author: PER CURIAM.

text:
    James R. GLENN, Petitioner, v. Brenda CONNER and Billy W. Conner, Respondents.
    Supreme Court of Tennessee.
    Feb. 9, 1976.

      Roy Hall, Waldrop, Hall & Tomlin, Jackson, for petitioner.
    Lloyd Tatum, Henderson, for respondents.
   OPINION

PER CURIAM.

This is one of two suits for personal injury and property damage which arose from two separate and distinct automobile collisions. The particular lawsuit at issue is the only one which has been appealed to this Court. The trial court directed a verdict in favor of the petitioner. The Court of Appeals reversed and remanded.

The determinative legal issue which emerges from the following facts is whether a non-negligent driver has a duty to warn others about a dangerous highway condition to which he contributed.

I.

On April 3, 1971, at or about 8:30 p. m., petitioner was proceeding northwardly on U. S. Highway 45, approximately one-fourth mile from Pinson, Tennessee, when he overtook a truck traveling in the same direction. Petitioner testified that the truck’s taillights were not on; and that as he approached, this absence of a visible signal forced him to* slam on his brakes, whereupon he lost control, crossed the center line and collided with an automobile proceeding southwardly, driven by Danny Weaver.

The impact to both autos was slight, with their respective left rear panels sustaining the majority of the damage. However the collision caused Weaver’s vehicle to come to rest perpendicular to the highway, obstructing the entire northbound lane. Petitioner’s vehicle came to rest completely off the surface of the two-lane highway, on the western shoulder facing north.

The two drivers immediately engaged in discussion as to fault and the extent of damage. While their conversation continued, the driver of the truck (which allegedly caused the entire episode), learning that there were no personal injuries, drove from the scene never to be heard from again. At this same time, Weaver’s companion walked to a nearby house in an effort to notify police officials. Shortly thereafter two or more passersby traveled around the scene, one of whom suggested that Weaver’s car be moved. All these events transpired during a period of four to eight minutes after the initial collision.

Petitioner made repeated verbal requests to Weaver to remove his vehicle from the highway. The vehicle was mechanically in order following the collision, but Weaver refused to move it because of his understanding that police must first inspect the scene.

Then somewhere between four and eight minutes after the accident and following the above described activities, respondents approached the scene traveling in the northbound lane at an approximate speed of 50-60 miles per hour. Weaver spotted the oncoming car, and realizing its inability to stop in time, began running toward the respondent’s auto, waving his arms and yelling a warning. Petitioner, being alerted to the emergency, began to follow Weaver, repeating these sights and sound of warning. At approximately forty (40) feet south of his stationary vehicle, Weaver, aware that his efforts were futile, jumped aside, and respondent, thus unable to take to the right shoulder, was forced to careen broadside into the obstructing Weaver automobile. Respondent left thirty-three (33) paces of skid marks. His car was severely damaged and his wife suffered rather serious injuries.

The proof is disputed as to the following: (1) did the truck have lights? (Weaver testified that its headlights were visible); (2) did petitioner voluntarily cross the center line? (Weaver also testified that petitioner attempted to pass the truck and on sighting his vehicle cut short his attempt; only to then initiate a second attempt which ended in collision); (3) were the lights on Weaver’s obstructing vehicle left burning? (petitioner testified that Weaver cut off his lights after the impact); (4) what actions did petitioner and Weaver actually take to warn oncoming motorists?

As a result of these two separate collisions, J. M. Weaver (owner of the obstructing vehicle and father of driver Danny Weaver) filed suit against petitioner and respondents. The respondents counterclaimed against petitioner and the Weavers. At the close of all the proof, the trial judge directed a verdict for petitioner in the case of Conners v. Glenn and Weaver, and submitted to the jury the remaining issues therein. The jury being unable to resolve the remaining issues, a mistrial was declared. The Conners then non-suited as to the Weavers.

The instant appeal comes from the reversal by the Court of Appeals of the directed verdict in favor of petitioner. (As regards the suit, wherein Weaver is the plaintiff, no appeal arose because the verdict had no adverse effect upon such suit).

II.

The specific, narrow issue framed by the evidence herein presented has virtually evaded judicial interpretation and development by the courts of this State. For all practical purposes, this case is one of first impression in Tennessee.

In 1932, the Court of Appeals, E.S. in the case of Brown v. Wallace, 15 Tenn.App. 187, voiced the following pertinent generalized statement:

The leaving of a car upon a highway for the making of absolutely necessary repairs may also in certain instances be negligent where it is so left as to unnecessarily obstruct the traffic and where no precautions are taken to signal approaching cars. 15 Tenn.App. at 193 (Emphasis supplied)

However, Brown v. Wallace differs from the case at bar in that there, the vehicle was mechanically disabled and was parked in violation of specific city ordinances.

Also of tangential application are the decisions which announce: (1) that construction companies are under a duty to warn others of obstructions or structural projects on the highway which, though not negligently constructed, would foreseeably pose a danger to motorists, Vance v. Hale, 156 Tenn. 389, 2 S.W.2d 94 (1928); Brinkley v. Gallahar, 50 Tenn.App. 504, 359 S.W.2d 857 (1962); and (2) that any disabled bus, truck or truck tractor must display lighted flares as warning devices of its stationary position, Inter-City Trucking Co. v. Daniels, 181 Tenn. 126, 178 S.W.2d 756 (1944); Watson v. Southern Bus Lines, 186 F.2d 981 (6th Cir. 1951); see also §§ 59-919, 920 T.C.A.

While these Tennessee cases, and the principles upon which they are founded approach the issue at hand, decisions from other jurisdictions prove more pertinent.

The courts of Georgia touched upon a non-negligent driver’s “duty to warn” in the case of Hardy v. Brooks, 103 Ga.App. 124, 118 S.E.2d 492 (1961) when the following rule was adopted:

... .if one by his own act, although without negligence on his part, creates a dangerous situation in or along a public highway and it reasonably appears that other users of the highway in the exercise of ordinary care for their own safety may be injured by the dangerous situation so created, the one creating the same is under a duty to eliminate the danger or give warning to others of its presence, (citing cases from Nebraska and Louisiana). (Emphasis supplied) 118 S.E.2d at 495.

In 1962, the Supreme Court of South Carolina in Matthews v. Porter, 239 S.C. 620, 124 S.E.2d 321 (1962) (a case involving two separate collisions) recognized a driver’s “duty to warn” following a collision which obstructs the highway. However, the court limited the application of the duty to a driver whose negligence had caused or created the obstruction.

With direct reliance upon Hardy v. Brooks, supra, the Supreme Court of Colorado in Kirkham v. Hickerson Bros. Truck Co., 162 Colo. 125, 425 P.2d 34 (1967) announced a similar rule based upon the “common law doctrine that one who moves an obstruction into someone else’s path and thus creates a hazard to another must either remove the obstruction or warn others of the hazard if he has a reasonable time and opportunity to do so.”

In a later opinion, the Colorado Court of Appeals, in a case involving one automobile which collided with the rear of a stalled automobile, voiced the general rule by incorporating a quotation from Corpus Juris Secundum:

The general rule as stated in 60A C.J.S. Motor Vehicles § 335(1), is:

The operator of a standing or parked vehicle which constitutes a source of danger to other users of the highway is generally bound to exercise ordinary or reasonable care to give adequate warning or notice to approaching traffic of the presence of the standing vehicle, and such duty exists irrespective of the reason for stopping the vehicle on the highway. So the driver of the stopped vehicle must take such precautions as would reasonably be calculated to prevent injury, whether by the use of lights, flags, guards, or other practical means, and the failure to give warning may constitute negligence, even in the absence of any specific duty imposed by governmental regulations. Getz v. Glassner, 28 Colo.App. 267, 473 P.2d 175, 176 (Colo.App.1970)

In a series of automobile collision cases, the Texas Court of Civil Appeals formulated a general rule which clearly enunciated a driver’s “duty to warn” once his vehicle is in a stationary position upon the highway.

First, in Rodgerson v. Lafollette, 424 S.W.2d 280 (Tex.Civ.App.1968), the court held that even though a driver is properly parked upon a highway, he has “a common law duty to warn other motorists that it was parked if an ordinary prudent person, in the exercise of ordinary care, would have anticipated and foreseen that, in the absence of such a warning, a collision might occur.” This holding was followed and the rule rearticulated in the later case of Traders and General Insurance Company v. Anderson, 472 S.W.2d 582 (Tex.Civ.App.1971).

Then in 1974, this same court in a case similar to the one under review, (involving two separate and distinct automobile collisions), clearly applied the rule of a driver’s “duty to warn” to the non-negligent driver involved in a collision when it held:

There is authority for the proposition that, irrespective of the reason for stopping, an operator of a stopped vehicle that poses a source of danger to other motorists, owes a common law duty to warn those motorists that he is stopped, if an ordinary prudent person in the exercise of ordinary care would have foreseen that, in the absence of such warning, a collision might occur. Traders and General Insurance Co. v. Anderson, 472 S.W.2d 582 (Tex.Civ.App.—Tyler 1971, n. w. h.); Shepard v. Ray, 432 S.W.2d 178 (Tex.Civ.App.—Dallas 1968, n. w. h.); McClellan v. Lee, 426 S.W.2d 635 (Tex. Civ.App.—Houston, 1st Dist., 1968, n. w. h.); Rodgerson v. Lafollette, 424 S.W.2d 280 (Tex.Civ.App.—Houston, 14th Dist., 1968, n. r. e.). See 60A C.J.S. Motor Vehicles § 335(1). Lofton v. Norman, 508 S.W.2d 915, 919 (Tex.Civ.App.1974).

Following this line of cases, we hold that after the collision, petitioner was under a “common-law duty to warn” other motorists of the obstruction in the highway, to which he had contributed. We hold that this duty applied, regardless of whether his contribution to the dangerous condition stemmed from his negligence in operating his vehicle. We add that it had full application to petitioner even though a similar duty rested upon Weaver, the operator of the obstructing vehicle. It is no defense that a similar duty rested upon another person. Matthews v. Porter, supra.

III.

