author: HARBISON, Justice.

text:
    Juanita PARKER, Plaintiff-Appellee, v. RYDER TRUCK LINES, INC., Defendant-Appellant.
    Supreme Court of Tennessee.
    Dec. 27, 1979.
    John E. .McManus, Owens, Moore & McManus, Memphis, for plaintiff-appellee.
    Joel Porter, Burch, Porter & Johnson, Memphis, for defendant-appellant.
   OPINION

HARBISON, Justice.

In this workmen’s compensation case the employer appeals from an award of death benefits made to the widow of a deceased employee. The Chancellor found that the death of the employee on April 10, 1976, from a myocardial infarction was causally related to his employment as an over-the-road truck driver for appellant. Although the factual issues presented are extremely close, we are of the opinion that there was sufficient evidence, both lay and medical, to support the conclusions reached by the Chancellor. Accordingly his decision is affirmed.

Decedent, Frank Edward Parker, Jr., was forty years of age at the time of his death. He had been a truck driver for more than twenty years and had been employed by appellant since 1972 or 1973.

The medical history of decedent reflects that for about three years he had experienced chest pain, particularly after lying down at night. He was hospitalized in Atlanta in 1973 and was advised at that time that he had a hiatal hernia. According to later medical records, he was advised that his electrocardiogram at that time was normal. During the year prior to his death he had a marked increase in weight, which he attributed to eating more than usual and to drinking additional amounts of beer. He had been tense and nervous for some time prior to his death, and in the weeks preceding his fatal heart attack he had experienced after exertion a discomfort in his chest consisting of a deep aching, or aching and pressure, without radiation into other parts of the body.

Decedent had been off from work for about three days prior to April 4, 1976. At about 12:30 p. m. on that date he left the Memphis terminal of his employer driving a large tractor-trailer unit. On the day of his departure, according to his wife, decedent was in apparent good health and felt well.

Decedent drove to Opelousas, Louisiana, arriving at about 11:45 p. m. He and a fellow truck driver, Kenneth L. Montgomery, spent the night at a motel. Mr. Montgomery testified that decedent complained of being unwell and was obviously sick when they went to the motel. He heard decedent tell the Ryder dispatcher on the next morning that he was sick and wished to return home. Montgomery testified, however, that the dispatcher persuaded the decedent to continue on his assigned trip from Opelousas to Bonifay, Florida, a distance of some 427 miles usually requiring a driving time of about eight and one-half hours. Mr. Montgomery testified that decedent was operating an “18 wheeler” tractor-trailer unit and that the driver of such a vehicle would usually be fatigued both physically and mentally after operating it for eight hours or more.

According to appellant’s records, decedent did drive to his destination on Monday, April 5, making the trip in approximately nine hours. On Tuesday, April 6, 1976 he left Bonifay at approximately 10 a. m. and arrived in Jackson, Mississippi at approximately 5 p. m. He then apparently rested in Jackson until 1:30 a. m. and returned to the Memphis terminal, arriving at about 6 a. m. on April 7.

Appellant’s terminal manager in Jackson, Mississippi, Mr. Elford W. Davis, recalled that when decedent arrived in Jacks on he was unwell. He testified:

“Frank, when he arrived, said that he wasn’t feeling good, that he thought he had had the flu or was taking the flu and that he was feeling pretty bad, and you could tell, it was obvious that he was, you know, that he wasn’t normal.”

The witness took the decedent to a motel and advised him not to try to drive on to Memphis if he did not feel able to do so. He left his personal phone number with the decedent and told him to call the witness if he needed assistance. At that time decedent was not complaining of chest pain, insofar as Mr. Davis remembered.

When decedent reached his home shortly after arrival at the Memphis terminal on Wednesday, April 7,1976, his wife said that he was obviously very sick and was complaining of severe chest pain. She said that he had made about six calls to her while he was on the trip. Although she was not permitted to state the substance of these conversations, she said that it was most unusual for him to call so frequently. As soon as possible after his arrival at home she took him to Dr. Leon Cornelius, the family physician, who prescribed medication for relief of pain. Later, in the afternoon of April 7, decedent began to experience severe chest pain and Mrs. Parker again called Dr. Cornelius. She was told to give further medication and to bring decedent back to the doctor’s office on the next morning. When she did so, Dr. Cornelius examined decedent and immediately referred him to Dr. Joseph A. Sullivan, a specialist in internal medicine. Dr. Sullivan examined decedent in the emergency room at the Methodist Hospital and immediately admitted him into the coronary care unit with a provisional diagnosis of myocardial infarction.

Extensive diagnostic tests and studies failed to document the presence of a myocardial infarction, and on Saturday, April 10, decedent was moved out of the coronary care unit, into a private room. On that morning, however, he had an additional episode of chest pain. He did not wish to return to the coronary care unit. During the afternoon while talking to his wife on the telephone decedent suddenly collapsed. He died a short.time later. Dr. Sullivan was of the opinion that the decedent suffered from arteriosclerotic heart disease, and it was his opinion that the physical and mental exertion involved in decedent’s driving for appellant from Memphis to Florida and return may have aggravated or made more severe his pre-existing heart condition. Dr. Sullivan said that the final myocardial infarction which immediately caused death probably did not occur until April 10, although he could not be certain of this. It was his opinion that the pain which decedent had been experiencing prior to admission was angina pectoris, and he suspected that the severe episode of pain which the decedent had experienced shortly prior to admission might have represented a myocardial infarction. Qn cross-examination he testified that he felt that the work which decedent had performed, with its resulting mental and physical strain, might have been an aggravating factor to the arteriosclerotic heart disease. He testified:

“I don’t feel on what evidence we have right now there is a definite causal relationship, say, between physical labor and the production of arteriosclerotic-vascular disease. I do think there can be a precipitating or aggravating type situation.”

Further, Dr. Sullivan testified that he felt that heavy emotional stress, fatigue or physical labor might produce an acute myocardial infarction in an individual who had arteriosclerosis, and he felt that the decedent’s work could have been a precipitating factor in the pain which the decedent was experiencing on April 7. He reiterated that he could not state precisely the moment his “heart attack” occurred. He said:

“Presumably he could have started the heart attack with a small amount of damage during that two-hour period prior to coming to the hospital and then completed the heart attack on April 10th. I cannot prove that.”

On redirect examination Dr. Sullivan testified that while he could not definitely state that the decedent’s work could have been a substantial factor in contributing to the final attack on April 10, nevertheless:

“My own feeling is that heavy physical exertion and emotional stress do aggravate to the point of perhaps helping to precipitate but, you know, I can’t give you a specific date.”

He further stated that he suspected that decedent’s work “enhanced” decedent’s preexisting condition and that it “very likely had some enhancing effect . . . .”

The employer offered the testimony of Dr. Otis S. Warr III, a specialist in cardiology. Dr. Warr did not see or treat the decedent. After a complete study of the medical and hospital records and reports, however, Dr. Warr was of the opinion that the decedent’s fatal heart attack was not in any way related to, caused by or precipitated by his employment. It was his opinion that the decedent’s fatal heart attack occurred after he had been removed from the coronary care unit on April 10 and that it resulted from the natural progression of pre-existing disease. He further testified that according to authoritative medical studies, truck driving is classified as light to moderate, as distinguished from heavy, physical labor.

On cross-examination, in response to a hypothetical question which stressed the decedent’s complaints of chest pain on April 7, Dr. Warr testified that in his opinion the decedent’s truck driving “could have” contributed to his fatal heart attack, although “I do not think it’s very likely.”

On redirect examination he stated positively that in his opinion the activity in which decedent had engaged at work did not cause his heart attack.

In an oral opinion, after evaluating all of the evidence, the trial judge concluded that the deceased apparently had a gradual onset, rather than a sudden massive heart attack. He found, however, that the decedent was ill and suffering from pain during his last trip and that his pain became progressively more severe.

The trial judge, faced with conflicting medical testimony, concluded to accept that of the examining and treating physician, rather than of the independent expert, and concluded that a causal relationship did exist between the exertion and strain of decedent’s work and his ultimate death from heart disease.

As stated at the outset, the issues presented in this case are extremely close. There was abundant material evidence from which the trial court could have reached the opposite conclusion. On the other hand it is apparent that the deceased did become ill while at work during his last dispatched trip for appellant. His illness was first manifested on the night of Sunday, April 4. It persisted, and on the evening of April 6 he was still feeling unwell. When he arrived at home early on the morning of April 7, he was in severe pain. His wife, who had been concerned about his frequent telephone calls, immediately sought medical aid. Thereafter he experienced intermittent but progressively more severe pain until admitted to the emergency room on the morning of April 8 with a provisional diagnosis of myocardial infarction.

Both parties have discussed extensively in their briefs reported decisions in this state dealing with disability or death resulting from heart disease.

Appellant has cited and relies upon Travelers Insurance Co. v. Googe, 217 Tenn. 272, 397 S.W.2d 368 (1965). In that case, however, the Court found that on only one occasion had the deceased experienced chest pain or other symptoms of heart disease while at work and on that occasion there was no evidence of what labor, if any, he was doing. All other episodes of pain had occurred while he was in his apartment with his family. The Court found as a fact that the heart attack from which the employee died was not brought on in any way by the duties of his employment. The same is true of Hagewood v. E. I. DuPont, 206 Tenn. 239, 332 S.W.2d 660 (1960).

