author: BROCK, Chief Justice.

text:
    Frank C. DRINKARD, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    July 30, 1979.

      Hughie Ragan, Jackson, for petitioner.
    Robert A. Grunow, Asst. Atty. Gen., Nashville, for respondent; Brooks McLe-more, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

BROCK, Chief Justice.

Defendant, Prank C. Drinkard, was convicted of simple possession of marijuana and received a suspended sentence of eleven months, twenty-nine days. The Court of Criminal Appeals affirmed the conviction and defendant petitioned this Court for cer-tiorari review.

Although defendant raises several issues, we deem it necessary to consider only his claim that the lower courts erred in holding that police had a right to impound his automobile and conduct a warrantless search of the vehicle when at the time of his arrest for a traffic violation defendant sought permission to let his passenger companion take the car as an alternative to impoundment. We find that under the circumstances here presented, this search cannot be sustained as an inventory search but was an unreasonable investigatory search and an invasion of defendant’s justifiable expectation of privacy.

On the night of November 10, 1976, defendant was riding in his car with a friend when he was stopped by police on suspicion of drunk driving. Defendant was placed under arrest for driving while intoxicated and informed that, pursuant to the policy of the Jackson Police Department, his car would be towed in and an inventory search of its contents conducted. Defendant requested that his female companion be allowed to drive the car away. The arresting officer refused this request on the grounds that the woman was neither the owner of the car nor the defendant’s wife. Although the woman had a cast on one of her legs, the arresting officer testified that the cast was not a factor that he considered in refusing defendant’s request to let her take custody of the car. Defense counsel questioned the officer about this matter:

“Q. So, now, the girl at that time, as far as you could tell, was capable of driving a car?
“A. Considering she had a cast on her leg, I guess she could.
“Q. A cast.
“A. I don’t know whether she could or not—
“Q. Well, but there was no question raised that she could not drive the car except the fact that ya’ll were taking the car in?
“A. Well, she could not drive it because she did not have the authority as our department determines by our policy.
“Q. The only reason that kept her from driving the car as far as you are considering at this time was that you could not turn the car over to her?
“A. Correct.
“Q. And she was willing to drive the car.
“A. Right.”

The officer had testified previously on direct examination that the woman was not intoxicated and that “[s]he was able to function with coordination pretty good.”

Prior to the arrival of the wrecker, police conducted a complete search of defendant’s car while defendant was seated in the back of the police car, and discovered a closed box on the front seat and a rolled-up grocery sack in the trunk, both containing what appeared to be marijuana.

At trial, defendant objected to admission of the marijuana as the product of an illegal search on grounds that the officer had no probable cause to believe there was contraband in the automobile, and the officer did not have lawful custody of the vehicle. The trial judge overruled the motion.

In affirming defendant’s conviction, the Court of Criminal Appeals found the case controlled by South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The appellate court also cited T.C.A., § 59-1018, requiring that any person arrested for driving while intoxicated be taken immediately before a magistrate. It further found that the officers had acted reasonably in following standard police regulations.

Courts throughout the nation have given substantial consideration in the past few years to the circumstances under which police may or may not impound automobiles and then conduct an inventory of the contents, consistent with constitutional protections against unreasonable searches and seizures. See, e. g., Annot., 48 ALR 3d 537 (1973). This Court has not had occasion to consider the issue in a context comparable to the instant case. In Capps v. State, Tenn., 505 S.W.2d 727 (1974), an impoundment and inventory search were upheld on grounds that the car was seized under authority of the Contraband Seizure Act, 49 U.S.C.A. § 781 et seq. That act requires that automobiles used to transport contraband be seized and forfeited. In Capps, supra, the contraband was an illegally sawed-off shotgun plainly visible to the arresting officer from outside the car. The subsequent inventory search was directed by a federal agent called by local police. The problem in the instant case does not extend to a consideration of the limited inventory search that law enforcement officials may conduct once an automobile is in their custody under force of law, as in Capps v. State, supra. The problem for resolution here concerns whether the automobile ever lawfully came into the custody of the police, thus permitting a subsequent inventory search. The facts here presented compel the conclusion that there was no lawful impoundment in the first instance.

The decision of the United States Supreme Court in South Dakota v. Opperman, supra, has limited application to the case at bar. The issue in Opperman concerned the constitutionality of a “routine inventory search of an automobile lawfully impounded.” Id., 428 U.S. at 365, 96 S.Ct. at 3095. The vehicle in Opperman had been parked on the street in a part of town where on-street parking was prohibited. The car was ticketed twice, once at 3:00 a. m. and again at 10:00 a. m., and was finally towed to the city impoundment lot shortly thereafter. Police conducted a routine inventory search of the car at the lot and discovered a bag of marijuana in the glove compartment. The Court broadly upheld police impoundments of vehicles “[i]n the interests of public safety” and “community caretaking functions” such as towing away cars after automobile accidents and ordinance violations which jeopardize “the public safety and the efficient movement of vehicular traffic.” 428 U.S. at 368-69, 96 S.Ct. at 3097. The Court justified the routine inventory search that commonly follows impoundment as having three purposes: protection of the owner’s property while in police custody; protection of police against claims of lost property; and protection of police from potential danger. Id. at 369, 96 S.Ct. at 3097.