Having established that petitioner was under a recognized “common-law duty to warn”, the evidence causes the issue to then become whether Weaver’s refusal in not moving his operable vehicle, acted as an unforeseeable intervening cause which negated any negligence by petitioner as to the second collision. Or stated alternatively, did the actions of Weaver extinguish petitioner’s duty to warn?

We concur in the finding by the trial court and the Court of Appeals that the refusal by Weaver to remove his auto was an unforeseeable intervening cause, which superseded any negligence by petitioner in the initial operation of his vehicle on the issue of proximate cause of the injuries to the Conners from the second collision. This intervention must be distinguished from the issue under discussion of whether the same refusal to move the vehicle acted as a superseding cause which relieved petitioner of his separate “duty to warn.”

This Court defined with clarity the application of intervening or superseding cause in Lancaster v. Montesi, 216 Tenn. 50, 390 S.W.2d 217 (1965), when it explained:

Once a duty to plaintiff is established, and negligence of the defendant established, the ultimate question is whether the negligence of defendant was the proximate or legal cause.
^ * * * . * if.
The negligent act of defendant, to be the legal cause of plaintiff’s injuries, need not be the sole cause. It is sufficient if such act was a substantial factor in causing the harm, (citation omitted).
However, there may be conduct, either by plaintiff or a third party, of such nature as to break the chain of causation between defendant’s act and the harm, and so relieve the defendant of liability. Such conduct is known in the vernacular of the law as an independent, intervening cause.
The same rule of foreseeability is applied to intervening cause. The defendant, in order to be liable, must have been able to anticipate or reasonably foresee what usually will happen, (citation omitted). The rule ‘does not require him to anticipate and provide against, what is unusual or * * * remotely possible, but whether it was probable according to the usual experience of persons.’ (citations omitted). 390 S.W.2d at 216, 217. (Emphasis supplied)

To exculpate petitioner from any negligence in not warning approaching motorists, the intervening cause (the refusal of Weaver to move his vehicle) must be one which breaks the sequence or causal connection between his negligence and the injury to the Conners. Matthews v. Porter, supra.

In a case of factual similarity, Traders and General Insurance Company v. Robison, 289 So.2d 178 (La.App.1973), the application of intervening cause produced the following result:

The second accident was not the natural and probable consequence of Mrs. Burton’s negligence in causing the first accident, namely, failing to yield the right of way to Miss Seals. We find, as did the trial court, that the second accident resulted from an independent, intervening, unforeseeable cause, that is, the negligence of Miss Seals in failing to discharge her duty to warn the traveling public of the danger attendant upon her vehicle being stalled on a public road, (emphasis supplied). 289 So.2d at 184.

We find the descriptive adjectives used by the court in Traders and General Insurance Company to be applicable and appropriate in describing the action of Weaver in refusing to move his mechanically operable automobile. Such was an independent, intervening and unforeseeable cause, and its effect was to supersede any negligence by petitioner in failing to properly warn oncoming motorists of the hazard to which he had contributed.

We thus extend the reasoning of the Court of Appeals and state that Weaver’s refusal to remove his vehicle was an intervening cause which broke any chain of causation for the injuries to the Conners stemming not only from any negligence by petitioner in operating his vehicle, but also from any negligent failure to properly warn oncoming travelers.

IV.

Ordinarily, once the court determines that a defendant is operating under a legal duty, it is for the jury to determine if the actions by the defendant were satisfactory in discharging that duty. Prosser, supra. And it has been held that the operation under the specific “duty to warn” presents a jury question. Lofton v. Norman, supra.

Yet, we find that reasonable men could not differ as to the unforeseeability of the intervening cause — Weaver’s refusal to remove his operable vehicle from its perpendicular position across a traveled U. S. Highway in the nighttime.

Accordingly, we affirm the Court of Appeals in its construction that petitioner was under a “common-law duty to warn,” regardless of his negligence in operating his vehicle, but we reverse as to its interpretation that the existence and establishment of the intervening cause was a matter for the jury.

We hold that Weaver’s conduct, as a matter of law, constituted the proximate cause of the injuries and damages sustained by the respondents, as between the parties in this appeal.

Reversed.

      . Justice Chambliss, speaking for this Court in Inter-City Trucking Co. v. Daniels, supra, articulated the general philosophy behind the statutory development of warning devices for commercial vehicles:
      The legislation was doubtless enacted to meet an urgent demand based on experience for the better protection of travelers on the highway.

      . Dean Prosser defines intervening cause as follows: An intervening cause is one which comes into active operation in producing the result after the negligence of the defendant. § 44, Prosser on Torts (4th ed., 1971). (Emphasis his own).


source: Caselaw Access Project

author: HARBISON, Justice.

license: Public Domain

text:
    KLOPMAN MILLS, INC., and Liberty Mutual Insurance Company, Appellants, v. Jack H. SOUTH, Appellee.
    Supreme Court of Tennessee.
    Feb. 9, 1976.
    Tom R. Grayson, Mountain City, for appellants.
    Max E. Wilson, Mountain City, for appel-lee.
   OPINION

HARBISON, Justice.

This is a workmen’s compensation action in which appellee, an employee of Klopman Mills, sued his employer, alleging that he sustained a compensable heart attack in the scope and course of his employment. This contention was denied by the employer, which alleged that the employee had suffered from an illness not covered by workmen’s compensation, and that his medical and hospital bills had been paid through group insurance coverage carried by the employer.

The employee, Jack South, was thirty-five years of age at the time of the trial and had been employed at Klopman Mills since 1968 in Mountain City, Tennessee. For a period of nearly three weeks prior to March 28, 1974 he had been traveling with other employees daily to the company plant at Bristol, Tennessee, where he was receiving instruction in a training program. There is no evidence that the employee had ever suffered from coronary disease or had experienced any sort of heart trouble prior to March 28, 1974.

On that date he and other employees drove to the Bristol plant and had a light breakfast. He then commenced his daily work, which involved some lifting and handling of equipment in connection with looms in the factory. After he had worked for an hour or so, the employee began to suffer from a headache, and later he became nauseated. He reported his illness to his supervisor, and was given aspirin at the first-aid station. Thereafter he returned to work, but continued to feel ill and to suffer from nausea and chest pains during the rest of the day. When he arrived at home, he complained to his wife of feeling unwell, and ate little if any dinner. He retired at between 9:30 and 10:30 p. m., and awoke early in the morning hours of March 29 experiencing nausea and complaining of severe pain in his chest and left arm. Relatives took him to the Johnson County Memorial Hospital, where he was admitted as a patient under the care of Dr. F. W. Wam-pler. He remained in the hospital for approximately seventeen days, and was given medication consistent with a tentative diagnosis made by the doctor of acute myocardial infarction.

Testifying at the trial of this case, however, Dr. Wampler stated that this diagnosis was a tentative one at best, despite the fact that it was written into the discharge summary of the patient when he left the hospital. Dr. Wampler testified that the complaints and symptoms of the patient were consistent with the onset of a myocardial infarction, and he admitted that he had stated to the members of the family of the employee that Mr. South had experienced a mild heart attack. The doctor testified, however, that successive readings on electrocardiogram did not reveal significant or extensive changes, and that, although he treated the patient for a heart attack during his hospital stay and for several months thereafter, he became increasingly concerned as to whether he had or had not made a correct diagnosis. Finally, in August 1974, Dr. Wampler told the employee that he had concluded that the patient had not experienced a heart attack, that he was not suffering from cardiac disease, had no damage to his heart and could begin to resume activity at work.

On August 7, 1974 Dr. Wampler referred the patient to Dr. McLeod, a cardiac specialist in Johnson City, Tennessee. He received a report from Dr. McLeod to the effect that “there was no evidence of car-dio-artery disease, and he felt the patient should increase his activity and return to work.” Dr. Wampler testified that he then discussed the matter in detail with Mr. South on August 29, and that he

“ . . . explained to him that I felt the original diagnosis was in error and at that time I discussed body reactions to physical and emotional stress and made the point that while I felt that this was not deliberate thing on his past, on his part, his incapacity at that time was due to a neurosis which led to his symptoms and urged, again as Dr. McLeod advised, I urged a gradual resumption of activity with the intention that he would return to work as soon as he had regained strength.”

In October 1974 the patient left the care of Dr. Wampler and consulted Dr. Fosto Obergon, a general surgeon, who reviewed his records and recommended that the patient should have “cardiac catheterization”. Dr. Obergon did not diagnose the patient as having a cardiac condition, but told the patient that if he did have a cardiac problem, “he should have something done about it and if he did not he should go back to work.” Dr. Obergon recommended to Mr. South that he go to Winston Salem, North Carolina to have tests made by a group of specialists there, and the patient did so.

At the trial Dr. Obergon testified that he could not say whether or not the employee did have a heart condition. After reviewing the reports from the North Carolina doctors, however, he testified:

“I can say now that this man as a part of the studies, he doesn’t have a cardiac disease.”

Dr. Obergon did say at one point that if the employee had in fact sustained a heart attack, “it is possible” that his activities at work on March 28, 1974 “could or might” have resulted in “his heart problem.” There is nothing, however, in Dr. Obergon’s testimony containing a medical opinion that the employee did in fact have a cardiac condition on or prior to March 28, 1974.

By agreement of the parties, reports from a group of specialists at the Bowman-Gray School of Medicine of Wake Forest University at Winston Salem, North Carolina, were filed in evidence. These reflect extensive examinations and tests of the employee, and the conclusion of the physicians at this medical school were to the effect that the employee had not sustained a myocardial infarction, did not suffer from coronary disease and that his symptoms were due to “chest wall discomfort” and anxiety. The patient was found to have a duodenal ulcer.

Of course, whether the employee had or had not suffered a heart attack is not entirely dispositive of the case. If he suffered an “injury by accident” arising out of and in the course of his employment, as those terms have been used and defined in the Tennessee workmen’s compensation law, he would be entitled to workmen’s compensation benefits, whether the initial tentative diagnosis of myocardial infarction was or was not correct. It would be necessary, however, to establish a causal connection between the working conditions and such illness or injury by expert medical testimony, and there is a complete absence of such medical testimony in the record.