In Chapman v. Aetna Casualty & Surety Co., 221 Tenn. 376, 426 S.W.2d 760 (1967), also cited by appellant, the evidence was found insufficient to demonstrate a causal connection between decedent’s notification of discharge from employment and a fatal heart attack the following day. And in Travelers Insurance Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611 (1968), the death of a labor union official while walking on the street was held unrelated to his official duties in attending a union convention.

In the case of Walker’s Stores v. Livesay, 215 Tenn. 306, 385 S.W.2d 745 (1965), the fatal attack occurred shortly after decedent returned from a lunch break, during which he had mowed part of the lawn at his residence. There, as here, medical testimony indicated that his employment activities “could or might” have contributed to the fatal onset, but the Court found no “other evidence from which the trial judge might reasonably infer the injury (fatal heart attack) did result from the employment . . . .” 215 Tenn. at 312, 385 S.W.2d at 747.

Appellee cites a number of other cases in which recovery has been allowed. E. g., R. E. Butts Co. v. Powell, 225 Tenn. 119, 463 S.W.2d 707 (1971), where a truck driver experienced chest pain while securing a cargo with chains. The activity was found to have aggravated a previous arteriosclerotic heart condition. See also Cortrim Manufacturing Co. v. Smith, 570 S.W.2d 854 (Tenn.1978); Lawrence County Highway Department v. Hardiman, 531 S.W.2d 792 (1975).

In the case of P & L Construction Co. v. Lankford, 559 S.W.2d 793, 794 (Tenn.1978) the Court said:

“In a workmen’s compensation case, a trial judge may properly predicate an award on medical testimony to the effect that a given incident ‘could be’ the cause of the plaintiff’s injury, when he also has before him lay testimony from which it may reasonably be inferred that the incident was in fact the cause of the injury.”

Divergent results have been reached in many cases involving heart disease, depending upon the lay and medical testimony presented. Each case presents a question of fact to be determined by the trial court. In the present case, in our opinion, the conclusions reached by the trial judge that the decedent was experiencing a heart attack while working for his employer and that his work aggravated or enhanced preexisting heart disease, ultimately resulting in death, are .reasonable deductions from the testimony of the witnesses. We are unable to conclude that the record is totally devoid of material evidence to support the judgment of the trial court a conclusion which we would have to reach in order to reverse its decision.

In resolving the issues in favor of the claimant, the trial judge made the following statement which is the subject of the employer’s second assignment of error and which has given us great concern. Referring to the medical testimony he said:

“I have a split here; and, in my opinion, where I have such a split, I believe that taking the basis of the Workmen’s Compensation Statute which is: 1. That it is to be construed, I think, mostly liberally in favor of the workman; that if there is a doubt as between two testimonies, such as this, that I must travel with that which is more favorable to the Plaintiff . . . .” [Emphasis added].

This is a serious distortion of the function of a trial judge, whose decision on factual issues in workmen’s compensation cases is all but conclusive because of the limited scope of appellate review provided in T.C.A. § 50-1018.

The function of a trial judge in deciding workmen’s compensation cases is no different from that in any other civil action. The burden of proof rests upon the party claiming the benefits of the Workmen’s Compensation Act to establish the claim by a preponderance of all the evidence. An award may not be based upon conjecture; it must be based upon material evidence, and the rules of evidence are applicable. Nothing in the Workmen’s Compensation Act directly or indirectly requires a trial judge to depart from his traditional and important functions in weighing evidence and resolving conflicts therein. Testimony of witnesses should be evaluated in these cases, as in all others, upon the basis of the reasonableness or unreasonableness of the testimony given, the interest, bias, prejudice or lack thereof on the part of the witnesses, their general credibility, their opportunity to see and observe and all of the other standards and criteria applicable to factual decisions in a non-jury civil action. For a trial judge to depart from these and to assert that he is required by the Workmen’s Compensation Act to “travel with” the testimony which is more favorable to the claimant distorts the foregoing principles and is inconsistent with them, particularly those pertaining to the burden of proof.

It is well settled that the courts are required to give an equitable construction to the workmen’s compensation statutes themselves. T.C.A. § 50-918 expressly so requires. In its decisions over the years this Court has scrupulously and conscientiously adhered to the provisions of that statute and has undertaken to see that they are complied with. In doing so, and particularly in giving its rationale for appellate decisions, the Court has frequently made reference to a liberal interpretation or construction of the Act. Properly construed, however, these statements refer to the coverage of the Act, not to questions of burden of proof or accepting the testimony of witnesses for one side as against those of the other.

We recognize, as pointed out by the ap-pellee, that this Court has gone so far in some cases as to state:

“This Act is remedial and is to be liberally construed in favor of those entitled to its benefits (T.C.A. sec. 50-918), and any reasonable doubt as to whether an injury arose out of and in the course of employment is to be resolved in favor of the employee or his dependents.” Shubert v. Steelman, 214 Tenn. 102, 108, 377 S.W.2d 940, 943 (1964).

In that case, however, the issue was whether an injury was accidental or whether it was the result of intentional misconduct or self-inflicted. The statement was repeated in the case of Williams v. Preferred Development Corp., 224 Tenn. 174—177, 452 S.W.2d 344 (1970), as a part of the appellate court’s rationale in affirming a judgment awarding compensation where the decedent had been accidentally shot by another employee while at his place of employment.

Similar statements are found in numerous other cases and in various contexts, some of them involving the excusing of notice or other statutory formalities and some of them even involving issues of causation.

Nothing in any of the cases, however, in our opinion, justifies a trial court in concluding that the workmen’s compensation statute itself, or a liberal interpretation thereof, imposes a duty upon him that he “must travel” with the witnesses favorable to the employee and reject countervailing testimony. All of the evidence offered in the trial court must be weighed and valued by the trial judge and a proper resolution thereof made according to the fundamental principles above delineated and not because of any legal requirement that they be resolved in any particular way by the provisions of the Workmen’s Compensation Act.

Because the trial judge apparently felt that he was required by law to resolve the conflicting medical testimony in this case in a particular way, considerable doubt is cast upon the rationale he utilized. He went further, however, and stated that he accepted the testimony of the attending physician over that of the independent expert offered by appellant, finding the testimony of the attending physician to be consistent with the patient’s case history. This was his prerogative, and we find no reversible error in the conclusion which he ultimately reached.

Accordingly the judgment of the trial court is affirmed at the cost of appellant, and the cause is remanded to that court for such further orders as may from time to time be necessary.

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


source: Caselaw Access Project

author: FONES, Justice.

license: Public Domain

text:
    VERNON WILLIAMS & SON CONSTRUCTION, INC., Appellant, v. The CONTINENTAL INSURANCE COMPANY and Continental Casualty Company, Appellees.
    Supreme Court of Tennessee.
    Dec. 27, 1979.
    D. L. Lansden, Walter H. Crouch, Nashville, for appellant; Waller, Lansden, Dortch & Davis, Nashville, of counsel.
    R. B. Parker, Jr., Henry T. Finley, Nashville, for appellees; Parker, Nichol & Finley, Nashville, of counsel.
   OPINION

FONES, Justice.

The issue in this case is whether Continental Insurance Company’s comprehensive general liability policy provided coverage to its insured Vernon Williams and Sons Construction Company for its failure to perform a construction contract in a workmanlike manner.

The Williams Company’s liability' to Mitchell Steel Company for faulty construction of an addition to a warehouse was established in a prior lawsuit that contestant refused to defend upon the ground that its policy provided no coverage for the claims presented by Mitchell Steel.

Mitchell Steel’s counter-claim to Williams’ suit for the balance due on the contract price, asserted breach of the construction contract in the following particulars:

“(a) The concrete work was not properly designed to carry the load of the building and the crane system.
(b) The building and crane system were not designed by a professional engineer registered in the State of Tennessee.
(c) The warehouse slabs are not eight inches thick.
(d) The work was not done in an orderly and workmanlike manner.”

The judgment in favor of Mitchell Steel provided in part:

“That the complainant contracted with the defendant and cross-complainant to design and construct the building involved and thereby obligated itself to do such things as were necessary to determine the weight-bearing capacity of the soil on which the building was to be located in order that the building could be properly designed and constructed.
That the cross-defendant breached the contract in that it failed to ascertain the weight-bearing capacity of the soil and design and properly construct the building.
That as a result of this breach of contract, the south wall of the building and portions of the floor cracked, rendering the building unusable for the purposes for which it was constructed.”

This suit by the Williams Company against Continental to enforce the alleged policy obligation to defend and pay Williams liability for work performed in an unworkmanlike manner was dismissed by the trial judge, and his action was affirmed by the Court of Appeals, with one member dissenting. We granted the writ of certiorari because several of our sister states have, in recent decisions, construed similar policies to provide coverage, criticizing the case of Haugan v. Home Indemnity Co., 86 S.D. 406, 197 N.W.2d 18 (1972), relied upon by the Court of Appeals.

I.

Thé insuring clause of the comprehensive general liability policy provides:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
A. bodily injury or
B. property damage
to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements."

The policy defines “property damages” as “injury to or destruction of tangible personal property.”

The exclusions relevant to this suit follow:

“This insurance does not apply:
(a) to liability assumed by the insured under any contract or agreement except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner;
(k) to bodily injury or property damage resulting from the failure of the named insured’s products or work completed by or for the named insured to perform the function or serve the purpose intended by the named insured, if such failure is due to a mistake or deficiency in any design, formula, plan, specifications, advertising material or printed instructions prepared or developed by any insured; but this exclusion does not apply to bodily injury or property ■ damage resulting from the active malfunctioning of such products or work;
(l) to property damage to the named insured’s products arising out of such produced or any part of such products;
(m) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith; ”

All of the cases agree that exclusions (k), (7), and (m) clearly eliminate coverage for damages confined to the internal defectiveness of the insured’s own work product, resulting from defective materials or defective, negligent or unskilled workmanship.

