by the Trial Judge as the 13th juror, has assigned 19 errors. Assignments numbered one, four, five, six, seven, eight, and 10 through 18 are unsupported by authority in violation of Rule 13 of this Court and are accordingly overruled. Jackson v. Jackson, 25 Tenn.App. 198, 154 S.W.2d 797 (1939). The remaining assignments — numbered two, three and 19 — raise one issue and will be considered together. By these assignments Defendant contends that there was no credible evidence adduced to support the verdict of the jury.

This Court does not sit as a jury of three to reweigh the evidence in jury cases. Once a jury, who has the opportunity of seeing and hearing the witnesses themselves, has determined the factual issues involved in a law suit and that determination has been approved by the Trial Judge, we may only review the evidence to ascertain if there is any credible evidence upon which that determination may be predicated. If there is, then even if we believe that the trier of fact has reached an erroneous decision, we must accept it. As is well known to all who practice before the appellate courts of this state, the burden of showing that there was no credible evidence to support a jury verdict is a massively heavy one to bear.

However, this does not mean that we must passively sit by and allow patently impossible, incoherent, or perjured testimony to support a jury verdict. The rule is that there must be some credible evidence— not merely some evidence — to support a jury verdict. That is, there must be some evidence which is capable of being believed by reasonable men, although we may not choose to believe it ourselves.

A corollary of this standard has come to be known as the “physical evidence” rule. In Oliver v. Union Transfer Co., 17 Tenn.App. 694, 698, 71 S.W.2d 478, 480 (1934), the Middle Section of this Court quoted with approval from a Kentucky case which described this rule:

A statement of alleged facts inherently impossible and absolutely at variance with well-established and universally recognized physical laws will not supply the required scintilla of evidence, a theory inherently impossible based upon a statement of alleged facts certainly cannot supply it. Louisville Water Co. v. Lally, 168 Ky. 348, 182 S.W. 186, 187, L.R.A. 1916D, 300.

See also: Jenkins v. Associated Transport, Inc., 330 F.2d 706 (6th Cir. 1964); Gordon’s Transports v. Bailey, 41 Tenn.App. 365, 294 S.W.2d 313 (1956); Harris v. Miller, 24 Tenn.App. 332, 144 S.W.2d 7 (1940).

This Court stated as far back as 1914: It seems to be now firmly established that appellate courts may disregard impossible or palpably improbable testimony and treat it as no evidence: Quotaing [Quock Ting] v. U. S., 140 U.S., 417 [11 S.Ct., 733], 35 L.Ed., 501. Tested by this rule, plaintiff’s explanation of the seeping of the fluid from the outside must be discredited. This was and is demonstrably impossible, and no Court could proceed to judgment satisfactorily under the circumstances.
It seems to us that another rule is or should be operative: Positive testimony should be weighed in connection with its circumstances and with the situation to which it has reference; and if these circumstances demonstrate absolute untruthfulness of the testimony, then the statement of fact, however positively made, should be disregarded: Atlantic Works v. Brady, 107 U.S., 192 [2 S.Ct. 225], 27 L.Ed. 438.

Nashville C. & St. L. R.R. v. Justice, 5 Tenn.Civ.App. 69, 71 (1914).

The instant case is one where this rule is operative. Plaintiff Brank testified positively that the truck was in second gear and raced out of control, reaching speeds of 50 to 80 miles an hour. But all other proof showed that this was a physical impossibility; that the truck could not reach such speeds in second gear even with full power applied and that the attempt to reach such speeds in second gear would destroy the engine beyond repair. Also, the uncontra-dicted evidence is that the truck could have been driven (and similar trucks were driven) down this mountain in any of several low gears without the brakes ever being applied. Similarly, the testimony strongly indicates that, in any gear on the high side, the brakes were not designed to stop the truck on inclines such as this.

We have viewed the brake shoes taken from the trailer and while, of course, we cannot say whether they were properly adjusted, we believe we may confidently say that they were not in need of relining. Therefore, failure to reline the brakes could not be considered negligence on the part of Defendant.

The record does support a finding by the jury that Defendant was negligent in failing to adjust the brakes of the tractor. Defendant denies this allegation and offered proof to the contrary but Plaintiffs’ proof on this aspect of the case is credible and so we are bound by it. However, proving that Defendant was negligent in this regard is not in itself sufficient to support the verdict. It must also be proven that this negligence was the proximate cause of the injuries suffered by Plaintiffs.