Dr. Wampler was called for direct examination by counsel for the employee. Since his testimony was unfavorable to the employee, however, counsel was permitted to interrogate him at length, and the trial judge himself engaged in considerable examination of the doctor, in an apparent effort to establish that the employee did in fact have a heart attack which was caused by his working conditions. The testimony of Dr. Wampler, however, is clear and unequivocal. When asked whether the activities and conditions under which the employee performed his work “could have contributed to the illness”, Dr. Wampler testified:

“On the basis of the information I have I see no reason to believe that it did.”

When pressed as to whether the working conditions “could or might” have been a causative factor, the doctor said:

“Of course you know you’re dealing with medical probabilities and it seems to me that this would be very remote considering the time of onset of his symptoms as I am aware of them from the history.”

Again, when questioned “from the standpoint of could or might” he said:

“I feel that it is extremely unlikely that it would have. To make a categorical statement, however, that there is no possibility it could have, I think is beyond me, but I consider that extremely remote.”

There is no other medical testimony in the record upon which a causal connection between the conditions of employment and the illness of the employee could be predicated.

At the conclusion of the evidence, the trial judge found as a fact that the employee had sustained an acute myocardial infarction at his work, and that this heart condition was directly and causally related to the conditions of his employment. He commented upon the testimony of Dr. Wampler in the following terms:

“In the medical record which is a part of the official record in this case and a moving finger having written and made a public record can not go back, and change it at will without a reason. If public records could be reversed and changed, no title to any property, no body’s records in the Army or anywhere else would be safe. The doctor stated there in solemn form in a summary which is the official record of Johnson City Memorial Hospital of Mountain City, Tennessee. He said ‘Jack South suffered from an acute myocardial infarction.’ He stated on another occasion when he wrote a note which got into the hands of the personnel office, signed by Dr. Wampler, that ‘Mr. South is currently under my care and is hospitalized. He will be totally disabled for two months or more.’ That was written on the 31st day of March, 1974. This is clear-cut documentary evidence to the management that the man claimed to have a heart attack and it was signed by a medical doctor. The medical doctor in this instance not only communicated orally, but communicated in writing the disability.”

Although it is unquestionably true that the employee manifested the classic symptoms which are frequently associated with the onset of a heart attack, the medical testimony is absolutely uncontradicted in this record that he did not suffer from a myocardial infarction or other heart disease. There is nothing in the law of this state which prevents a medical doctor from changing his opinion or from correcting an initial diagnosis when he later concludes that that diagnosis was in error or based upon insufficient data. There is no evidence whatever in this record of bad faith on the part of Dr. Wampler. It simply cannot be established that the patient suffered a heart attack without competent medical testimony, and the employee’s whole case is based upon the contention that he did have a myocardial infarction.

The chancellor disallowed any claim for permanent partial disability in this case, but did award the employee temporary total disability benefits from the date of the onset of his illness, March 28, 1974, until May 13, 1975, the date of the report from the Wake Forest University Medical School faculty. Were we inclined to affirm any award of temporary total disability, however, we do not see any basis in this record for doing so beyond the date of August 29, 1974, on which date the employee was advised by Dr. Wampler that he had not had a heart attack, and that he could return to work. The chancellor also allowed the employee all medical expenses up to $7500, for a period of two years from and after the date of the onset of his illness. There is no evidence as to what these bills were, but the record indicates that all of the employee’s medical expenses have been paid through group insurance coverage.

We are of the opinion that the chancellor was in error in this case in allowing workmen’s compensation benefits. There is no material evidence in the record to establish that the employee did in fact sustain a heart attack. Further, and more important, there is no evidence that any condition from which he actually did suffer was causally related to the activities or conditions of his employment.

The judgment of the trial court is reversed and the suit is dismissed at the cost of appellee.

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


author: TODD, Judge.

text:
    NASHVILLE ELECTRIC SUPPLY COMPANY, INC., Plaintiff-Appellee, v. KAY INDUSTRIES, INC. and Donald R. O’Guin, an Individual, Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    July 25, 1975.
    Certiorari Denied by Supreme Court Dec. 22, 1975.

      Alan L. Saturn, Griffith & Stokes, Nashville, for plaintiff-appellee.
    Wilson N. West, Nashville, for defendants-appellants.
   OPINION

TODD, Judge.

The plaintiff, Nashville Electric Supply Company, Inc., sued Kay Industries, Inc., as principal obligor, and Donald R. O’Guin, as guarantor, for merchandise sold to said Kay Industries, Inc., in the amount of $10,775.26. The Chancellor rendered judgment against both defendants for $10,775.26. Kay Industries, Inc., did not appeal. Donald R. O’Guin has appealed and assigned the following errors: .

I.
“The Court erred in not holding that the required signature of either the Defendant Donald R. O’Guin or that of Jim O’Guin in the letter of April 5, 1973 as being an absolute condition precedent to a personal guarantee of payment on the part of Donald R. O’Guin.
II.
“The Court erred in construing the letter of May 23, 1973 as being a guarantee by default of the indebtedness owed by Kay Industries to Nashville Electric Supply, and further by not adopting the plain and unambiguous words in said letter.”

On or about March 29, 1973, plaintiff received an order from Kay Industries, Inc., which corporation had no established line of credit with plaintiff. On said date, plaintiff’s credit manager telephoned the appellant, O’Guin, and offered to fill the order if he, O’Guin, would guarantee payment. Mr. O’Guin replied that he would guarantee “the account” and that he would confirm by letter. Thereupon, the order was filled and shipped to Kay Industries, Inc.

Thereafter plaintiff received from appellant a letter dated April 5,1973, and stating the following:

“This letter is to confirm that I agree to be personally liable for all credit extended to Kay Industries at Centerville, Tennessee. I request that no shipment be made without purchasing order bearing my signature or Jim O’Guin.”

Subsequently, other orders were received and shipped to Kay Industries. Copy of each invoice was mailed to appellant, but he denies receiving them. None of said orders was supported by a purchase order as requested in the letter quoted supra.

On May 23,1973, appellant wrote a letter to certain individuals connected with Kay Industries, Inc., in which he stated:

“This letter is to further clarify your agreement on the payment of all outstanding bills owed by Kay Industries that I have personally guaranteed. Our agreement is you will deliver to American Auto, Camper and Mobil Home, Incorporated, at dealer’s cost, enough mobil homes to equal the dollar value of the outstanding accounts. The creditor and the amount owed is as follows:”

The list following the above quotation includes the name of plaintiff and the amount, $14,222.97. Subsequently a $4,097.18 payment was made by check signed “Kay Industries, Inc., Donald O’Guin, Sr.” This would have reduced the debt from $14,222.97 to $10,125.97. The difference between this latter amount and $10,775.26, the amount sued for, and the amount of the judgment is not explained in the record, however, it appears that no issue was made as to the amount due.

Appellant’s defense and appeal are based upon the proposition that the true meaning and legal effect of the sentence, “I request that no shipment be made without purchasing order . . .” was and is to fix a condition which limited defendant’s guaranty agreement; and, therefore, the failure of plaintiff to secure purchase orders for any of its shipments prevents the guaranty agreement from taking effect.

In support of this proposition, appellant points out that the guaranty letter was written without the benefit of skilled legal counsel. Appellant cites Garner v. Becton, 187 Tenn. 34, 212 S.W.2d 890 (1948) and Trimble v. Holley, 49 Tenn.App. 638, 358 S.W.2d 343 (1962); however, those cases involved the drafting of wills which are unilateral instruments. The present case involves a bilateral instrument in that it was prepared by one party and relied upon by the other party in a substantial business transaction. In the construction of a will, the sole objective is to ascertain the intent of the testator. In the construction of a bilateral contractual instrument, the objective must be the ascertainment of the mutual intent of the parties or, if the parties did not have the same understanding of the words used, to determine the more reasonable meaning which should have been intended by the parties.

Appellant cites McClure v. Keeling, 163 Tenn. 251, 43 S.W.2d 383 (1931), (a will case) for the proposition that “it is intended that every word have some meaning.” In the present case, the words, “I request” do indeed have a meaning, but not that which appellant now insists. The word, “request” does not ordinarily imply any form of compulsion.

“Request, v. To ask for something or for permission or authority to do, see, hear, etc., something; to solicit; and is synonymous with beg, entreat, and beseech. Artificial Ice & Cold Storage Co. v. Martin, 102 Ind.App. 74, 198 N.E. 446, 449. (In) its ordinary or natural meaning when used in a will, is precatory and not mandatory. Byars v. Byars, 143 Tex. 10, 182 S.W.2d 363, 364, 366.”—Black’s Law Dictionary, Fourth Edition, p. 1468.
“Request v. . express a wish or desire ... to ask for . . .” Webster’s Third New International Dictionary.

In Comford v. Cantrell, 177 Tenn. 553, 151 S.W.2d 1076 (1941), a will case, the Supreme Court reviewed a number of authorities and concluded that,

“The words ‘request,’ ‘desire,’ and the like, do not naturally import a legal obligation.”

If such is the rule in respect to wills, then it is applicable even more strongly to bilateral instruments where another party acts upon the commonly accepted meaning of the words.

Appellant cites Bright v. McKnight, 33 Tenn. (1 Sneed) 158 (1853), where no condition was attached to a guaranty, and the Court enforced the same. The Court said:

“In pursuance of this view, it was decided by the Supreme Court of the United States, in Drummond v. Prutman [Prestman], 12 Wheat. [25 U.S.] 515 [6 L.Ed. 712], that a guarantor shall be held bound to the full extent of what appears to be his engagements, and the rule in expounding these undertakings is that the words of the guaranty are to be taken as strongly against the guarantor as the sense will admit. Fell on Guar., ch. 5, p. 127; 12 East, 227.
“No injury can result from this doctrine, as it is in the power of guarantors to make their obligation dependent upon notice, demand, or any other condition they see proper, for their own protection and safety.
“It would be difficult to select words more direct, positive, and unconditional than those used in the present ease. The contract of Moore was before them, set out in all its terms, and their undertaking written upon it with express reference to its contents.
“It is, then, an absolute present guaranty, complete in its terms, and took effect as soon as it was acted upon by the plaintiff, to the extent of all the books delivered and not accounted for by Moore. It was not limited to any particular number of books, or books to be delivered in any specified time, so as to make it a limited guaranty, but it extended to all that might be delivered under that contract, and was, therefore, what is called a continuing guaranty. In such a case, the defendants would be bound until they gave notice to the plaintiff that they would be no longer liable.” 33 Tenn. (1 Sneed) pp. 168, 169.