Exclusion (a) is the source of disagreement. Arizona, Florida, and North Dakota appellate courts have held that exclusion (a) extends coverage to breach of contract damages for the performance of work in a negligent and unworkmanlike manner because such damages are expressly excepted from the assumption of liability by contract exclusion. See, e. g., Fontainebleau Hotel Corp. v. United Filigree Corp., 298 So.2d 455 (Fla.App.1974); Federal Insurance Co. v. P.A.T. Homes, Inc., 113 Ariz. 136, 547 P.2d 1050 (1976) and Applegren v. Milbank Mutual Insurance Co., 268 N.W.2d 114 (N.D.1978).

The reasoning of the Florida court in Fontainebleau was that exclusion (a) grants coverage and exclusion (m) takes it away, that the two clauses being repugnant, the more specific clause (a) prevails over (m), which is “general in nature.”

The Supreme Court of Arizona in P.A.T. Homes found ambiguity between exclusions (a) and (7). Observing that the South Dakota court in Haugan found no ambiguity between exclusions (a) and (7) whereas the Florida courts construed the same clauses as being ambiguous, the Arizona court applied the principle of construction that where various jurisdictions reach different conclusions as to the meaning of the language of an insurance contract, ambiguity is established. The Arizona court concluded that the insurer having drafted the policy, the ambiguity should be resolved in favor of the insured.

In Applegren v. Milbank Mutual Insurance Co., supra, the Supreme Court of North Dakota side-stepped the question of whether a comprehensive general liability policy covers the cost of correcting faulty workmanship, but reached that result by holding that exclusion (a) created an obligation to defend the insured. Finding that the insurance company had breached its duty to defend a suit predicated on negligent and unworkmanlike performance in breach of a construction contract, the cost of defense and settlement of the suit was imposed upon the insurer. The Applegren decision did not rest “primarily on principles of law pertaining to ambiguities in insurance policies,” but was bottomed squarely on the proposition that the “exception to an exception” in exclusion (a) operates to grant coverage to an insured’s warranty that work would be performed in a workmanlike manner.

In addition to the three cases cited above, Williams relies upon Weedo v. Stone-E-Brick, Inc., 155 N.J.Super. 474, 382 A.2d 1152 (1977). The intermediate appellate court of New Jersey held that exclusion (a) provided coverage for the cost of correcting faulty workmanship, expressly relying upon the reasoning employed in Fontainebleau and P.A.T. Homes and rejecting the rationale of Haugan.

At the time of oral argument of the instant case it was known that the Supreme Court of New Jersey had granted certification in Weedo, but its disposition of the case was not known. In an exhaustive, scholarly, and well-reasoned opinion, that court has reversed and dismissed the insured’s action, which asserted coverage for the correction of faulty workmanship. Weedo v. Stone-E-Brick, Inc. and Pennsylvania National Insurance Co., 81 N.J. 233, 405 A.2d 788 (1979).

In brief, the rationale of the Weedo decision is that a proper reading of the insuring clause and the “business risk” exclusions [(k), (7), and (m) in the Continental policy— (n) and (o) in the Pennsylvania National policy], negate coverage for the contractual liability of the insured-contractor to correct, replace, or repair faulty materials or workmanship; that the interpretation of the “exception” to exclusion (a) as a grant of coverage is contrary to the basic principle that coverage is granted in the insuring clause, and that exclusions subtract from coverage, rather than grant it; that the risk intended to be insured by a comprehensive general liability policy is faulty workmanship and materials which cause a tort liability to persons other than those to whom contractual obligation of workmanlike performance is due.

We quote from Weedo:

“Under the CGL provisions of the policy ' in question Pennsylvania National agreed to pay ‘on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury . or property damage to which this insurance applies, caused by an occurrence . . .’ (Emphasis supplied). This is the standard language found in the great majority of CGL’s written in this country. These provisions, developed by casualty rating bureaus over a period of nearly fifty years, have become an established norm of underwriting policy. Tinker, ‘Comprehensive General Liability Insurance — Perspective and Overview’ 25 Fed-er. Ins. Coun. Q. 217, 218-21 (1975); Henderson, ‘Insurance Protection for Products Liability and Completed Operations — What Every Lawyer Should Know,’ 50 Neb.L.Rev. 415, 418 (1971).
These agreements set forth, in fundamental terms, the general outlines of coverage, e. g., ‘for property damage to which this insurance applies.’ The qualifying phrase, ‘to which this insurance applies’ underscores the basic notion that the premium paid by the insured does not buy coverage for all property damage but only for that type of damage provided for in the policy. The limitations on coverage are set forth in the exclusion clauses of the policy, whose function it is to restrict and shape the coverage otherwise afforded. Capece v. Allstate Ins. Co., 88 N.J.Super. 535, 541, 212 A.2d 863 (Law Div.1965); Tinker, op. cit., supra, 25 Feder. Ins. Coun. Q.’ at 264.” 81 N.J. at 237-38, 405 A.2d at 790.

Also relevant to basic insuring agreements in the standard comprehensive general liability policy is the definition of property damage: “injury to or destruction of tangible property.” In St. Paul Fire and Marine Insurance Co. v. Coss, 80 Cal.App.3d 888, 145 Cal.Rptr. 836 (1978), the court reached the conclusion that a claim limited to remedying faulty workmanship or materials does not constitute “injury to or destruction of tangible property.” We agree.

We return to significant excerpts from Weedo:

“The consequence of not performing well is part of every business venture; the replacement or repair of faulty goods and works is a business expense, to be borne by the insured-contractor in order to satisfy customers. See Tinker, op. cit., supra, 25 Feder. Ins. Coun. Q. at 224; Henderson, op. cit., supra, 50 Neb.L.Rev. at 441.
There exists another form of risk in the insured-contractor’s line of work, that is, injury to people and damage to property caused by faulty workmanship. Unlike business risks of the sort described above, where the tradesman commonly absorbs the cost attendant upon the repair of his faulty work, the accidental injury to property or persons substantially caused by his unworkmanlike performance exposes the contractor to almost limitless liabilities. While it may be true that the same neglectful craftsmanship can be the cause of both a business expense of repair and a loss represented by damage to persons and property, the two consequences are vastly different in relation to sharing the cost of such risks as a matter of insurance underwriting.
In this regard Dean Henderson has remarked:
‘The risk intended to be insured is the possibility that the goods, products or work of the insured, once relinquished or completed, will cause bodily injury or damage to property other than to the product or completed work itself, and for which the insured may be found liable. The insured, as a source of goods or services, may be liable as a matter of contract law to make good on products or work which is defective or otherwise unsuitable because it is lacking in some capacity. This may even extend to an obligation to completely replace or rebuild the deficient product or work. This liability, however, is not what the coverages in question are designed to protect against. The coverage is for tort liability for physical damages to others and not for contractual liability of the insured for economic loss because the product or completed work is not that for which the damaged person bargained.’ [Henderson, op. cit., supra, 50 Neb.L.Rev. at 441.] 81 N.J. at 239-40, 405 A.2d at 791.
“In this case Stone-E-Brick’s interpretation of the policy would result in coverage for repair and replacement of its own faulty workmanship. This interpretation relies on the supposition that the exception to exclusion ‘(a)’ — ‘but this exclusion does not apply to a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner’ — grants coverage for claims based on the warranty described. Not so. The contention runs directly counter to the basic principle that exclusion clauses subtract from coverage rather than grant it. Precisely this point was made by the Supreme Court of South Dakota, in construing the very clauses we have before us:
‘. . . Exclusion (a) does not extend or grant coverage. To the contrary it is a limitation or restriction on the insuring clause. The exception to exclusion (a) merely removes breach of implied warranty of fitness, quality, or workmanship from the specific exclusion relating to contractual liability. The exception [to clause (a)] remains subject to and limited by all other related exclusions contained in the policy. When considered with exclusion (m) [(o) in the instant case] it clearly appears that property damage claims of third persons resulting from the insured’s breach of an implied warranty are covered unless the claimed loss is confined to the insured’s work or work product.’ [Haugan v. Home Indem. Co., supra, 197 N.W.2d at 22.]” 81 N.J. at 247-48, 405 A.2d at 795.
“But what does exclusion ‘(a)’ mean and what is its function? As we have endeavored to make clear, the policy in question does not cover an accent of faulty workmanship but rather faulty workmanship which causes an accident. See Hamilton Die Cast, Inc. v. United States F. & G. Co., 508 F.2d 417, 420 (7th Cir. 1975); Dreis & Krump Mfg. Co. v. Phoenix Insurance Co., 548 F.2d 681, 689 (7th Cir. 1977). Within this structure, contractual liability is excluded under the terms of exclusion ‘(a)’. The exception to this exclusion insures, however, that claims premised upon quasi-contract or contract by implication, such as warranty actions, will be covered. Such claims must nevertheless be otherwise cognizable under the general grant of coverage in the first instance in order to constitute a claim ‘to which this insurance applies.’ This analysis of the import of the ‘(a)’ exclusion accords with the generally-held view of other courts, see, e. g., Carboline Co. v. Home Indem. Co., 522 F.2d 363, 366 (7th Cir. 1975) (same construction given to similar clause in contractual liability policy); Biebel Bros., Inc. v. United States F. & G. Co., supra, 522 F.2d [1207] at 1212; Haugan v. Home Indem. Co., supra, 197 N.W.2d at 22; Aetna Insurance Co. v. Pete Wilson Roofing & Heating Co., Inc., 289 Ala. 719, 272 So.2d 232, 234-35 (1973) (contractual liability policy construed), and at the same time saves the clear import of the exclusions for ‘business risks.’ ” 81 N.J. at 249-50, 405 A.2d at 796.