As we have said, the physical evidence reveals that the truck could have negotiated the. mountain without any brakes at all if driven in the proper gear. Yet beyond that, we find it palpably improbable that all of the brake shoes on the truck, even if maladjusted, would wear down both simultaneously and instantaneously causing the truck to run out of control as it is claimed that it did.

Admittedly, the truck did reach uncontrollably high speeds and did wreck. Yet, this result in itself cannot supply the reason for the wreck nor the person responsible for this tragic occurrence. This Court is certainly not accusing Plaintiff Brank of conscious or unconscious falsehood, but we simply do not find that his explanation of the way the accident occurred is physically possible. Therefore, unless the evidence provides another credible explanation which would tie the negligence of Defendant to the accident the action must fail. We have searched the record and can find none.

Therefore, since the only negligence competently proven against Defendant could not reasonably be taken as the cause of the accident, we must sustain the assignments of error questioning the evidence, reverse the judgment of the Trial Court and dismiss the action with the costs taxed against the Appellees.

PARROTT and SANDERS, JJ., concur.

      . Assumption of risk and contributory negligence were defenses raised in this suit and have been summarily briefed on appeal. However, the determination of this suit makes it unnecessary to decide these questions and they are, therefore, pretermitted.

      . This was an experiment conducted by the defense. The truck was driven in first gear instead of second (the gear Brank testified he was in at the time of the accident) apparently because of a misunderstanding of Brank’s testimony in his discovery deposition. The driver during the experiment testified that the truck would have traveled three to four miles per hour faster in second gear.


author: TODD, Judge.

text:
    Addie Beulah DUKES, Complainant-Cross Defendant, v. Oscar Lee DUKES, Defendant-Cross Complainant.
    Court of Appeals of Tennessee, Middle Section.
    April 25, 1975.
    Certiorari Denied by Supreme Court Aug. 25, 1975.

      Mose J. Davie, Nashville, for complainant-cross defendant.
    John L. Mitchell, Cunningham, Mitchell & Hicks, Clarksville, for defendant-cross complainant.
   OPINION

TODD, Judge.

The complainant-cross defendant, Addie Beulah Dukes, has appealed from the decree of the Trial Court dismissing her suit for divorce from bed and board and granting to the defendant-cross complainant, Oscar Lee Dukes, an absolute divorce.

The three assignments of error are as follows:

.“The Appellant assigns as error, the action of the trial Court in overruling her Motion to dismiss the Cross-Bill, as follows:
1. That the Court abused its discretion in dismissing Appellant’s Original Petition for Separate Maintenance.
2. That the Court abused its discretion in awarding the Appellee and Cross-Complainant a divorce on uncorroborated allegations.
3. That the Court erred in awarding the Appellee a divorce on grounds of cruel and inhuman treatment upon his admission that he had committed adultery during this marriage.”

On October 8, 1973, appellant-wife filed her complaint based upon cruel and inhuman treatment and praying for a legal separation, support and division of property.

On November 19, 1973, appellee-husband filed his answer denying misconduct.

On January 30, 1974, appellee-husband filed his cross-bill charging misconduct with other men, physical attacks upon appellee, misuse of funds, and deliberate refusal to work in order to force appellee to support her (appellant-wife). The cross-bill prayed for an absolute divorce and division of property.

On February 26, 1974, in response to a motion of appellee, appellant-wife filed a bill of particulars reciting various episodes of marital violence, non-support, and requests for a divorce so that he (appellee) might marry one of his girl-friends.

On March 4, 1974, appellee-wife filed her answer to the cross-bill denying all misconduct alleged therein.

The briefs refer to an amendment of the original complaint to charge adultery, but no such pleading appears in the technical record. The memorandum opinion of the Trial Judge contains the following:

“This matter came on to be heard by the undersigned on April 25, 1974. At that time the attorney for complainant moved the Court for permission to include as grounds for divorce that the defendant had committed indignities to complainant’s person, that he was guilty of adultery and that he had failed to support the complainant. The defendant and cross-complainant requested and was granted permission to amend his cross bill to show that the defendant was guilty of desertion.”

The briefs also refer to a request for and finding of fact by the Trial Judge, which request does not appear in the record.