In the view of this Court, the defendant, who wrote the letter of guaranty, was free to attach any conditions thereto which he might desire. He could have used the expressions “but only on condition .,” or “this applies only to . .,” or simply “I agree to be personally liable for purchases of Kay Industries on purchase order signed by me or Jim O’Guin,” or many other similar expressions clearly understandable by minds untrained in the law. This, he did not see fit to do, and his words must be interpreted by the Courts as ordinary businessmen (including plaintiff) would interpret them.

Appellant cites a number of authorities from other jurisdictions none of which are controlling in the present ease because none involves a contractual obligation involving the words, “I request.” The use of the word “request” in an instruction to a visitor, or subordinate, or in a will is not equivalent to its use in a letter assuming a contractual obligation.

Appellant’s argument admits the letter of guaranty, but insists that “it was his intention . . . that no shipment be made without the purchase order . . . .”

In the interpretation of contracts, it is the intention of the parties, that is both parties, which must be ascertained; and, in this respect, if the language of a written instrument is clear and unambiguous, the court must interpret it as written, rather than according to the unexpressed intention of one of the parties. Petty v. Sloan, 197 Tenn. 630, 277 S.W.2d 355 (1955).

Ordinarily, words used in contracts are given their usual, natural and ordinary meaning. Moore v. Life & Casualty Ins. Co., 162 Tenn. 682, 40 S.W.2d 403 (1931); Edelen Transfer & Storage Co. v. Willis, 16 Tenn.App. 99, 66 S.W.2d 214 (1934).

Even if it should be conceded that there is room for interpretation of the words, “I request,” the rules of interpretation require that the construction be adverse to the defendant who selected and used the words himself. Language of a contract will be construed most strongly against the party who drew it. Hanover Ins. Co. v. Haney, 221 Tenn. 148, 425 S.W.2d 590 (1968); Turner v. Zager, 50 Tenn.App. 674, 363 S.W.2d 512 (1962).

Words of a guaranty are to be taken as strongly against the guarantor as the sense will permit. Hassell Hughes Lumber Co. v. Jackson, 33 Tenn.App. 477, 232 S.W.2d 325 (1949) and authorities cited therein.

Moreover, defendant’s letter of May 23, 1973, supra, admitting that he had personally guaranteed plaintiff’s account, constitutes an admission which must be considered in interpreting his prior letter of April 5, 1973. Garner v. American Home Assur. Co., 62 Tenn.App. 172, 460 S.W.2d 358 (1969); Springfield Tobacco Redryers Corp. v. City of Springfield, 41 Tenn.App. 254, 293 S.W.2d 189 (1956); Calcasien Paper Co. v. Memphis Paper Co., 32 Tenn.App. 293, 222 S.W.2d 617 (1949). This rule is applicable to the negotiations of the parties prior to the contract. Bailey v. Brister, 49 Tenn.App. 191, 353 S.W.2d 564 (1961).

The circumstances under which the letter of April 5, 1973, was written militate against the interpretation urged by appellant. It is uncontroverted that the guaranty by defendant was oral in its original form and included no reservation as to purchase orders. The first order was actually shipped on said oral guaranty without a purchase order or demand for same.

The obvious reason for any provision regarding purchase orders would have been to assure that only necessary and proper orders were received and shipped. No question whatsoever is made as to the necessity or propriety of any of the purchases.

In short, this Court is satisfied that the legal and enforceable intention of the parties was that appellant should be unconditionally liable to plaintiff for all purchases made by Kay Industries, Inc., at any time before termination of the guaranty; and the “request” for purchase orders was a mere expression of a desire which, if ignored, might result in refusal to continue the guaranty as to future purchases.

Therefore, the decree of the Chancellor is affirmed. Costs of this appeal are taxed against appellant.

Affirmed.

SHRIVER and DROWOTA, JJ., concur.


author: PARROTT, Presiding Judge.

text:
    Ira Joyce HILL et al., Appellants, v. The CITY OF CHATTANOOGA, Tennessee, et al., Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    Oct. 10, 1975.
    Certiorari Denied by Supreme Court Feb. 9, 1976.
    Weill, Ellis, Weems & Copeland and William T. Roper, Chattanooga, for appellants.
    Randall L. Nelson, Chattanooga, for City of Chattanooga.
    Duggan & McDonald, Chattanooga, for Alan W. Derthick and Carroll J. Henley.
    Milligan, Hooper, Harris & Foster, Chattanooga, for H. E. Collins Contracting Co., Inc.
    Morgan, Garner & Wood, Chattanooga, for Alma C. Bryson.
    Stophel, Caldwell & Heggie, Chattanooga, for Seaboard Surety Co. of New York.
   OPINION

PARROTT, Presiding Judge.

This suit arises out of injuries sustained by thirteen-year-old Ira Joyce Hill when a shower room wall collapsed at the Alton Park Junior High School in Chattanooga. This appeal challenges the action of the circuit judge in sustaining motions for summary judgment made by the defendant contractor and architects; further, it granted a motion to dismiss made by the defendant city and its school board.

In appeals from grants of summary judgment we are called upon to decide whether the court below correctly applied the provisions of Rule 56 of the Tennessee Rules of Civil Procedure. In doing so we make an entirely fresh determination because only questions of law are presented. No presumption of correctness, T.C.A. 27-303, accompanies the decision of the trial court. Tennessee Rules of Civil Procedure 56.03 sets forth that

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

We must of course concede that there is here a threshold consideration involving a question of fact, namely, whether there is a “genuine” issue as to any material fact; it is not, however, of sufficient magnitude to raise any presumption as to the correctness of the decision below. Green v. Lanier, 61 Tenn.App. 487, 456 S.W.2d 345; McFadden v. Blair, 42 Tenn.App. 434, 304 S.W.2d 93.

Construction of the Alton Park school was completed in 1962 and the building was accepted by the city in that year. During the school year of 1964-65 the wall in question was completely rebuilt by workmen employed in the school system. Thus it is clear that some ten years lie between the collapse of the wall and the last involvement of the architects and contractor with it, and that some seven years separate the collapse and the city’s rebuilding of the wall.

The architects moved for summary judgment based upon the statute of limitations set up by Chapter 353 of the Public Acts of 1965, carried forward as T.C.A. 28-314 et seq. That statute places a one-year limit on personal injury, actions arising out of, inter alia, defective design of construction of improvements to real property; the period of limitation runs from the date of substantial completion of the improvement. Since the construction of the school was completed in 1962, the action of the plaintiff was clearly barred as to the architects. Watts v. Putman County, 525 S.W.2d 488 (Tenn.1975).

The contractor moved for summary judgment based upon completion and acceptance of his work by the city. Under the then prevailing law in Tennessee, the circuit judge’s grant of the motion was proper and indeed unavoidable. Smith v. Tucker, 151 Tenn. 347, 270 S.W. 66 (1925); Hester v. Hubbuch, 26 Tenn.App. 246, 170 S.W.2d 922 (1943); Evens v. Young, 196 Tenn. 118, 264 S.W.2d 577 (1954); Pulaski Housing Authority v. Smith, 39 Tenn.App. 213, 282 S.W.2d 213 (1955). The fact that our Supreme Court subsequently overruled the case law which mandated the summary judgment does not bear upon this appeal because incidents involved here occurred before the change of the law. We refer to Johnson v. Oman Construction Co., 519 S.W.2d 782 (Tenn.1975), which rewrote Tennessee’s law on a contractor’s liability after completion and acceptance of his work. However, we would note in passing that even were we able to follow Oman in this appeal, the contractor still would be entitled to his grant of summary judgment on the basis of T.C.A. 28-314 alone. It seems to us a needless expenditure of scarce resources to remand for this functionally identical result.

Because the contractor has no liability, a fortiori his surety, the Seaboard Surety Company of New York, has none.

We find nothing in the pleadings or proof submitted which could possibly make applicable the fraud and concealment provisions of T.C.A. 28-317.

The circuit court did not specify its grounds for granting the city’s motion to dismiss. It is clear, however, that the city and its school board are immune from suit arising out of the performance of governmental functions. Barnett v. City of Memphis, 196 Tenn. 590, 269 S.W.2d 906 (1954). Additionally, the provisions of T.C.A. 28-314 are applicable to the city’s 1964-65 repairs to the wall. The one-year limit upon the city’s hypothetical liability for personal injury had run long before Ira Joyce Hill entered junior high school.

It is self evident that because there is no liability on the part of the city, there is none on the part of its surety, the Insurance Company of North America.

We subscribe to the dicta in Watts v. Putman County, supra, wherein the desirability of such special-interest statutes of limitation is questioned. Nevertheless, the legislature having spoken, we are bound by the statutory period.

For all the foregoing, it results that the actions of the circuit judge are in all things affirmed. Costs are taxed to the appellants.

SANDERS and GODDARD, JJ., concur.


author: SANDERS, Judge.

text:
    LUCAS BROTHERS v. CUDAHY COMPANY et al.
    Court of Appeals of Tennessee, Eastern Section.
    Oct. 23, 1975.
    Certiorari Denied by Supreme Court Feb. 9, 1976.
    Miller, Martin, Hitching, Tipton, Lenihan & Waterhouse, Chattanooga, for appellant.
    Shumacker, Thompson & Dycus, Chattanooga, for John Martin Company, Inc.
    Scruggs, Seal & Alt, Chattanooga, for Lucas Brothers.
   OPINION

SANDERS, Judge.

The Defendant, Cudahy Company, has appealed from a partial summary judgment, as well as a judgment under an implied contract.

The Plaintiff, Lucas Brothers, filed suit in the Circuit Court of Hamilton County against the Defendants, Cudahy Company, John Martin Company, Inc., and Crane Supply Company.