We are convinced that the standard comprehensive general liability policy does not provide coverage to an insured-contractor for a breach of contract action grounded upon faulty workmanship or materials, where the damages claimed are the cost of correcting the work itself. The Mitchell Steel counter-complaint against the Williams Company involved that character of claim only, and thus there was no coverage and no duty upon the insurer to defend.

The judgment of the Court of Appeals is affirmed. Costs are adjudged against petitioner.

BROCK, C. J., and COOPER, HENRY and-HARBISON, JJ., concur.


author: HENRY, Justice.

text:
    James E. MIDGETT, Appellant, v. Frank SMITH et al., Appellees.
    Supreme Court of Tennessee.
    Dec. 31, 1979.
    B. F. (Jack) Lowery, Lebanon, for appellant.

      McAllen Foutch, Smithville, for appellees.
   OPINION

HENRY, Justice.

This case involves the revocation of a beer permit.

On- November 3, 1973, appellant was granted a permit authorizing the sale of packaged beer.

On March 21, 1975, he was convicted on a plea of guilty, of “possession of tax whiskey.” On May 13,1975, the DeKalb County Beer Board granted an “amendment” to his permit so as to permit consumption on the premises. After voting to revoke his permit in January 1977 and reversing itself two weeks later, the Beer Board, on September 1, 1977, revoked the permit on the basis of the conviction of the intoxicating liquor charge. On certiorari the Circuit Court upheld the action of the Beer Board. We affirm.

The appellant presents three (3) assignments. First, he asserts that his permit was revoked “without giving him formal notice.”

There is no requirement in the law that “formal” notice be given; however, better practice and fundamental fairness dictate that one whose beer permit is in jeopardy be given some form of notice, preferably in the form of a citation setting forth the nature of the charged violation and the date, time and place of the hearing. Such notice was not issued in this case; however, the record shows that at the August 1977 meeting of the Board, Mr. Mid-gett was present, and was confronted with his plea to the liquor law violation. He elected to make no response. It was announced at that meeting that action would be taken the following month.

Appellant did not attend the September meeting at which the permit was revoked. When the matter came before the Circuit Court on certiorari, he did not testify and called no proof.

We elaborated on the question of notice, in this context, in Richards v. Lewis burg Alcoholic Beverage Commission, 543 S.W.2d 852 (Tenn.1977). We pointed out:

the procedural safeguards relating to appellate review, all but obliterate the necessity for notice, . . . . The revocation of a beer permit is reviewable by the Circuit Judge or Chancellor under the statutory writ of certiorari with a trial de novo.

543 S.W.2d at 854

Because the trial judge makes his own independent judgment and substitutes his judgment for that of the beer board, the lack of notice is not fatal. The application of this reasoning most assuredly produces no injustice in this case because the appellant knew the Board was going to act and knew there was record evidence that he had violated the laws relating to intoxicating liquors.

Next appellant charges the Beer Board with laches because it did not act to revoke his license for almost two and one half years after his conviction, and in the meantime had enlarged his permit. This latter circumstance, he contends, was a waiver.

Assuming arguendo that the principle of waiver is applicable, we find no relinquishment of a known right. The record is clear that the Board had no knowledge of his conviction at the time it enlarged the permitted scope of his activities.

We find no facts sufficient to support a defense of laches or waiver.

Lastly, appellant insists that the action of the Beer Board in granting him authority for the sale of beer for consumption on the premises was tantamount to the issuance of a new permit. We agree. There is no provision in our law for an amendment or enlargement of a beer permit so as to convert a “package” permit into one authorizing “on premises” consumption. This follows from the fact that wholly different considerations are involved. See generally, Coffman v. Hammer, 548 S.W.2d 310 (Tenn.1977).

The amendment was, in legal effect, a new permit which required applicant to meet all conditions precedent enumerated in Section 57-205, T.C.A. In Howard v. Willocks, 525 S.W.2d 132 (Tenn.1975), we held that a beer permit “may be transferred, upon proper application to the . beer committee, and a showing of full compliance with Section 57-205, T.C.A.” 525 S.W.2d at 137. This is an analogous situation.

Among the requirements of Section 57-205, T.C.A., governing the issuance of a permit, is a showing that “neither the applicant nor any persons employed by him . shall be a person who has been convicted of any violation of the laws against possession . of intoxicating liquor.”

At the time the “new permit” was granted, applicant was legally disqualified. There is no indication that he disclosed this fact to the Board. Nor is it any answer to say that the Board proceeded informally and incorrectly — as it unquestionably did in failing to require a new application in order to consider the various statutory and deci-sional criteria peculiarly applicable to permits for on-premise consumption. The fact remains that under the statute he was not entitled to have his permit amended or enlarged or a new permit issued.

Section 57-209, T.C.A., provides, in pertinent part, that permits may be revoked “for any violation of any provision of this Chapter.” These statutes confer upon beer boards the right to revoke for any of the reasons which would disqualify an applicant in the first instance.

We affirm the action of the Trial Court and remand for the issuance of appropriate orders placing the final revocation into effect.

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

      . While the record is not entirely clear, apparently this was based upon a charge of stocking intoxicating liquors in violation of Section 39-2527, T.C.A.

      . Actually the assignments complaint of the action of the Beer Board as opposed to that of the Circuit Court. Review in the Circuit Court is de novo; the trial judge is required “to make an independent judgment on the merits” and, in effect, “substitut[es] his judgment for that of the beer board.” Cantrell v. DeKalb County Beer Board, 213 Tenn. 568, 572, 376 S.W.2d 480, 482 (1964). See also, Lones v. Blount County Beer Board, 538 S.W.2d 386 (Tenn.1976). The assignments have no vitality; however, we have elected to consider them.


author: MATHERNE, Judge.

text:
    PLEASANT VIEW UTILITY DISTRICT, Plaintiff-Appellant, v. FIRST U. S. CORPORATION et al. [Union Planters National Bank of Memphis], Defendant-Appellee, SOUTH CHEATHAM UTILITY DISTRICT, Plaintiff-Appellant, v. FIRST U. S. CORPORATION et al. [Union Planters National Bank of Memphis], Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section.
    Nov. 11, 1978.
    Certiorari Denied by Supreme Court April 2, 1979.

      Cecil D. Branstetter and Carrol D. Kil-gore, Branstetter, Moody & Kilgore, Nashville, for plaintiff-appellant.
    W. R. Baker and Robert Boak Slocum, Ashland City, for defendant-appellee.
   MATHERNE, Judge.

In these companion cases the plaintiff utility districts sue First U. S. Corporation and one of its former presidents, Bill F. Sutton, alleging fraud on the part of the defendants in the manner in which the defendants arranged for the issuance of certain bonds by the plaintiffs. Later the complaint was amended to make Union Planters National Bank, as the Administrator of the estate of George L. Lennox, a party defendant. The plaintiffs allege that Lennox, as a stockholder in First U. S. Corporation, participated in the fraud and personally received bonds and supplemental interest coupons of the plaintiffs which instruments are now held by his estate. The plaintiffs seek cancellation of all bonds of the plaintiffs held as assets of the estate of Lennox.

Union Planters National Bank, Executor of the Estate of George L. Lennox, deceased, filed a motion for summary judgment for lack of venue. The chancellor treated the motion for summary judgment as a motion to dismiss for improper venue and held that “the only proper venue as to Union Planters National Bank is Shelby County.” The chancellor, accordingly, dismissed the lawsuits against Union Planters National Bank and entered an order under the fourth paragraph of T.C.A. § 27-305 rendering the judgment final as to Union Planters National Bank. The plaintiff utility districts appeal that decision.

Union Planters National Bank is a national bank chartered by the Comptroller of the Currency under, the provisions of the National Banking Act, 12 U.S.C. § 21, et seq. Section 94 of the Act fixes venue for lawsuits against national banks as follows:

Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases. R.S. § 5198; Feb. 18, 1875, c. 80, § 1, 18 Stat. 320; Mar. 3, 1911, c. 231, 36 Stat. 1167.

Union Planters’ main and principal office and each of its branches are located in Shelby County, Tennessee; none are located in Cheatham County, Tennessee, and it has no employees, agents, officers or property of any kind in Cheatham County, Tennessee. The question is whether Union Planters National Bank can be subjected to suit in Cheatham County as Executor of the Estate of George L. Lennox. The complaint does not seek relief against the bank; relief is sought only against the bank as the executor of the estate of an alleged wrongdoer.

National banks may waive the protection of the venue statute. Michigan National Bank v. Robertson, 372 U.S. 591, 83 S.Ct. 914, 9 L.Ed.2d 961 (1963). A waiver of the statute may be inferred from conduct inconsistent with the assertion of the privilege. Northside Iron & Metal Co., Inc. v. Dobson & Johnson, Inc., 480 F.2d 798 (5th Cir., 1973).