The memorandum opinion of the Trial Judge does recite a number of findings, viz.:

1. That appellee-husband contributed substantial sums for purchase of joint property which appellant-wife titled in her own name.
2. That appellant-wife forgave appel-lee-husband after each episode of violence and continued to live with him as man and wife.
3. That appellant-wife’s testimony that she was unable to work was not credible.
4. That appellant-wife failed to prove the allegations of her original complaint or has condoned the same.
5. That appellant-wife failed to prove nonsupport or adultery.
6. That appellant-wife has been guilty of cruel and inhuman treatment such as to entitle appellee-husband to an absolute divorce.

The final decree dismissed the suit of appellant-wife, granted an absolute divorce to appellee-husband, and made a division of property.

From the assignments of error, supra, it is seen that appellant makes no complaint as to the division of property, but only as to the refusal to award appellant-wife a legal separation and the award of absolute divorce to appellee-husband.

As to the first proposition, that the suit and prayer of appellant-wife for separation and support should have been sustained, appellant insists that the evidence shows non-support. Appellant did testify that she had received only $6,900.00 in thirteen years of marriage, and nothing “since last July.” (The cause was heard on July 8, 1974.)

In contradiction of this testimony, appel-lee-husband testified that he had maintained a joint bank account with appellant until 1965 and thereafter he had supplied a monthly house payment until the date of trial and had contributed to the support of appellant at all times during their marriage. There is further evidence that ap-pellee-husband supplied funds for purchase of property which appellant titled in her own name, and that appellant was a licensed practical nurse but refused to work without reasonable cause.

As to the other grounds of appellant’s original complaint, the testimony of the parties is equally irreconcilable. The Trial Judge saw fit to accept the version of ap-pellee-husband and to reject that of the appellant-wife. The cause was tried orally, and the Trial Judge had an opportunity to see the witnesses and hear them testify in person. Without equal opportunity to observe the witnesses, this Court is at great disadvantage in any effort to review the conclusions of the Trial Judge as to their credibility.

In Newberry v. Newberry, Tenn.App., 493 S.W.2d 99 (1972), it was held that the judgment of the Trial Judge as to the credibility of witnesses should not be overturned “unless the clear preponderance of the evidence is to the contrary.” See also Smith v. Smith, 47 Tenn.App. 548, 339 S.W.2d 326 (1960).

Other decisions have expressed even stronger views as to the weight of the judgment of the Trial Judge as to credibility of witnesses. See Weeks v. Summerlin, 62 Tenn.App. 650, 466 S.W.2d 894 (1974); Allen & Bean, Inc. v. Miller, 61 Tenn.App. 373, 454 S.W.2d 367 (1970); National Service Fire Ins. Co. v. Williams, 61 Tenn.App. 362, 454 S.W.2d 362 (1969) and authorities cited therein.

The first assignment of error is respectfully overruled.

The second and third assignments complain of the granting of a divorce upon the cross-complaint of appellee-husband. The second assignment is based upon the ground that the allegations of appellee-husband were uncorroborated.

T.C.A. § 36-813 is as follows:

“36-813. Decree not made without proof. — If the defendant admit the facts charged in the bill or petition and relied upon as the ground for a divorce, or the bill be taken for confessed, the court shall, nevertheless, before decreeing a divorce, hear proof of the facts alleged as aforesaid, and either dismiss the bill or petition or grant a divorce, as the justice of the case may require. [Code 1858, § 2459 (deriv. Acts 1835-1836, ch. 26, § 6); Shan., § 4212; mod. Code 1932, §')8437.]”

In Fulford v. Fulford, 156 Tenn. 640, 4 S.W.2d 350 (1928), the Supreme Court affirmed the dismissal of a divorce suit for lack of corroboration of complainant’s testimony, however the Court said:

(2)We do not intend to lay it down as an inflexible rule that under no circumstances shall a divorce be granted upon the uncorroborated testimony of one of the parties. A case may arise in which it would be impossible to procure corroboration, circumstantial or otherwise. In the case before us, however, the parties seem to have lived in a boarding house at New Orleans, and it does not appear that it would have been a matter of any great difficulty for the complainant to have procured evidence corroborating her own at least as to part of the essential particulars. We think this is a case for the application of the general rule.
“The decree below will accordingly be affirmed, but without prejudice to the rights of the complainant to bring another suit which she may be able to sustain with sufficient proof.” 156 Tenn., p. 641, 4 S.W.2d, p. 350.

The statute, quoted supra, does not appear to require corroboration of the testimony of the successful party in a contested divorce case. Rather, it appears to require some evidence in every case, especially in uncontested cases where the divorce is granted by default or upon admitted facts.