The Defendant, Cudahy Company, is a substantial distributor of meats and food products and maintains a branch distribution plant in Chattanooga.

The Defendant, John Martin Company, Inc., is a general contractor and in 1972 Cudahy entered into a contract with Martin for the remodeling of its plant in Chattanooga.

The Plaintiff is an electrical and refrigeration contractor and Martin entered into a subcontract with" the Plaintiff to do the electrical and refrigeration portion of the contract.

The work was to be performed according to plans and specifications furnished by Cu-dahy. Part of the work to be performed by the Plaintiff was the furnishing and installation of four refrigeration units.

The Plaintiff, in its complaint, alleges that it installed four refrigeration units which were approved by Cudahy and Martin prior to installation. After the installation the Plaintiff modified the refrigeration units at the request of Cudahy and Martin. Later, however, it was advised by Defendants Cudahy and Martin that the refrigeration units were not acceptable and were not in compliance with the plans and specifications and they refused to pay for their installation.

The allegations in the complaint as to the Crane Supply Company, which manufactured the refrigeration units, have become moot since they are not a party to this appeal.

Also, certain counterclaims were filed which are not pertinent here.

The Defendant, Martin, in its answer to the complaint, made a general denial of any liability to the Plaintiff, but filed a cross complaint against Cudahy alleging that the work had been completed according to the plans and specifications, that Cudahy had approved the refrigeration units which had been installed and that Cudahy was wrongfully refusing to pay the sum of $27,542.84.

Also, Martin asserted that Cudahy was liable to it under the prime contract for any amount the Plaintiff, Lucas, was entitled to recover under the subcontract.

The Defendant, Cudahy, in its answer to both the original complaint and cross complaint, says that the work was not completed according to the plans and specifications and that it did not approve the refrigeration units which were installed. It also insists that the installation work failed to comply with the contract; that it was defective and unsuitable; and that when corrective work was undertaken it was also defective and unsuitable.

Subsequent to the filing of the pleadings the Plaintiff, Lucas, filed a motion for summary judgment against the Defendants and a motion to dismiss a counterclaim which Martin had filed against Lucas. The motion states, as pertinent here, “This motion is made on the basis of the record heretofore compiled in this case and the brief in support hereof. Plaintiff is entitled to said judgment as a matter of law because the record in this cause shows, without factual dispute, that plaintiff in all respects fulfilled its contract according to the plans, specifications, and shop drawings of the contract and the directions of the defendant Cudahy’s representative and that any problems caused by defects in the foregoing are not the legal responsibility of plaintiff. The only disputed issue to be decided by this Court is the amount of damages,

On August 2, 1974, the Court filed a memorandum opinion in which he states that the cause came on to be further heard upon motions for summary judgment filed in behalf of the Plaintiff, Lucas Brothers, and the Defendant, John Martin Company, Inc. The memorandum opinion further states that on June 24, 1974, the Court granted summary judgment for the Plaintiff, Lucas, against the Defendant, Martin, and granted partial summary judgment for Martin against the Defendant, Cudahy.

However, the record fails to show that a motion for summary judgment was ever filed by Martin.

In granting the partial summary judgment in favor of Martin against Cudahy, the Court said, “The Court reserved for later determination the claim of Lucas Brothers against Cudahy Company for matters alleged in Lucas’s alleged direct contract with Cudahy Company, including any offset which Cudahy might have for alleged poor workmanship, etc., and the Court as well reserved for later determination John Martin Company, Inc.’s cross claim against Cudahy Company with respect to the question of damages, any offsets due, etc.”

After granting the summary judgment the parties all waived a jury trial and the case proceeded to trial on the issues reserved before The Honorable H. Ted Mil-burn, Circuit Judge, without a jury.

The Court found the issues in favor of the Plaintiff, Lucas, and against Martin on the original subcontract and awarded judgment for $8,941.54.

He found the issues in favor of Plaintiff Lucas and against Defendant Cudahy for extra work and awarded judgment for $11,-377.16 and awarded a judgment in favor of Martin on its cross claim against Cudahy for $27,480.83.

The Defendant, Cudahy, has appealed and assigned error.

The Defendant’s first assignment of error is to the action of the Court in granting summary judgment.

At the time the Court granted summary judgment, he had for consideration a number of depositions, interrogatories, affidavits and exhibits. From reading the evidence before the Court, it is very convincing that a change was made in the specifications for the installation of refrigeration units different from those called for in the original plans and this change was approved by the Defendant, Cudahy.

After the refrigeration units were installed they never worked properly. The reason they didn’t work was that they were oversized for the evaporators they were supplying and probably would not have worked regardless of the quality of workmanship in their installation. However, this was disputed by the Defendant, Cudahy.

Cudahy insisted that the trouble stemmed from poor workmanship.

The Court, in its memorandum opinion on the summary judgment said: “Prior to said hearing on June 10, 1974, the Court had reviewed the entire record together with the briefs filed in behalf of the respective parties and inquired of counsel for defendant Cudahy Company whether or not there was any proof that, even had all workmanship been perfect, the refrigeration system would have functioned properly in spite of the excess capacity of the recold units installed by the plaintiff. Counsel for the defendant, Cudahy Company, responded on that occasion and again at a partial hearing on June 21, and a further hearing on June 24, 1974, that he had no such proof. Accordingly, on June 24, 1974, the Court granted summary judgment for plaintiff Lucas Brothers against defendant John Martin Company, granted partial summary judgment for John Martin Company in its cross-claim against defendant Cudahy Company, . . .”

* * * * * *

“The Court had directed counsel for the plaintiff to prepare a formal order setting out the Court’s specific findings of fact and rulings made on June 24, 1974. However, on June 25, 1974, a motion to reconsider was filed by defendant Cudahy Company with an attached affidavit by one of its counsel of record stating in effect that he had been informed by two individuals who had performed ‘corrective work’ at defendant Cudahy Company’s plant in question that ‘in their opinion, the original units as installed by plaintiff would have functioned despite the excess capacity, had said installation and connecting work been correctly performed by plaintiff.’ At the request of defendant Cudahy Company’s counsel, the Court granted a hearing on his said motion to reconsider the following day, or June 26, 1974. After hearing argument of counsel, and considering the entire record, the Court was of the opinion that the affidavit of counsel for Cudahy Company came too late and that the affidavit of counsel, rather than that of the alleged experts, was insufficient as a countervailing affidavit in view of the record established by the witnesses for all of the parties that the sole, direct and proximate cause for the failure of the recold units in question to operate satisfactorily was due to their excess BTU capacity and not due to alleged poor workmanship.”

The Court, in saying that the proof by the witnesses for all of the parties showed that the sole, direct and proximate cause of the failure of the recold units was due to their excess BTU capacity and not due to alleged poor workmanship, overlooked the testimony of Mr. Swanson, chief engineer for Cudahy. In his deposition he testified as follows:

“Q. Now I take it from your testimony this morning that it was finally determined that the recold units were oversized greatly to the condensing units.
“A. This was one of the problems, yes sir.
“Q. One of the problems?
“A. Yes, sir.
“Q. Were there other problems?
“A. Extremely poor workmanship, pipe undersizing, improper trapping of lines to run the oil to the compressors, improper insulation on the lines.”

We think the case of Costello D. Bond and Ollis J. Bond v. Dr. John A. Rogness and Cleveland Clinic for Women, Inc., decided by the Eastern Section of the Court of Appeals, correctly states the rule in this state concerning summary judgments. Judge Cooper, speaking for the court in that case, said:

“The burden of showing the absence of any genuine issue as to all the material facts rests upon the defendants in this case, they being the parties moving for summary judgment. Evers v. Buxbaum, [102 U.S.App.D.C. 334], 253 F.2d 356; Walling v. Fairmont Creamery Co. [8 Cir.], 139 F.2d 318; Moore’s Federal Practice, Vol. 6, Sec. 56.15[3],
“ ‘The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which under applicable principles of substantive law, entitle him to judgment as a matter of law.’ Moore’s Federal Practice, supra, pages 2335 et seq.
“Further, it is generally recognized that in determining whether a genuine issue on a material fact exists in a case, the party opposing the motion for summary judgment should be accorded any and all favorable inferences to be drawn from evidence set forth in depositions, affidavits, admissions and the like, on file. See McSpadden v. Mullins, [8 Cir.], 456 F.2d 428; Scott v. Dollahite, [D.C.], 54 F.R.D. 430; United Meat Co. v. RFC, [85 U.S.App.D.C. 9], 174 Fed. [F.2d] 521 [528]. See also Sherrill v. Collins, decided by the Middle Section of this court on March _, 1973, wherein it is pointed out in an opinion by Judge Shriver that:
“ ‘The rule contemplated by 56.03 (Tennessee Rules of Civil Procedure) concerning proceedings on motion for summary judgment should be construed somewhat like our Courts have consistently construed motions for directed verdicts in jury cases. That is to say, that if any reasonable doubt exists as to whether or not there are issues of fact to be determined, after examining the record, including affidavits and other data filed with the Court, the motion for a summary judgment should be denied and the parties should be given a chance to develop all of the facts before a final judgment is entered.’ ”

We think the steadfast insistence by the Defendant, Cudahy, that the failure of the equipment to properly function was the result of poor workmanship by the Plaintiff, Lucas, was a genuine issue of material fact which the Defendant was entitled to assert as a defense and it was entitled to have that issue submitted to the jury for consideration. The granting of the summary judgment deprived it of this defense.

The Defendant’s first assignment of error is affirmed.

Other assignments were made but, in view of our holding on the first assignment of error, they are pretermitted.

The judgment of the Trial Court is reversed and the case is remanded for a new trial.

The costs of this appeal are taxed to the Appellees.

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


text:
    NEWPORT HOUSING AUTHORITY, INC. v. Mrs. Eula Mae HARTSELL.
    Court of Appeals of Tennessee, Eastern Section.
    Nov. 25, 1975.
    Certiorari Denied by Supreme Court Jan. 26, 1976.

      William M. Leibrock, Newport, for appellant.
    Edward F. Hurd, Newport, for appellee.
   OPINION

SANDERS, Judge.