It is apparent that the Congress meant to limit the venue in which national banks may be sued. It is not apparent that the Congress intended to create a “national executor" of estates of deceased persons. When a national bank accepts the position of an executor of an estate, there is no sound reason why it should not be liable to suit as any other executor. The acceptance of the appointment is conduct which clearly implies that the bank is subjecting itself to state law governing executors, and therefore it may sue and be sued in any county of otherwise proper venue or. all matters arising out of that executorship. The federal venue statute is waived only to that limited extent. Compare: Buffum v. Chase Nat. Bank of City of New York, 192 F.2d 58 (7th Cir. 1951); County of Okeechobee v. Florida National Bank (1933) 112 Fla. 309, 150 So. 124; Malaker Corp. Stock Pro. Com. v. First Jersey National Bank (1975) 133 N.J.Super. 462, 337 A.2d 390; Lichtenfels v. North Carolina National Bank (1963) 260 N.C. 146, 132 S.E.2d 360, 1 A.L.R.3d 897.

The decree of the chancellor is reversed and this lawsuit is remanded to the Chancery Court sitting in Cheatham County, Tennessee for such further proceedings as the law requires. The cost in this Court is adjudged against the appellee Union Planters National Bank.

NEARN and EWELL, JJ., concur.


author: PARROTT, Presiding Judge.

text:
    Dean E. TRENT, Plaintiff-Defendant by Countercomplainant-Appellee, v. Evelyn H. PARKER and J. T. Parker, Jr., Defendants-Countercomplainant-Appellants. and EAST LAWN MEMORIAL PARK, INC., Intervenor Plaintiff-Appellant, v. Dean E. TRENT, Defendant by Intervening Complaint-Appellee.
    Court of Appeals of Tennessee, Eastern Section.
    Sept. 7, 1979.
    Certiorari Denied by Supreme Court Dec. 27, 1979.

      Edwin L. Treadway, T. Arthur Scott, Jr. of Hunter, Smith, Davis, Norris, Treadway & Hadden, Kingsport, for defendants-coun-tercomplainant-appellants.
    William S. Todd of Todd & Dossett, Kingsport, for plaintiff-defendant by coun-tercomplainant-appellee.
   OPINION

PARROTT, Presiding Judge.

Evelyn H. Parker and J. T. Parker, Jr., the defendants-counterclaimants, and East Lawn Memorial Park, Inc., intervening plaintiff, appeal from a final decree, which in part ordered the termination and cancellation of two insurance policies. East Lawn was owner and beneficiary of these policies which were issued on the life of Dean E. Trent, plaintiff-appellee.

The original complaint and the intervening complaint both sought payment of indebtedness allegedly due, and the counter-complaint asked for credits and setoffs. The chancellor determined the amounts due each party and incorporated this determination into the final decree. That portion of the decree has been complied with and is not at issue in this appeal.

During trial Trent was allowed to amend his complaint so as to seek the cancellation of the two aforementioned life insurance policies which totalled $350,000.00. The chancellor specifically held that East Lawn had no insurable interest in the life of Trent and ordered the policies cancelled. This appeal was thereafter perfected and the order of cancellation assigned as error.

Parker, who was actively engaged in an insurance agency which he owned, purchased a fifty percent interest in East Lawn from Trent. After this purchase, each owned one half of the outstanding common stock.

To allegedly allow the corporation to pay off certain notes in the event of death of either shareholder, Parker recommended that East Lawn take out an insurance policy in the amount of $250,000.00 on both he and Trent. These policies plus another $100,000.00 “key man” policy on Trent were purchased. In all, the corporation purchased $950,000.00 worth of life insurance from Parker.

At the time the insurance was purchased, Trent served as chief executive officer of the corporation and as its active manager. He continued in that role until 1975, at which time he sold his fifty percent interest to Evelyn Parker and dissolved all connections, other than that of a creditor, with East Lawn. This sale was allegedly caused by the disagreement between Parker and Trent over the amount of insurance owned by East Lawn. Parker’s alleged failure to make the installment payments arising from the stock sale resulted in the filing of a complaint by Trent on March 18, 1977.

The amended complaint alleged that East Lawn no longer had an insurable interest in the insured’s life and asked the court to order that the two policies be cancelled. As stated before, the court so found and so ordered. Although the court was correct in holding that East Lawn no longer had an insurable interest, it erred in ordering the policy cancelled for that reason.

T.C.A. 48-402(k) specifically empowers a corporation with the right to purchase insurance on certain employees and a corporation certainly has an insurable interest in the life of its chief executive officer. Wurzburg v. New York Life Ins. Co., 140 Tenn. 59, 203 S.W. 332 (1918). East Lawn, therefore, had an insurable interest in the life of Trent when the policies were purchased. The insurance policies were, therefore, initially valid. The subsequent cessation of an insurable interest does not invalidate an insurance policy which was valid when purchased. Wurzburg v. New York Life Ins. Co., supra; Marquet v. Insurance Co., 128 Tenn. 213, 159 S.W. 733 (1913); Mutual Life Ins. Co. v. Schaefer, 94 U.S. 457, 24 L.Ed. 251. The policy was, therefore, valid and it was error to order its cancellation for lack of an insurable interest. Furthermore, the chancellor erred in allowing the appellee to amend his complaint to challenge the policy for lack of insurable interest. The majority rule allows only the insurer to raise the issue of lack of insurability. We think such to be a logical and sound approach.

The chancellor, in section ten of the final decree, stated:

That the life insurance policies in the amount of $350,000.00, which were written on plaintiff’s life with Provident Life and Accident Insurance Company in about September, 1975, just three months before the plaintiff sold his remaining interest in the capital stock of the corporation to the defendants who are now the sole owners of said corporation, which is the Intervening Plaintiff in this cause, which corporation is the owner and beneficiary under said policy, should not continue to be carried in force upon plaintiff’s life, as plaintiff strenuously objects to said insurance being, carried on his life in favor of a corporation with whom he has been engaged in extended litigation; and the Court holds that said corporation no longer has any insurable interest in the life of the plaintiff, that plaintiff strenuously objects to said insurance being carried on his life and that said corporation is given sixty (60) days to complete the termination and cancellation of said insurance on plaintiff’s life after said sixty (60) days.

After reviewing the evidence in this case, we find no reason for ordering the policy cancelled except for the fact that the insured objects to its continuance. There appears to be no imminent danger to the appellee and no harm in allowing the corporation to continue carrying the insurance. The judgment below is, therefore, reversed, the complairit dismissed, and the costs of this appeal taxed to. the appellee.

GODDARD and FRANKS, JJ., concur.


author: TODD, Judge.

text:
    C. W. HARDIMON, Plaintiff-Appellee, v. CULLUM & MAXEY CAMPING CENTERS, INC., Defendant-Third Party Plaintiff-Appellant, v. EXECUTIVE INDUSTRIES, INC. and Chrysler Corporation, Third Party Defendants.
    Court of Appeals of Tennessee, Middle Section.
    Oct. 26, 1979.
    Certiorari Denied by Supreme Court Dec. 27, 1979.
    Abridged Opinion Jan. 9, 1980.

      James Smith and Wayne Hyatt, Good-lettsville, for plaintiff-appellee C. W. Hardi-mon.
    Thomas E. Watts, Jr., Nashville, for defendant-appellant Cullum & Maxey Camping Centers, Inc.
    Jonathan M. Harwell, Nashville, for defendant-appellee Executive Industries, Inc.
    J. G. Lackey, Jr., Nashville, for defendant-appellee Chrysler Corp.
   TODD, Judge.

ABRIDGED OPINION

(With the concurrence of participating judges, the original opinion has been abridged for publication.)

Plaintiff, C. W. Hardimon, sued defendant, Cullum & Maxey Camping Centers, Inc., to recover the purchase price of an allegedly defective “motor home” purchased from Cullum & Maxey, which purchase plaintiff claims to have disaffirmed by redelivery of the motor home to Cullum & Maxey.

Cullum & Maxey answered denying plaintiff’s right to recover and sued Executive Industries, Inc., and Chrysler Corporation as third party defendants as manufacturers of the motor home, seeking judgment over against them for any amount recovered by plaintiff from Cullum & Maxey.

Executive Industries denied liability and sought judgment over against Cullum & Maxey and Chrysler Corporation for any amount recovered from Executive.

Chrysler denied liability as to the claims of both Cullum & Maxey and Executive Industries.