Although the Opperman plurality stated that “caretaking procedures have almost uniformly been upheld by the state courts,” 428 U.S. at 369, 96 S.Ct. at 3097, an increasing number of jurisdictions are scrutinizing the facts of each case to determine if the asserted need of the police to impound and search a car outweighs the constitutionally protected interest of the citizen in the privacy of his or her automobile and the personal possessions contained therein. See, e. g, State v. Boster, 217 Kan. 618, 539 P.2d 294 (1975); State v. Hatfield, 364 So.2d 578 (La.1978); State v. Goodrich, 256 N.W.2d 506 (Minn.1977); State v. Slockbower, 79 N.J. 1, 397 A.2d 1050 (1979); State v. Ercolano, 79 N.J. 25, 397 A.2d 1062 (1979). See also, People v. Nagel, 17 Cal.App.3d 492, 95 Cal.Rptr. 129 (1971); City of Danville v. Dawson, 528 S.W.2d 687 (Ky.1975); Dixon v. State, 23 Md.App. 19, 327 A.2d 516 (1974); State v. Singleton, 9 Wash.App. 327, 511 P.2d 1396 (1973).

The guideline that has been persuasively applied in numerous cases, and with which we are in agreement, is that if the circumstances that bring the automobile to the attention of the police in the first place are such that the driver, even though arrested, is able to make his or her own arrangements for the custody of the vehicle, or if the vehicle can be parked and locked without obstructing traffic or endangering the public, the police should permit the action to be taken rather than impound the car against the will of the driver and then search it. Just cause to arrest the driver is not, alone, enough; there must also be reasonable cause to take his vehicle into custody.

The rule was succinctly expressed in State v. Bales, 15 Wash.App. 834, 552 P.2d 688 (1976), in which defendant was stopped for speeding and arrested on an outstanding warrant. His car was impounded despite his plea to have a friend pick up the vehicle within a few minutes and after giving police the friend’s telephone number. The court stated:

“When a friend or relative is available to move a vehicle for a defendant just arrested on a traffic charge, the arresting officer is not justified in calling for an impoundment absent other circumstances. . Impoundment of a citizen’s vehicle following his or her arrest on a traffic charge is inappropriate when reasonable alternatives to impoundment exist. To permit a subsequent warrantless inventory search to be accomplished thereby would be improper.”

In Virgil v. Superior Court, 268 Cal.App.2d 127, 73 Cal.Rptr. 793 (1968), a case quite similar to the present case on the facts, the defendant was stopped and arrested for reckless driving. He had two friends in the car with him. Police impounded the car and upon making an inventory search discovered marijuana under the front seat. The court refused to sanction the search:

“The burden was upon the prosecution to justify the search. (Citations omitted.) It was therefore its burden to explain that an impounding of the car was necessary. Virgil was not alone. No reason appears why his friends could not have taken charge of the vehicle. . The officers did not consult Virgil’s wishes or the willingness of his companions to drive the car to a place of safekeeping (the only legitimate purpose under the facts known at the time for which custody could have been taken).”

In another similar case, State v. Gaut, 357 So.2d 513 (La.1978), the defendant was arrested for drunk driving and requested that a passenger be permitted to drive the car away for him. Police refused, saying later that the passenger also “smelled of alcohol,” but this observation was never satisfactorily substantiated at trial. They impounded the car and found marijuana as a result of inventorying the contents. The court held the search to be invalid.

It does not appear in the present case that the State has carried the burden of showing that the impoundment here was necessary. “[T]he ultimate issue is whether under all the facts and circumstances of the particular case there were reasonable grounds for an impoundment . . The burden is on the State to present sufficient evidence to show the reasonableness of the impoundment.” State v. Bales, supra at 689, quoting State v. Greenway, 15 Wash.App. 216, 547 P.2d 1231 (1976). See Virgil v. Superior Court, supra, at 796. The regulations of the Jackson Police Department certainly did not have the force of law, and the circumstances showed an obvious reasonable alternative to impoundment, leaving the car in the care of the defendant’s passenger. Police testimony indicates that there was no reason why the woman could not have driven the car away. She had defendant’s consent; she was not intoxicated; although she had a cast on her leg, she was capable of getting out of the car and walking around outside of it while talking to police; the cast was not given as a reason for denying defendant’s request. Furthermore, the police did not consult defendant’s wishes or consider his willingness to leave the car parked and locked alongside the road until either he or his passenger could make other arrangements.