The Plaintiff has appealed from a jury verdict in its suit to condemn the property of the Defendant.

The Plaintiff-Appellant, Newport Housing Authority, filed suit in the Circuit Court of Cocke County to condemn a portion of the property belonging to the Defendant-Appellee, Mrs. Eula Mae Hartsell. Through inadvertence the complaint, as originally filed, stated: “Your Petitioner estimates the sum of $25,450.00 to be just compensation for the property.” The figure which the Petitioner intended to use was $14,-900.00. By subsequent order the petition was amended to reflect this to be the amount rather than $25,450.00.

The original petition was filed on April 26, 1973, and the declaration of taking was filed at the same time.

On May 5, 1973, a writ of possession was issued giving the Petitioner possession of the property.

On May 16, 1973, the Defendant filed her exceptions to the amount of $14,900.00 tendered into court by the Petitioner and demanded a jury to try the question of damages.

On June 16, 1973, an order was entered, approved by counsel for both the Plaintiff and the Defendant, dismissing the suit. The order, in substance, stated as follows:

“In this cause, came the parties in open Court by and through their attorneys, and announced to the Court that they no longer desired to contest the matter, and move the Court for permission to dismiss the action pending against them, which motion the Court was pleased to and doth allow.

“IT IS, THEREFORE, ordered and directed that the case be and the same is hereby dismissed at the cost of the petitioners. The Clerk of the Court is directed to pay to the defendant, Mrs. Eula Mae Hart-sell, the amount of $14,550.00, which amount the petitioner paid into Court upon the filing of this cause.”

On July 12, 1973, the Defendant filed a petition with the Court asking that the order of June 16 dismissing the case be set aside and the case restored to the docket and set for trial. In her petition she alleged that there had been a misunderstanding between her and the Petitioner as to certain things the Petitioner was going to do for her.

On June 8, 1974, over the objection of the Petitioner, the Court entered an order setting aside the order of dismissal and restoring the case to the trial docket.

The case was tried before a jury with The Honorable George R. Shepherd, Circuit Judge, presiding.

The jury returned a verdict of $30,000.00 for the value of the property taken and $5,000.00 as incidental damages.

The Plaintiff filed a motion for a new trial, insisting, among other things, that the verdict of the jury was excessive.

The Court granted a remittitur of $1,500.00 and overruled the motion for a new trial.

The Plaintiff has appealed and assigned error.

Plaintiff’s first assignment of error is: “The verdict of the jury in awarding the defendant $35,000.00 was contrary to the law evidenced in the case.”

Under our rules this assignment of error is too general and fails to specify the law and evidence brought into question by it. Rogers v. Murfreesboro Housing Authority, 51 Tenn.App. 163, 365 S.W.2d 441.

Plaintiff’s second assignment of error is: “The Trial Court committed reversible error in failing to grant a new trial in the light of the fact that Edward F. Hurd, attorney for the defendant, stated to the jury and in the presence of the jury that an apprasil of $25,450.00 had been made by witness for the plaintiff, concerning the property involved in the cause. Said statement was errornous, prejudicial and created bias in the minds of the jury.”

An examination of the record reveals the following colloquy on this point:

“Q. Mr. Collins, was this property at one time appraised for $25,450.00?
“MR. LEIBROCK: Your Honor, now I object to that.
“COURT: Well, I sustain the objection about was it appraised at that. Now, if he appraised it at that I’ll let you ask it.
“Q. Did you appraise it at $25,450.00?
“A. No sir, I did not.
“MR. LEIBROCK: Your Honor, I’m going to object to this and I ask the Court to allow me to read the Motion to Amend an Order, which is part of the pleadings.
“COURT: I’m going to sustain your objection to this testimony with reference to the question.
“MR. LEIBROCK: It is simply I made a typographical error on one piece of property and it was corrected with a motion and order and he knows that.
“COURT: I’ll sustain the objection.
“MR. HURD: I just have a right to find out if it has ever been appraised at that figure and that’s what I’m trying to do by him.”

We think it was highly improper for Defendant’s counsel to inject a figure of $25,-450.00 in this record when he knew that figure was originally put into pleadings through inadvertence. We put no credence in counsel’s statement that he wanted to find out if the witness had appraised the property at this figure. We would be less than naive if we failed to recognize it as a tactic to create an erroneous impression in the minds of the jury. We would not hesitate to reverse and remand for misconduct of counsel except the granting of a mistrial is not a matter of meting out punishment to the Defendant for his misconduct that is to be considered and the state is interested in the repose of litigation. Also, we feel that any damage the Plaintiff’s case may have suffered by the improper conduct of counsel was cured by Plaintiff’s counsel’s subsequent explanation.

At the conclusion of the trial Plaintiff’s counsel made the following statement to the jury: “Gentlemen of the jury, Mr. Hurd asked — not this appraiser, but the other one, if he had ever appraised this property at some $24,000-something. When I prepared this law-suit I had several to prepare and I made a list of the names of the people and the appraised values that we put on it. I made a mistake, I don’t know whose property it was, but on somebody’s property, not this property, was appraised at $24,000.00, I don’t know whose property it was now, but anyway the lawyer on the other side caught the thing and said ‘You say you appraised it at $14,000 — some figure, and you’ve got a $24,000.00 figure here.’ I then amended the complaint and changed it to what it was appraised at. It was simply my fault and my secretary’s fault that that figure got in here and Mr. Hurd asked one of the men about it. Now, it is in the pleadings, but he didn’t go on to say that here was a motion and order to amend where Leibrock made a mistake with his typewriter. Now, that’s what it boils down to. I wanted to clear that up.”

We think the explanation was sufficient to remove any doubt from the jury’s mind as to where the figure of $25,450.00 came from.

Plaintiff’s second assignment of error is overruled.

Plaintiff’s third assignment of error is: “The Trial Court committed reversible error in granting the petition of the defendant, Eula Mae Hartsell, to allow her to restore this case to the trial docket for trial after the same had been dismissed and completely compromised and settled by order of this Court and agreement of the parties thereto and present counsel. Said motion was allowed over the objection of the plaintiff.”

It is a well-settled rule in this state that any order or judgment of the Circuit Court is subject to the control of the trial judge and may be modified or set aside by him at any time before becoming final. Such orders or judgments do not become final until 30 days after entry. Rules of Civil Procedure Nos. 59.03, 59.04. See Arkansas Fuel Oil Co. v. Tanner, 195 Tenn. 553, 260 S.W.2d 286, and Benson v. Fowler, 43 Tenn.App. 147, 306 S.W.2d 49.

The motion to set aside the order of dismissal and restore the case to the trial docket was made within the 30-day period and there is nothing in the record to show that the term of court had ended prior to the filing of the motion.

In the case of Arkansas Fuel Oil Co. v. Tanner, supra, our Supreme Court, speaking through Chief Justice Neil, said:

“It is not disputed but that any order or judgment of the Circuit Court is subject to the control of the trial judge, and may be modified and set aside by him at any time prior to its becoming final. Any fact or circumstance which may have influenced the trial judge in pronouncing judgment, unless preserved in a proper bill of exceptions, cannot be considered on appeal or on petition for writ of error.”

The fact that the Court did not act upon the motion to set aside the order of dismissal within 30 days is not controlling. As was said in the case of Payne v. Fire & Marine Ins. Co., 173 Tenn. 659, 662, 122 S.W.2d 431, 432, “The courts are without power to set-aside judgments after the expiration of [30] days. But if the motion is properly entered within the [30] days on the motion docket, the Court may consider it after [30] days have expired.”

Plaintiff’s third assignment of error is overruled.

Plaintiff’s fourth assignment of error is: “The Trial Court committed reversible error in failing to set aside the judgment of the jury because the judgment was so totally excessive as to shock the conscience of the Court and evidenced unaccountable prejudice, passion or caprice on the part of the jury.”

Plaintiff’s petition called for the taking in fee simple of 7,420 square feet of land and a construction easement over 1,350 square feet for the construction of side slopes along the relocation of Cosby Road. The Defendant had approximately 13,465 square feet of land left after the taking. There was a three-bedroom frame house located on the portion that was taken. There had also been an addition to the house in which the Defendant operated a beauty parlor.

The Defendant testified that she considered the house and the land taken in fee to be worth $30,000.00. She considered the portion over which the construction easement was taken to be worth $8,000.00 to $10,000.00 and that there was $5,000.00 incidental damages to the remaining property.

Mr. Wilbur Lindsey, a building contractor, testified that he considered the residence and beauty parlor to have a value of $20,000.00. He did not place any value on the land nor did he testify concerning incidental damages.

Mr. Bob Kilpatrick, a real estate broker who testified in behalf of the Defendant, fixed a value of $35,000.00 on the entire tract of land and improvements and $30,-000.00 as the value of the land and improvements taken. He fixed a value of $5,000.00 on the remaining portion of the property after the taking.

Mr. Scott Collins testified for the Housing Authority and fixed the value on the land and improvements taken at $14,350.00 and Mr. William Curtis fixed the value at $14,200.00. Neither of these witnesses made any allowance for incidental damages. The record indicates that they both considered there were compensating benefits to offset resulting incidental damages.

The proof in the case at bar is quite analogous to the proof in the case of Lawson v. Wilkinson, 60 Tenn.App. 406, 447 S.W.2d 369. In that case one of the property owners had fixed the value on the property taken at a figure higher than the other witnesses and the court held that to be material evidence upon which the jury could base its verdict and it could not be disturbed on appeal. In sustaining the jury verdict, the court said:

“With respect to Assignment of Error No. II we are of the opinion that there was material evidence to support the verdict of the jury. One of the Defendants, George Melton, was properly permitted to testify as to the value of the three tracts of land and it was his opinion that they had a value of $15,000.00.
“It is also true that there was material evidence to support a verdict of a less amount. This presented a question for the jury to decide and the jury apparently took the Defendant’s evaluation of their property. It is not for us to weigh the evidence. Schenk v. Gwaltney, 43 Tenn.App. 459, 309 S.W.2d 424; Young v. Spencer, 44 Tenn.App. 83, 312 S.W.2d 479. If there is any material evidence to support a jury verdict the Court of Appeals is required to uphold the verdict and the judgment thereon. Callahan v. Middleton, 41 Tenn.App. 21, 292 S.W.2d 501. Where supported by material evidence a jury verdict, approved by the trial judge, is conclusive as to the facts. Hime v. Sullivan, 188 Tenn. 605, 221 S.W.2d 893; Simpkins v. Manners, 34 Tenn.App. 244, 236 S.W.2d 984. Where there is conflicting evidence, a jury verdict approved by the trial judge will not be disturbed by the Court of Appeals. Berryhill v. Mutual Benefit, etc., Ass’n, 37 Tenn.App. 303, 262 S.W.2d 878.
“This court is not required nor permitted to weigh the evidence where there has been a trial by jury. Upon the authorities above cited we can only determine whether or not there was material evidence to support the verdict of the jury. As above stated, we are of the opinion that there was material evidence to support the verdict of the jury.”