Cullum & Maxey filed a countersuit against plaintiff for $20,000.00 and, during the trial, plaintiff amended his complaint to sue for failure to re-sell the motor home in a commercially reasonable manner after plaintiff re-delivered it to Cullum and Max-ey-

The Chancellor filed a memorandum reciting the following:

“. . . The vehicle was manufactured .in California by Executive Industries, Inc. Executive built the motor home on a chassis sold to it by the Chrysler Corporation.
. In February 1975, Hardimon purchased the 31-foot Executive motor home from Cullum & Maxey in Nashville . Hardimon had trouble with the motor home from the minute he took delivery — it wouldn’t start when he tried to drive it off Cullum & Maxey’s lot. When he finally got it started and tried to drive it to Kentucky, he had trouble trying to keep it on the road, a problem which plagued the motor home during the entire eight and one-half months he possessed it. The first night he drove it, the lights would not work.
For seven months, Hardimon tried to have the motor home repaired. He repeatedly took it back to Cullum & Maxey and to Chrysler’s Local dealer. The unit never drove properly or even safely, and it was not suitable for use as a permanent residence. After consulting with an attorney, Hardimon returned the motor home to Cullum & Maxey in October 1975 and revoked his acceptance of the goods.
Hardimon is entitled to recover “so much of the [purchase] price as has been paid.” T.C.A. § 47-2-711(1). He made a down payment of $8,887. He made eight monthly payments of $466, for a total of $3,728. The total purchase price paid is thus $12,515.
The defendants take the curious position that Hardimon is not entitled to recover the full amount of the down payment because Cullum & Maxey intentionally misrepresented the value of the trade-in vehicles to Hardimon in an effort to mislead him into believing he was getting a better deal than he actually received. The defendants say the real value of the trade-in vehicles was the price obtained by Cullum & Maxey when-it sold the units, $6,095. Having represented to Hardimon that the trade-in vehicles were worth in excess of $8,000 in order to induce him to buy the motor home, Cul-lum & Maxey and other defendants are estopped to deny the value represented. A court of equity could not countenance such deception.
Hardimon is entitled to recover the time he missed from work tending to the defective motor home ($375), the payment to Third National Bank to extend his loan ($150), and the cost of repairs he incurred ($181). He is not entitled to recover for the other items he claims.
Cullum & Maxey incorrectly asserts that the two contract documents executed by the parties contain valid exclusions of implied warranties.
The attempted exclusions do not conform to the Code. T.C.A. § 47-2-316(2)(3). The purchase order form (Exhibit 1) does not remotely comply with the Code. The security agreement (Exhibit 2) has buried in the fine print on the reverse side the words “as is.” Implicit in subsection (3) of § 47-2-316 is the requirement that the attempted exclusion be conspicuous, or at least not hidden.
. With the revocation of the acceptance, the sale contract is rescinded. The transaction" is voided — there is no longer a sale. There is thus no implied warranty.
. since the sale contract is rescinded and there is no sale, Hardimon has no claim against either Executive or Chrysler for the same reason he has no warranty claim against Cullum & Maxey.
After Hardimon returned the motor vehicle to Cullum & Maxey in October 1975, it was left on Cullum & Maxey’s lot for one year. Cullum & Maxey then sold the motor home to Garrison, the West-moreland used car dealer, for $15,000.
Cullum & Maxey did not dispose of the collateral in a commercially reasonable manner as required by T.C.A. § 47-9-504. Cullum & Maxey is not entitled to recover from Hardimon.
The central issue in this entire litigation is whether the loss caused by the sale of the defective motor home to Hardimon must fall on the seller, Cullum & Maxey, or the manufacturer, Executive. The Court concludes that Cullum & Maxey must bear the loss.
The relationship between the parties is governed by a contract, termed “dealer agreement,” dated August 23, 1974 (Exhibit 12). . . .
. Cullum & Maxey and Executive agreed that the only warranty given by Executive to Cullum & Maxey would be an express, written warranty . The express warranty (Exhibit 6) spells out the duties imposed upon Executive in the event it manufactures and sells a motor home which is defective. There is no evidence that Executive failed to hon- or any substantial warranty claim made against it by Cullum & Maxey.
The contract further provides that Cul-lum & Maxey was to have performed the warranty work and that Executive was to have reimbursed Cullum & Maxey for that work. (Paragraphs 3(m) and 4(e)). Cullum & Maxey did not perform the warranty work for Hardimon as it was required to do under its contract.
Cullum & Maxey is not entitled to pass on to Executive the damages awarded to Hardimon .
Chrysler’s only involvement in the motor home was its sale to Executive of an engine and chassis for $3,573 upon which Executive built the coach. The evidence is inconclusive as to whether any of the unrepaired problems were covered by Chrysler’s warranty. Apparently, Chrysler honored all warranty claims submitted to it. No party is entitled to any relief against Chrysler.
(2) Hardimon is awarded a judgment against Cullum & Maxey in the amount of $13,211.
(3) Hardimon’s suit against Executive and Chrysler, Cullum & Maxey’s suits against Hardimon, Executive and Chrysler, Executive’s suits against Cullum & Maxey and Chrysler, and Chrysler’s suit against Executive are all dismissed.

A decree was entered accordingly from which only Cullum & Maxey has appealed.

The first assignment of error is:

“The honorable trial court erred in holding that Hardimon was entitled to revoke acceptance of the motor home when the motor home had undergone a substantial change in condition not caused by its own defects.”

Appellant first argues that, even though defective, the vehicle was not worthless, hence the use of it from February through October over 7,000 miles must have effected a substantial change in its condition such as to preclude the belated return and disaffirmance. Appellant also points out the testimony of its witness that the vehicle would ordinarily lose 20% of its value in its first year of use.

In Moore v. Howard Pontiac-American, Tenn.App.1972, 492 S.W.2d 227, rescission and damages were allowed where the vehicle was purchased on May 29, 1971, and

“Appellees filed suit for rescission of the contract of purchase and damages on August 3, 1971. On filing suit, appellees stored the automobile, but started using it some two months l'ater because of the inconvenience and prohibitive cost of other transportation available to them.
Both before and after appellees suit was filed, the appellant undertook to repair the automobile under the warranty in the sales contract. However, the evidence shows the repairs performed by appellant either were not effective, or, where effective, the appellant created new problems or caused new damage in making the repairs.
Appellant continued to make repairs to the automobile until February, 1972. At that time, the appellees notified the defendant by letter that they were revoking their acceptance of the automobile, and were proceeding with the suit.” (492 S.W.2d at 228)

The following observation of this Court in the cited case is pertinent to the present case:

“[4] As to the latter insistence of appellant, the determination of “a reasonable time” within which the buyer of an automobile may revoke his acceptance depends on the facts and circumstances of a particular case. T.C.A. 47-1-204(2). Under the contract of purchase in this case, appellees were obligated to notify the appellant of defects in the automobile and to give appellant a reasonable opportunity to remedy the defects before ap-pellees were entitled to other relief. Cf. Lilley v. Manning Motor Company, 262 N.C. 468, 137 S.E.2d 847. The time given appellant to make repairs does appear to be long, but not fatally so when balanced against the obligation of the appellant under the contract.” (492 S.W.2d at 229-230)

The cited case is not distinguishable from the present case by the filing of suit or notice or threat to revoke acceptance earlier than the final re-delivery. The controlling feature of both the cited case and of the present case is that there was a continuous pattern of defects and an equally continuous pattern of efforts of the dealer to correct the defects and to reassure the customer.

The obvious motive and purpose of the dealer’s long continued efforts was to induce the customer to retain the vehicle and refrain from revocation. It would be neither just nor wholesome to hold that a customer waives his right to revoke acceptance by permitting the dealer to correct defects.

The second assignment of error is:

“The honorable trial court erred in fixing the damages assessed against Cullum & Maxey under the provisions of T.C.A. 47-2-711 and 47-2-715.”

Orba Maxey, witness for appellant, testified without contradiction that the plaintiff’s down payment on the subject vehicle consisted only of the trade-in of a truck and camper trailer which were “over-valued” at $8,887.00 in order to “make a deal” with plaintiff; that the practice of overvaluing trade-ins is accepted practice in the trade and is done in lieu of reducing the price of the vehicle being sold; that the actual “bargaining point” is the “difference” between the agreed price of the new vehicle and the agreed price of the “trade-in”; and that, if the trade-in were not overvalued, a corresponding reduction would be made in the price of the new vehicle, so that the “difference” to be paid by the customer would be the same.

Mr. Maxey was asked, but did not answer the “fair market value” of the truck and trailer traded in by plaintiff. He did testify that the truck and trailer were “probably put on our books at $5,000.00,” but were ultimately sold at retail for $6,095.00. While this is not the most satisfactory evidence of the actual market value at the time of the “trade-in”, the actual price obtained by a dealer selling at retail is persuasive evidence of actual value. This is especially true because the evidence shows that the trade-in truck and trailer were not sold quickly but were kept on the sales lot of plaintiff until the “right man” came along to obtain the best sale.

There is no other evidence of the value of the trade-in except the amount of allowance for trade-in as shown on the sales agreement.

This Court does not agree with the Chancellor that an excessive trade-in allowance constitutes any fraud upon the purchaser. On the contrary, as between the parties to the transaction, the resolution of their dispute should be based upon the actual facts.

The second assignment of error is sustained to the extent of reducing the judgment by $2,675.00, the difference between $8,770.00 trade-in allowed by the Chancellor and $6,095.00, actual value of trade-in.

The third assignment of error is:

“The honorable trial court erred in holding that the sales agreement and security agreement between Cullum & Maxey and Hardimon did not limit the warranty of merchantability.”

Appellant quotes T.C.A. § 47-2-316 to the effect that implied warranties may be excluded by such expressions as “as is.” The words “as is” were hidden in fine print on the reverse side of the sales contract. No valid exclusion of implied warranty is found in the sales contract.

The third assignment of error is respectfully overruled.

The fourth assignment of error is:

“The honorable trial court erred in dismissing the claim of Cullum & Maxey against Executive for breach of its warranty of merchantability, and so declining to award damages.”

Appellant argues earnestly that it is entitled to the benefit of an implied warranty of merchantability from Executive. The agreement between Executive and appellant provided that Executive would “stand behind” its products to the extent of paying appellant’s labor and material costs to repair defective vehicles and that appellant assumed the duty of making such repairs at Executive’s expense. This agreement provided the all-inclusive remedy for any defect in any vehicle sold to appellant by Executive. Appellant failed to perform its contractual duty to carry out the repairs. Therefore, regardless of the form of warranties in effect between appellant and Executive, appellant has no rights under such warranties except to perform the corrections and bill Executive for the expenses.