The generally recognized rule requiring corroboration is a rule of policy enunciated by the courts and, as stated above, is not inflexible.

In the present case, it does appear that the testimony of the appellee-husband as to his grounds of divorce was largely uncorroborated. After testifying, himself, appel-lee offered three witnesses. The first, identified only as “Sergeant Marcias” testified only as to the good reputation of appellee and the violent temperament of appellant. In the latter respect, temperament, the witness did circumstantially corroborate the testimony of appellee.

The next witness for appellee, one Calvin Mason, also testified as to the good reputation of appellee and violent temperament of appellant.

The final witness for appellee was one Edward Todd, Jr., who testified only as to the good reputation of appellee.

It does not appear that the violent altercations between the parties were witnessed by anyone who could corroborate the testimony of either party. The witnesses for appellant could only state their observation of her condition after the altercations. Thus, it appears that fault before and during the altercations must be allocated on the basis of credibility of the parties, and the case thereby falls within the exception to the general rule requiring corroboration.

Other elements of cruel and inhuman treatment include appellant’s indiscreet conduct in “keeping a boarder” while appel-lee was away from home and permitting the boarder’s clothing to remain in the clothes closet to be discovered by appellee. The evidence of this misconduct might have been corroborated by calling neighbors who saw the “boarder” on the premises, or by calling witnesses to view the clothes closet. However, the failure to do so is not deemed fatal to the divorce decree.

The duplicitous financial and property dealings of appellant also appear to have entered into the picture of cruel and inhuman conduct as found by the Trial Judge. Again, corroboration might have been available, but it was not shown to be available, and its absence should not invalidate the decree under the circumstances of this ease.

The second assignment of error is respectfully overruled.

The third assignment relies upon an alleged admission of adultery by the appellee-husband to avoid the result of cruel and inhuman treatment by the appellant-wife as found by the court.

In Canning v. Canning, 59 Tenn.App. 678, 443 S.W.2d 502 (1968) this Court held that admitted adultery of the husband was a complete bar to his right to a divorce on the ground of cruel and inhuman treatment. In that case the opinion of this Court states:

“On cross examination complainant admitted that he had known Jean Lovett since about 1950, and that he and Jean Lovett were living together as man and wife in Memphis, Tennessee, and that they had bought the property as husband and wife; that he later conveyed to her his interest in the property using the name Jean L. Canning; that he listed her as an exemption on his income tax return as his wife and that he was living with her at the time of the trial. Also he admitted that he had been going out with the said Jean Lovett even before he separated from his wife in 1951 and that after the separation they shared an apartment in New York and that she came to Memphis with him in 1957 and that they had lived together in Memphis since 1957.” 59 Tenn.App., pp. 684, 685, 443 S.W.2d, p. 505.

Thus it is seen that the adultery of Mr. Canning was admitted by him under oath during the trial in unequivocal terms. Such an admission under oath by a party had been held to be conclusive. See Harvey v. Wheeler, 57 Ten.App. 642, 423 S.W.2d 283 (1967); Wagner v. Niven, 46 Tenn.App. 581, 332 S.W.2d 511 (1959).

In the present case, however, there was no sworn admission of adultery. There was merely evidence that appellee-husband had written a letter to appellant stating that he had “an infection.” Appellee admitted writing the letter, but insisted that it was written in jest, that a correcting letter was promptly dispatched and that he had never been guilty of adultery. Thus, there was no admitted adultery of appellee, indeed it was denied; and in his memorandum, supra, the Trial Judge resolved this issue in favor of appellee. As previously indicated, this Court is not disposed to disturb the judgment of the Trial Judge as to the credibility of the parties.

The third assignment of error is respectfully overruled.

Each assignment of error has been carefully considered and overruled. The entire record has been reviewed with the resulting conclusion that the action of the Trial Judge was correct. The record does not present the strongest case in favor of the appellee-husband, but it does present strong reasons why the marriage of these parties should be dissolved. Their married life has clearly been a period of constant turmoil and successive altercations. The evidence does not preponderate against the decree of the Trial Judge which must be affirmed. T.C.A. § 27-303.

The decree of the Trial Judge is affirmed. The costs of this appeal are adjudged against appellant. The cause is remanded for any proceedings which may be necessary and proper in the implementation of the decree.

Affirmed and remanded.

SHRIVER, P. J., and DROWOTA, J., concur.