The law, as above stated with reference to our review of jury verdicts, is as it should be. Our Constitution provides for a right of trial by jury and it is axiomatic that should our appellate court substitute its judgment for that of the jury, the litigants would be deprived of jury verdicts.

However, the facts in the case at bar point up the need for a change in the rules of evidence pertaining to the qualifications of a witness who is permitted to give an opinion as to the value of real estate involved in litigation. Until recent years there were only a limited few people trained in the science of real estate appraising, but it has now reached a professional status that should be recognized by the courts. The American Institute of Real Estate Appraisers has developed real estate appraising to almost an exact science.

Mr. Scott Collins, who appraised the property for the Housing Authority, has a degree in real estate from the University of Tennessee. He is a senior member of the American Institute of Real Estate Appraisers and American Society of Appraisers and the Society for Real Estate Appraisers and a member of the National. Association of Real Estate Boards.

Mr. William Curtis, who appraised the property, has a B.S. degree from the University of Tennessee in real estate. He has completed the American Institute of Real Estate Appraisers courses. He is a member of the American Institute of Real Estate Appraisers. He is a part-time faculty member at the University of Tennessee where he teaches real estate appraising, real estate and property development.

These two appraisers, without conferring with each other on their appraisals, were within $150.00 of each other as to the value of this property.

Something is wrong with our rules of evidence when a verdict can be predicated on the opinion of a person completely ignorant of real estate values and the opinions of skilled, knowledgable, professional experts ignored. It is likened to taking the opinion of a midwife over that of an obstetrician.

We are not pleased with our position in having to overrule the Plaintiffs last assignment of error, as we are not satisfied that justice has been done. We have seen a number of cases in this court where we think the ends of justice would have been more nearly met had only qualified expert witnesses been permitted to express an opinion as to real estate values. Being only an intermediate appellate court, we are not at liberty to depart from standards set by precedent cases handed down by or approved by our Supreme Court. But until such time as our ancient rules of opinion evidence relating to real estate values have been modernized these injustices will continue.

We are compelled, as of now, to overrule the Plaintiff’s fourth assignment of error.

The judgment of the Trial Court is affirmed and the cost of this appeal is taxed to the Appellant.

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


author: O’BRIEN, Judge.

text:
    Kenneth S. GEORGE, Petitioner, v. STATE of Tennessee, Respondent.
    Court of Criminal Appeals of Tennessee.
    Aug. 4, 1975.
    Certiorari Denied by Supreme Court Dec. 1, 1975.

      William S. Fleming, Columbia, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., W. Henry Haile, Asst. Atty. Gen., Nashville, for respondent.
   OPINION

O’BRIEN, Judge.

This is an appeal from dismissal of a post-conviction petition after an evidentiary hearing in the Criminal Court of Giles County.

According to the information to be gleaned from this record it appears this defendant was charged with the offense of armed robbery in Giles County, Tennessee, and arrested on November 28, 1969. After a preliminary hearing in the General Sessions Court, defendant was bound over to the Grand Jury and an indictment was returned against him for the offense.

On June 1st, 1970, represented by appointed counsel, defendant appeared before the Hon. W. A. Harwell and entered a plea of guilty to the offense of armed robbery. He received a minimum sentence of 10 years. Armed robbery was a capital offense at the time. From defendant’s testimony it appears that at the time of his original guilty plea in 1970, he was on parole from the state of Illinois. There was also a charge of armed robbery pending against him in an adjacent county which was placed on the retired docket in conjunction with the plea bargain.

Subsequently, defendant filed a petition for post-conviction relief in the Circuit Court of Giles County. Counsel was appointed and on April 26, 1972, Judge Har-well set aside the guilty plea, reinstating the case on the docket. A portion of the order setting aside the original guilty plea is quoted in the record as follows:

“This Court does not want anyone incarcerated under the apprehension of having to face other charges and for this reason alone this relief is granted and the case is set for a new trial in Giles County.”

On June 9th, 1972, defendant was released from custody and allowed to post bond. About the middle of July, 1972, he was charged, arrested, and bound over on a charge of grand larceny. He was indicted at the October term of the Grand Jury.

On November 20th, 1972, represented by court appointed counsel, defendant entered a guilty plea to the original offense of armed robbery with which he had been charged, before Judge Joe M. Ingram, and again received the minimum sentence of ten years. In lieu of the pending grand larceny charge he also entered a plea of guilty to a charge of receiving stolen property in the value of less than $100.00 with the penalty fixed at not less than one year nor more than five years in the State Penitentiary, the sentence to run concurrently. The case of armed robbery pending in Lawrence County was again placed on the retired list.

On February 7th, 1974, another petition for post-conviction relief filed by the defendant to set aside the conviction for receiving stolen property came on to be heard before Judge Jerry Scott in part 2 of the Circuit Court of Giles County. The petition was sustained. The conviction was vacated and declared null and void with the direction that the same should be expunged from petitioner’s record.

On May 24th, 1974, the petition was filed which we now have under consideration. The petition alleges eight grounds for relief. The only one of these allegations which states an abridgment of a constitutional right cognizable under the provisions of the Post-Conviction Procedure Act is the charge that his guilty plea was induced through continued emphasized statements of other pending charges against him during the plea bargaining interview of November 8th, 1972, and that because of his mental state during the plea bargaining session he was entitled to an evidentiary hearing with a finding of fact on the volun-tariness of his guilty plea.

Assignments of error here are as follows:

(1) Defendant received erroneous legal advice during the plea bargaining session on November 8th, 1972.
(2) Defendant’s physical and mental condition were such that his plea was not understandably and voluntarily made.
(3) The trial court did not make a written finding of facts and conclusions of law as required by T.C.A. Sec. 40-3818.

Defendant bases these allegations on the fact that he was allowed to plead guilty to a charge of receiving and concealing stolen property in lieu of the charge of grand larceny pending against him, and the receiving stolen property charge was later set aside and declared null and void. It is the theory of defendant that if the sentence on receiving stolen property was invalid because it is not a lesser included offense of grand larceny, that the entire plea bargain made by him on all three cases was equally invalid and therefore the advice he received from counsel was erroneous. This appears to be his primary complaint against his counsel.

The evidence introduced at the evidentia-ry hearing regarding defendant’s physical and mental condition was that on November 8th, 1972, defendant was afforded a private interview with Mrs. Joyce Laben, an Associate Professor of Psychiatric Nursing at Vanderbilt Hospital who was also a consultant with the Department of Mental Health. This meeting was attended by defendant’s appointed counsel as well as an attorney who worked with Mrs. Laben. Mrs. Laben testified she was also conducting group therapy at a half-way house for ex-residents of the prisons in the state and as a result was acquainted with defendant. At the time of the interview she noted a marked physical deterioration in him, but he seemed acutely aware of the law applicable to his legal situation. Several alternatives were discussed at the meeting, the ultimate choice among which was left for defendant’s decision. She was of the opinion his primary interest was getting out of the County Jail and returning to the penitentiary as quickly as possible where he could get better care. The witness said that after his return to the State Penitentiary his physical appearance improved.

Subsequently, on the same day defendant met in his attorney’s office with a representative of the attorney general’s office and his appointed counsel where the final agreement was worked out. Defendant did not appear in court to submit the guilty plea until November 20th, 1972. The assistant district attorney who represented the state at the plea bargaining session, and the presentation of the matter in court, testified that defendant appeared concerned over the fact that he had other charges pending against him in another jurisdiction in another state and was eager to work out a situation by which he would be required to serve the least possible amount of time in Tennessee. He stated that he particularly did not say anything to the effect that defendant might receive maximum punishment on the charge in Lawrence County if he did not plead guilty in Giles County because that had been one of the main bases for setting aside the prior guilty plea. Defendant appeared to be in full command of his mental faculties, was completely aware of his rights, and participated in the discussion. He had observed the competency of defendant’s appointed counsel over a period of eight years at the Bar and considered him a highly competent trial attorney, well-skilled in all phases of the law, and particularly skilled in criminal proceedings. Defendant participated fully in reaching the agreement.

Defendant himself testified that some months prior to the submission of his guilty pleas he had experienced a shortness of breath and weakness accompanied by pains in his chest which resulted in his being removed to the hospital from the County Jail. He stayed for a few days in an intensive care unit due to a suspected coronary problem. He says on the date his guilty plea was submitted he did not think his physical health was bad. He had lost sixteen or seventeen pounds in weight while he was out of prison on bond. During the discussions at the plea bargaining session, he says the same situation occurred which he experienced prior to the submission of his first guilty plea, that is, the State’s representative continued to discuss all of the charges pending against him, and unless he accepted the offer they made to him in Giles County they would put him to trial on all of the outstanding charges in that county and elsewhere. It was made plain the State would only accept a package deal. He felt that he was coerced into submitting a guilty plea because the State gave him no choice other than to enter guilty pleas in Giles County, the alternative being that he would have to stand trial for all offenses pending both there and in Lawrence County. Defendant admitted he had signed a plea of guilty in open court and stated to the court in the presence of his counsel that he was fully informed of his rights and had advised his counsel he voluntarily chose to enter a guilty plea. He was fully informed of the minimum and maximum sentences for the offenses for which he was charged.