If the vehicle had been shown to be unrepairable, appellant’s argument might have some basis; but the ultimate and proximate cause of the plaintiff’s troubles was the failure of appellant to properly perform its duty to correct defects.

The fourth assignment of error is respectfully overruled.

The fifth assignment of error is:

“The honorable trial court erred in dismissing the claim of Cullum & Maxey against Mr. & Mrs. Hardimon for the deficiency created by the security agreement upon the sale of the motor home.”

Plaintiff was justified in revoking acceptance and disaffirming the sale. The disaf-firmance of the sale invalidated it for all purposes, including any obligation to pay a deficiency residue of the purchase price.

The fifth assignment of error is respectfully overruled.

The sixth assignment of error is:

“The honorable trial court erred in dismissing the claim of Cullum & Maxey against Executive for indemnity in view of the lack of fault on the part of Cullum & Maxey for the manufacturing defects in the motor home.” ■

As previously discussed, appellant's rights against Executive were completely spelled out in their contract (i. e. appellant repair at Executive’s expense). Therefore, there can be no other remedy under the contract. T.C.A. § 47-2-719(l)(a). Also, appellant’s failure to repair as agreed constituted a breach of its contract with Executive which proximately caused the loss, hence appellant is barred from recovery under the contract.

Until appellant has shown that troubles chargeable to Executive could not be corrected, appellant is entitled to nothing from Executive but reimbursement for correcting the troubles.

The real reason for the ultimate revocation of acceptance was dissatisfaction with appellant’s unsuccessful efforts to correct certain defects, notably the steering. It cannot be said that plaintiff would have revoked acceptance and disaffirmed if appellant had promptly and adequately corrected each defect as it appeared.

Appellant cites Houseboating Corp. of America v. Marshall, Tenn.1977, 553 S.W.2d 588; however, that case did not involve the contractual agreement between the manufacturer and dealer, which is involved in this case. In the present case, the form and extent of indemnity was agreed upon, i. e., reimbursement of expenses of repair.

The dereliction of appellant was not failure to try to correct defects, for it appears that appellant did try. The dereliction of appellant was the failure to succeed in correcting defects. This was evidently due to incompetence or lack of skill of the employees of appellant for which, unfortunately, appellant must bear the loss.

The sixth, and last, assignment of error, is respectfully overruled.

The foregoing renders unnecessary any further discussion of the rights of appellant to a judgment over against Executive or Chrysler, or the rights of Executive to a judgment over against Chrysler.

The judgment rendered by the Chancellor in favor of plaintiff and against Cullum & Maxey will be modified to $10,536.00. As modified, the judgment is affirmed. Judgment will be entered in this Court in favor of plaintiff and against Cullum & Maxey for $10,536.00 and all costs, including the costs of this appeal. The judgment of the Chancellor in favor of Executive and Chrysler is affirmed.

Modified and Affirmed.

SHRIVER, P. J., and LEWIS, J., concur.


author: DWYER, Judge.

text:
    STATE of Tennessee ex rel. James Newton LINGERFELT, Petitioner, v. Mike GARDNER, Sheriff of Sullivan County, Tennessee, Respondent.
    Court of Criminal Appeals of Tennessee.
    April 5, 1979.
    Permission to Appeal Denied by Supreme Court July 30, 1979.

      J. Klyne Lauderback, Bristol, for petitioner.
    William M. Leech, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Nashville, Steven H. Jones, Asst. Dist. Atty. Gen., Blountville, for respondent.
   OPINION

DWYER, Judge.

From the denial of his petition for a writ of habeas corpus contesting his extradition from Tennessee to the State of West Virginia after a hearing the petitioner appeals with assignments of error, which are these: (1) the trial court erred in denying his motion to dismiss the rendition warrant as issued by the governor of Tennessee; (2) the evidence did not support the trial court’s dismissal of the petition; (3) the court erred in refusing to allow a witness to testify for petitioner who had violated the rule of sequestration.

A review of the record reveals that petitioner had been discharged from the Kentucky penitentiary in December of 1977 and returned to Sullivan County, Tennessee, to reside at various times, with his parents, a girl friend and a sister. Witnesses presented by the petitioner testified that on the crime dates, February 10 and 11, petitioner was in or about his duties cutting wood on Holstein Mountain in Sullivan County. The State countered with two store owners from Berkely County, West Virginia, who identified petitioner as being in or near their stores when worthless checks were presented to them on the respective dates of February 10 and 11, 1978.

The first assignment of error: It is petitioner’s contention that T.C.A. § 40-1011 requires the governor of the asylum state (Tennessee) to make an investigation of the circumstances of the demand from the sending state before issuing his rendition warrant. We disagree in that we interpret the key word in the statute, “may”, as meaning that the code provision is discretionary and not mandatory. Huey v. King, 220 Tenn. 189, 195, 415 S.W.2d 136 (1967). The failure, therefore, of the respondent to affirmatively demonstrate that such an investigation occurred is not error.

The petitioner also contends that the rendition warrant was not signed by the governor of the State of West Virginia. The rendition warrant may be found in the technical record; however, it was not introduced into evidence and, therefore, is not properly before this court. Chico v. State, 217 Tenn. 19, 394 S.W.2d 648 (1965).

The issuance of the rendition warrant by the governor of Tennessee created a prima facie case that the petitioner was lawfully charged with a crime in the demanding state and had fled therefrom. This prima facie case was not rebutted by contradictory proof at the evidentiary hearing. Reeves v. State, ex rel. Thompson, 199 Tenn. 598, 288 S.W.2d 451 (1956). The assignment is accordingly overruled.

The second assignment of error: The petitioner has the burden of proof in habeas corpus hearings of this kind to show beyond a reasonable doubt that he was not in the demanding state at or about the time of the commission of the crime. McLaughlin v. State, 512 S.W.2d 657, 660 (Tenn.Cr.App.1974). The petitioner adduced testimony from witnesses that he was in Tennessee at or about the time of the commission of the offenses in West Virginia. The State introduced witnesses who positively identified the petitioner as being in West Virginia at or about that time. The petitioner should not be discharged if there is merely contradictory evidence as to his presence in the demanding state. We think the evidence supports the ruling of the trial judge. The second assignment of error is accordingly overruled.

The third assignment of error: Petitioner had called a witness who had been sitting in the courtroom during the presentation of his evidence. The rule had been invoked prior to the commencement of the proceedings, therefore, on objection by the State the trial judge would not allow the witness to testify. Counsel for the petitioner then made known to the court that the witness was not and had not been subpoenaed and that he was unaware the witness would be called until the petitioner asked him to call the witness. When the trial court still refused to allow the testimony of the witness, the petitioner requested that the witness be allowed to testify and her testimony preserved for appellate review. The State was adamant as to this request and the trial court denied it. The petitioner urges here that the denial by the trial court of the testimony of the witness deprived petitioner of material testimony. While we think the better practice would have been to allow this preservation of evidence for review, the allowing or not allowing the testimony of a witness who has violated the rule is within the sound discretion of the trial court. McCravy v. State, 2 Tenn.Cr.App. 473, 455 S.W.2d 174 (1970); Robinson v. State, 474 F.2d 1273 (6th Cir. 1973). We can understand the predicament petitioner is in here to show an abuse of discretion by the trial court’s action in disallowing the testimony when that testimony was not preserved in that he has no basis to support his urging of prejudice. However, in the best light to the petitioner the witness could have only added testimony that petitioner was not in the demanding state at or about the time of the commission of the offense. This would have risen to no higher degree than the five or six other witnesses that he had presented to make that point. In other words, it could have risen to no higher level than being contradictory. That coupled with the fact that the petitioner knowing or should have known that he was going to call the witness and the witness being present in the courtroom when the rule was invoked, this fault only attributable to the petitioner, we find this assignment to be without merit and it is accordingly overruled.

The judgment of the trial court is affirmed.

TATUM and BYERS, JJ., concur.


author: BYERS, Judge.

text:
    Mahlon BURNS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    July 19, 1979.
    Permission to Appeal Denied by Supreme Court Nov. 13, 1979.

      James S. Patrick, Jr., Hendersonville, for appellant.

      William M. Leech, Jr., State’s Atty. Gen., William 0. Kelly. Asst. State’s Atty. Gen., Nashville, Elmer D. Davies, Jr., Dist. Atty. Gen., Joseph D. Baugh, Jr., Asst. Dist. Atty. Gen., Franklin, for appellee.
   BYERS, Judge.

OPINION

The appellant was convicted of armed robbery and was found by the jury to be an habitual criminal. The mandatory life sentence was imposed.

The appellant says a juror who admitted having prior knowledge of this case should have been dismissed for cause, challenges the admission of certain statements claimed to be hearsay testimony, says the trial judge erred in overruling his motion for continuance, challenges portions of the trial judge’s charge to the jury, says the court erroneously limited proof of Appellant’s addiction to drugs, says the admission into evidence of his prior crimes was error, says the trial judge erred in failing to answer the jury's questions as to intent, and says the Assistant District Attorney’s actions during the trial were improper. He also says the evidence is insufficient to support the verdict.

The judgment is affirmed.

The appellant and one other, William Sweeney (whose case is not now before us), were arrested for the robbery of a drug store in Williamson County, Tennessee. The two entered the store with guns drawn and ordered the pharmacist to put all of his narcotics and amphetamines into a pillow case supplied by the appellant. The police arrived while the robbery was in progress. The appellant was shot in the arm by a police officer as he left the store. The appellant did not deny robbing the pharmacy but says he was so heavily under the influence of drugs at the time he did not know what he was doing.

The appellant claims he was forced to accept a juror who had discussed the case earlier with one of the victims. Mr. James Maxwell was the owner of the vehicle stolen and used in the perpetration of the armed robbery. On voir dire, the juror testified she knew Mr. Maxwell because he had a sister who was a member of the same church as she. She talked to Mr. Maxwell the morning of the trial, and he told her his car had been stolen, but the appellant was not the thief. The trial judge found the juror to be competent and qualified to sit as a juror.

The qualification of a juror is within the trial judge’s discretion and his finding a juror to be qualified will not be disturbed'on review except on a clear showing of an abuse of discretion. Further, there is no showing in the record the appellant exercised all of his peremptory challenges, therefore, he cannot complain of failure to excuse a juror for cause. McCook v. State, 555 S.W.2d 411 (Tenn.Cr.App.1977); Hale v. State, 198 Tenn. 461, 281 S.W.2d 51 (1955). We would also note the appellant was acquitted on the auto theft count of the indictment by a directed verdict, thus there is no showing of prejudice to him from having to accept the juror. Beyond this, the appellant does not dispute his participation in the robbery.

The appellant says certain statements of the nontestifying co-defendant were erroneously allowed into evidence. Appellant says his right to confrontation was violated because his co-defendant was not subject to cross-examination. Appellant has failed to brief this assignment of error and therefore it is waived. Wiley v. State, 552 S.W.2d 410 (Tenn.Cr.App.1977). Furthermore, our examination of the record reveals no instance where any statement of the co-defendant was introduced into evidence except a statement made in the presence of the appellant during the commission of the crime, which was, “there’s the cops.” This is clearly admissible as part of the res gestae.

The motion for continuance by the appellant is addressed to the sole discretion of the trial judge and his ruling on the motion will not be reversed absent a clear showing of an abuse of discretion to the prejudice of the defendant. Baxter v. State, 503 S.W.2d 226 (Tenn.Cr.App.1973). Here there is no showing in the record of any prejudice resulting to the appellant as a result of the trial judge’s denial of the motion for continuance. We would also note the motion for continuance is not supported by an affidavit as required by T.C.A. § 19-413.

The appellant in his attack upon the charge of aggravated assault given as a lesser included offense of • armed robbery relies upon State v. Staggs, 554 S.W.2d 620 (1977). Appellant’s reliance on Staggs is misplaced. Staggs dealt with lesser offenses of assault with intent to commit robbery under T.C.A. § 39-607. Here, the appellant is charged with armed robbery under T.C.A. § 39-3901. There was no error in the trial judge’s charging aggravated assault as a lesser included offense of armed robbery.

The appellant assigns several errors dealing with the trial judge’s charge on the habitual criminal statute. There was no objection made to the trial judge’s charge as given nor does the record indicate any special requests on charges were made. Therefore, any error based on this assignment is waived. Moreover, we have examined the trial judge’s charge on the habitual criminal statute and find it to be a full and correct charge of the law.

The appellant says the jury should have been instructed on the issue of involuntary intoxication. The appellant claims he is a drug addict and because of his addiction he is compelled to take drugs. He contends this compulsion caused him to commit this crime while in a state of involuntary intoxication.

“To constitute involuntary intoxication within the rule making such intoxication an excuse for what would otherwise be crime, the influence inducing accused to drink must be such as to preclude his exercise of independent judgment and volition, as by fraud or duress; and in the absence thereof, an accused may not successfully plead involuntary intoxication because he drank at the request or suggestion of another, as where the liquor was furnished accused by, or at the request of, the person against whom the crime was committed, or because he drank to relieve physical pain, or from an uncontrollable desire caused by long indulgence of the appetite.!’ See 22 C.J.S. Criminal Law § 69.

This rule is equally applicable when the subject is intoxication by narcotic drugs. Ingestion of drugs caused by compulsion resulting from a long history of drug abuse does not constitute involuntary intoxication under the rule we have stated.

There is no evidence in the record that Appellant did not know what substances he was ingesting nor that he ingested those substances under fraud or duress. The appellant did hot introduce evidence to show he was involuntarily intoxicated, therefore, the trial judge did not err in refusing to charge on this issue.

The appellant says the evidence is insufficient to support the verdict because his intoxication at the time of the robbery was so severe he was unable to form the intent necessary to support his conviction. The victim of the robbery administered first aid to the appellant after he had been shot by the police. The victim said the appellant did not appear to be in pain. The appellant testified he had been using demarol and morphine heavily for months prior to this crime and had “shot up” some twelve hours before the robbery. However, none of the appellant’s witnesses had ever seen the appellant take any drug, although each of them had seen the appellant when he was under the influence of either drugs or alcohol.

The jury did not accept the appellant’s evidence on this. Further, intoxication at the time of the crime is no defense to the charge in this case.

Intoxication is a defense on a charge of murder in the first (1st) degree. State v. Bullington, 532 S.W.2d 556 (Tenn.1976). Beyond that offense, voluntary intoxication is not regarded as a defense to a crime, Bradford v. State, 208 Tenn. 500, 347 S.W.2d 33 (1961); Walden v. State, 178 Tenn. 71, 156 S.W.2d 385 (1941), unless the intoxication causes an accused to be unable to distinguish right from wrong, Thomas v. State, 201 Tenn. 645, 301 S.W.2d 358 (1957); Atkins v. State, 119 Tenn. 458, 105 S.W. 353 (1907); Cornwell v. State, 8 Tenn. 147 (1827), by reason of settled insanity.

The question to be determined on the issue of settled insanity is whether “. . . as a result of mental disease or defect [the accused] lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.” Graham v. State, 547 S.W.2d 531 (Tenn.1977), which in essence would mean the accused was unable to form the intent to commit the crime.

The appellant in this case did not introduce any evidence to show he was not guilty by reason of a substantial impairment of his mental faculties. No medical evidence was offered on the issue.

Intent may be inferred from the surrounding facts and circumstances. Prince v. State, 542 S.W.2d 842 (Tenn.Cr.App.1976); Hall v. State, 490 S.W.2d 495 (Tenn.1973). The evidence was sufficient for the jury to find that the appellant may have been intoxicated but not to such an extent that he was unable to form the specific intent required for the crime of armed robbery. The jury rejected the appellant’s claim that he was unable to form the specific intent to commit this crime because of intoxication. This finding is supported by the evidence.

Contrary to the appellant’s claim, the record shows the appellant was allowed to testify as to his prolonged use of drugs over a period of several months prior to the robbery. Further, Appellant’s witnesses were allowed to testify they had seen the appellant when he was under the influence of drugs three to four months before the robbery. Appellant was not limited in his proof on this issue by the trial court.

The trial court held a jury-out hearing to determine whether prior convictions of Appellant should be allowed into evidence. Two burglary convictions were admitted; an escape charge was not. The record reflects the completion of the sentences were within ten (10) years of the present offense. Neither of the burglaries were remote in time as calculated by the guidelines set forth in State v. Morgan, 541 S.W.2d 385 (Tenn.1976), which adopts the later of the date of commission of the crime or the date of completion of the sentence for the commission of the crime.

During deliberations, the jury returned to open court with a question concerning the meaning of reasonable doubt. The trial judge did not give any further instructions. He told the jury to reread that portion of his charge dealing with reasonable doubt. We have examined the charge given by the trial court and find it to be a complete and correct statement of the law. Further instruction was unnecessary.

During opening argument, the Assistant District Attorney characterized this armed robbery as “a cruel and heartless act that endangered the lives of these people.” On objection by defense counsel, the Assistant District Attorney was cautioned not to get into argument during the opening statement. This statement by the Assistant District Attorney does not rise to the level of prejudicial error. During closing argument the Assistant District Attorney told the jury the appellant’s prior convictions should be considered as reflecting on the appellant’s credibility. There was no objection made to this statement. Further, it is a correct statement. There was no error in the comments by the Assistant District Attorney.

Also in closing argument, the Assistant District Attorney remarked that the appellant acted “like a professional during the course of the robbery.” The appellant had attempted to defend himself by saying he was heavily intoxicated at the time of the robbery. The statement by the Assistant District Attorney was in rebuttal to that argument and was not error. The appellant also claims the Assistant District Attorney improperly questioned him during the habitual criminal trial concerning his army discharge and a prior robbery at the same drug store. These questions were proper under State v. Morgan, supra.

The appellant says it was error for the Assistant District Attorney, in final argument on the habitual criminal charge, to say “What time do you think he is going to serve on this armed robbery? How much time do you think he is going to serve?” It is improper for the State to comment on parole possibilities in final argument. However, the fact that defense counsel first brought this matter to the attention of the jury in his final summation, and the overwhelming evidence against Appellant on the habitual criminal charge, leads us to the conclusion any error in the final argument was harmless.

In summation, the appellant committed an armed robbery which even he does not question. He had, without question, become an habitual offender under the statute so providing. He received a fair trial on the issues. The alleged errors do not rise to the level claimed on appeal, the evidence against him leaves no question of his guilt and the record shows he received a fair trial.

DWYER and DUNCAN, JJ., concur.