We have reviewed this record repeatedly and it is plain that defendant has failed to carry the burden imposed on him to prove the charge that he received erroneous legal advice which was prejudicial to his rights in any aspect of the plea bargaining or the submission of his guilty pleas. It is equally plain that defendant’s concurrence in the plea bargaining agreement was brought about by his apprehension of trial on the armed robbery charge pending against him in Lawrence County. Of course, a guilty plea is not rendered involuntary by the fact that an accused is faced with election between a possible greater sentence on a plea of not guilty and a lesser sentence upon a guilty plea, or by fear that he may otherwise be prosecuted for another offense. Beaty v. Neil, 4 Tenn.Cr.App. 86, 467 S.W.2d 844; Bratton v. State, Tenn.Cr.App., 477 S.W.2d 754; Rudd v. State, Tenn.Cr.App., 497 S.W.2d 746; Waggoner v. State, Tenn.Cr.App., 512 S.W.2d 627; Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.

The failure of the trial judge to state his findings of fact and conclusions of law in the order of dismissal does not constitute an abridgment of any constitutional right which would render the conviction or the sentence of defendant void or voidable. The primary intent of this statutory mandate is to facilitate the review of the trial proceedings, and while we find the record in this case to be in a deplorable condition because of the failure to include the exhibits introduced at the post-conviction hearing, and the transcript of the guilty plea proceedings, as well as a finding of fact with conclusions of law by the trial judge, the issues raised have required a concentrated study of the trial record of the evi-dentiary hearing. All of the evidence introduced at the hearing was on behalf of defendant and the State offered no contradictory proof. It is obvious that this defendant is a person of some considerable experience in legal proceedings. By his first post-conviction petition in these cases he had the judgement of conviction on his guilty plea to armed robbery set aside for the same reasons which he now says entitles him to have his second guilty plea set aside. It seems inconceivable that a mature man, who by the testimony of his own witnesses was acutely aware of the law applicable to his legal situation, would submit a second agreement to the court for approval for the same offense unless he was aware of the penalties to be assessed and freely, voluntarily, and knowledgeably entered into that agreement. Defendant had the benefit of having the armed robbery charge against him in Lawrence County placed on a retired docket. While it .is true that this case is still subject to further prosecution, State ex rel. Lewis v. State, 1 Tenn.Cr.App. 535, 447 S.W.2d 42, he had the advantage of what is most likely to be the final disposition of that case by virtue of his plea bargain. He has also disposed of the grand larceny charge pending against him, although it is possible that it too may be subject to fmo-ther prosecution since defendant had the receiving stolen property charge declared null and void by his own volition. It seems apparent that the incentive for the guilty plea, which we find was voluntary, was the disposition of all the charges then pending against him.

This has been an interesting case and we commend appointed counsel for his very able and competent representation. We find no justification for defendant’s complaint and the judgment of the trial court is affirmed.

GALBREATH and DUNCAN, JJ., concur.


author: DUNCAN, Judge.

text:
    Willis Lewis JONES, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
    Court of Criminal Appeals of Tennessee.
    Aug. 26, 1975.
    Certiorari Denied by Supreme Court Dec. 5, 1975.

      Robert E. Lee, Lebanon, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., Nashville, Baxter Key, Jr., Dist. Atty. Gen., Carthage, John C. Knowles, Asst. Dist. Atty. Gen., Sparta, Tom P. Thompson, Jr., Asst. Dist. Atty. Gen., Hartsville, for defendant in error.
   OPINION

DUNCAN, Judge.

The defendant was convicted in the Wilson County Criminal Court on August 16, 1973, of second degree burglary in one case (No. 1838A), and of grand larceny in another case (No. 1838B), receiving penitentiary sentences of not less than three (3) nor more than fifteen (15) years, and not less than three (3) nor more than ten (10) years, respectively, the sentences to be served consecutively.

The defendant has duly perfected his appeal to this Court and makes two assignments of error to the effect that the court erred in overruling his motion to sever the two indictments for trial, and that the court should have granted his motion for a directed verdict of not guilty made at the conclusion of the state’s evidence.

It is necessary to review the evidence in order to answer both of these assignments.

Fred Troop and his wife, Betty Troop, were living together in their home in Wilson County, Tennessee, on September 11, 1972. On that date, while the Troops were away from home, their home was burglarized and taken therefrom were a shotgun, a rifle, an electric guitar, an organ, an amplifier, and a set of car keys to a 1971 Oldsmobile Vista Cruiser. The Oldsmobile was parked in the driveway, and it was also stolen on the same date.

Frank Evetts, an agent for the T. B. I., was looking for the defendant in connection with another case, and found him coming towards the defendant’s ex-wife’s apartment. The defendant was wearing a “long wig.” Agent Evetts then took the defendant into custody, advised him of his constitutional rights, and proceeded to question him about the other offense. Agent Evetts was not aware of the Troop burglary at that time. As the defendant was being booked on the other charge, his personal belongings were laid out on a desk, which belongings included a set of car keys. Upon inquiry as to where he got the keys, the defendant replied:

“Well, I will tell you, I broke into Mr. Fred Troop’s home. I got the keys off of the dresser and stole the automobile.”

The defendant admitted also that he stole the two guns, an electric organ, a guitar and an amplifier. The defendant’s admissions to Agent Evetts were corroborated by Sheriff Cecil Bryan.

The defendant accompanied Agent Ev-etts and Sheriff Bryan to where the car was parked. The personal property mentioned above was still in the car. The car keys which had been in the defendant’s possession when he was apprehended were used to start the Oldsmobile so that it could be driven back to the jail. The defendant told the officers it was his intention to get away and leave the state. Mr. Troop went to the jail and identified all of the stolen property, including the Oldsmobile belonging to his wife. When Mr. Troop returned to his home, he found the back door open and a kitchen window prized open.

The trial judge did not abuse his discretion in consolidating these cases for trial. The charges contained in these indictments are so closely related that the proof on each charge would, by necessity, be admissible in evidence on the trial of the other charge and vice-versa. The theft of the automobile was made possible by the burglary of the house, at which time the automobile keys were stolen. The theft of the automobile followed immediately after the burglary.

In Epstein v. State, 211 Tenn. 633, 366 S.W.2d 914 (1963), the Supreme Court said:

“The rule of reason would be that if the facts out of which the two indictments grew are so closely interlocked and related that it would be necessary to introduce most of them in either case then clearly the two transactions should be tried together.”

In Hardin v. State, 210 Tenn. 116, 355 S.W.2d 105 (1962), the court said:

“It would be the grossest folly to demand a separate trial under each indictment where they both grow out of an identical situation.”

For the same propositions, see also State ex rel. Gann v. Henderson, 221 Tenn. 209, 425 S.W.2d 616 (1968), and Hayes v. State, 4 Tenn.Cr.App. 360, 470 S.W.2d 950 (1971), and Withers v. State, Tenn.Cr.App., 523 S.W.2d 364 (1975).

The case of Burum v. State, 1 Tenn.Cr.App. 508, 445 S.W.2d 946 (1969), cited by the defendant in his brief, presents a completely different situation on its facts. Contrary to the facts in the present case, in the Burum case the two indictments charged the defendant with “wholly separate and unconnected and unrelated felonies.”

Equally unmeritorious is the defendant’s insistence that the trial court should have directed a verdict of not guilty at the conclusion of the state’s evidence.

The defendant complains under this assignment that the owners of the property failed to properly identify same, specifically contending that proof of title to the subject Oldsmobile should have been proved by the certificate of title.

The proof showed that Mr. and Mrs. Troop’s home was burglarized. Mr. Troop stated that his wife owned the subject Oldsmobile. Mrs. Troop testified that she was the owner of the vehicle. The proof showed Mr. Troop owned the other items of personal property found in the Oldsmobile.

We are satisfied that the Oldsmobile, stolen by the defendant, was owned by Mrs. Troop, and it was not required that the certificate of title be exhibited. Moreover, proof of ownership is not even essential in “Larceny.” Evidence of possession is ordinarily sufficient proof of ownership. Campbell v. State, 2 Tenn.Cr.App. 39, 450 S.W.2d 795 (1970).

T.C.A. § 40-2529 requires the trial judge in a criminal case to direct the jury to acquit the defendant if at the close of the prosecution’s evidence or at the close of all the evidence “the court is of the opinion that the evidence is insufficient to warrant a conviction.”

The rule for determining a motion for a directed verdict requires the trial judge and the reviewing court on appeal to look at all of the evidence, to take the strongest legitimate view of it in favor of the opponent of the motion, and to allow all reasonable inferences from it in his favor; to discard all countervailing evidence, and if then, there is any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied. Rambo v. State, 4 Tenn.Cr.App. 466, 472 S.W.2d 911 (1971); Hill v. State, 4 Tenn.Cr.App. 325, 470 S.W.2d 853 (1971); Ridley v. Spence, 61 Tenn.App. 571, 456 S.W.2d 846 (1970).

Further, this Court has said that “A party is not entitled to a directed verdict at the conclusion of the adverse party’s proof as a matter of right. Such a motion addresses itself to the sound discretion of the trial court.” Shanklin v. State, Tenn.Cr.App., 491 S.W.2d 97 (1972). See also McDonald v. State, Tenn.Cr.App., 477 S.W.2d 759 (1971).

And, whenever the evidence does not preponderate against the verdict of guilt, there is obviously ample evidence to support the verdict and the trial judge should not have directed a verdict of acquittal. Taylor v. State, 2 Tenn.Cr.App. 459, 455 S.W.2d 168 (1970).

The proof in these cases, as set forth heretofore, showing the defendant’s guilt, is compelling. The defendant admitted the commission of the offenses, and such was corroborated by his taking the officers to the location where the automobile and the other stolen property were found.

The trial court was correct in denying a directed verdict of not guilty in these cases. The facts presented a jury question, and it would have been an unwarranted assumption of authority for the trial judge to have directed a verdict of not guilty. Rambo v. State, supra.

The evidence does not preponderate against the verdict of the jury. Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768 (1967).

The assignments of error are overruled, and the judgments are affirmed.

WALKER, P. J., and RUSSELL, J., concur.