The application of the foregoing principle to the present case does not conflict with United States v. Opperman, supra. The owner of the car in Opperman, supra, was not present to make other arrangements for the vehicle or his personal possessions at the time the police towed in the car. 428 U.S. at 375, 96 S.Ct. at 3100.

The State argues in its brief that an intoxicated driver is per se incompetent to effectively authorize another person to take custody of his or her automobile and to release police from civil liability resulting from compliance with such a request. This argument is unpersuasive; the fact of intoxication alone has been held not to render a person incompetent to submit to chemical tests for alcohol content of the blood, to consent to a search of his or her vehicle or to make an admissible confession. See, e. g., Robinson v. State, 208 Tenn. 521, 347 S.W.2d 41 (1961); Pyburn v. State, Tenn.Cr.App., 539 S.W.2d 835 (1976); Fee v. State, Tenn.Cr.App., 497 S.W.2d 748 (1973); Williams v. State, Tenn.Cr.App., 491 S.W.2d 862 (1972); State v. Strange, La., 334 So.2d 182 (1976). Actually, it is the degree of the driver’s intoxication that should be determinative of this issue; certainly one may be mentally competent to give valid consent to a disposition of his or her automobile, and yet be too intoxicated under the statute, T.C.A., §§ 59-1031, 59-1047, to lawfully operate an automobile. The State has made no showing in the present case that defendant was too intoxicated to authorize his companion to take custody of the car.

As the Louisiana Supreme Court has pointed out, it would be a simple matter to alter the inventory form currently in use to provide for signed consent by the motorist to leave his car parked, locked and uninven-toried, or its custody given to a friend, family member or personally chosen wrecker service. State v. Gaut, supra, at 516 n.l. The form could disclaim any police liability for subsequent loss or damage of property. Our courts have recognized the efficacy of signed consent forms in other contexts. See, e. g., Hawkins v. State, 543 S.W.2d 606 (Tenn.Cr.App.1976). The Louisiana court noted:

“The justification for the inventory search of the vehicle is ostensibly to protect the occupant of the vehicle against loss of his property or the law enforcement agency against the occupant’s claim for failure to guard against such loss. This justification has a very hollow basis indeed, if the occupant disclaims that any valuables are involved and is willing to consent to the agency’s failure to afford him such protection by an inventory search.” State v. Gaut, supra at 516.

We hold, therefore, that the totality of the factors here present indicates that the evidence seized from Drinkard’s automobile was the product of an unreasonable search in violation of the Fourth Amendment and Article I, Section 7, Constitution of Tennessee. The trial court erred in admitting the evidence over defendant’s objection, and the Court of Criminal Appeals erred in affirming that decision. The case is remanded to the trial court for a new trial.

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

      . Sections A through F of Article 14, Rules and Regulations of the Police Department, Jackson, Tennessee, were read into the record. Section A provides “if any person is arrested while in their vehicle, if the arrest is in conjunction with the person being jailed, the vehicle will be towed by a wrecker service.” Section C requires that “all vehicles towed in, except in the case of a traffic accident, will be inventoried as completely as possible and the inventory card filled out.” According to Section F, “the wrecker of the month will be called to tow all vehicles if an arrest is made, and the city is held liable for that person’s vehicle.”

      . The State has not contended that the search was incidental to the arrest of defendant. It could not have been, since the interior and trunk of defendant’s automobile were not areas within defendant’s immediate control as he was seated in the back of the police car at the time of the search. See, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Rhinehimer v. State, 487 S.W.2d 669 (Tenn.Cr.App.1972).


source: Caselaw Access Project

author: MATHERNE, Judge.

license: Public Domain

text:
    Jere C. GORDON, Co-Executor, Mrs. Lessie T. Gordon, Mrs. Helen T. Gallella and Ransom Thornton, Plaintiffs-Appellants, v. Vance THORNTON, Co-Executor, Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section.
    Feb. 9, 1979.
    Certiorari Denied by Supreme Court May 7, 1979.
    Thomas E. Harwood, Trenton, for plaintiffs-appellants.
    Malone & Holmes, Trenton, for defendant-appellee.
   MATHERNE, Judge.

Having accounted for all other properties of the testator, Eva T. Fonville, the co-executors of that estate differ on the proper distribution of 32 shares of the common stock of the Citizens State Bank, Trenton, Tennessee, and 7 shares of the common stock of the Merchants Bank, Dyer, Tennessee. The defendant co-executor, Vance Thornton, claims the shares of stock as surviving donee third party beneficiary by virtue of the fact that the stock certificates were issued to “Mrs. Eva Fonville or Vance C. Thornton.” The plaintiff co-executor, Jere Gordon, claims that the shares of stock are a part of the estate of the testator and must be divided as set out in the residuary clause of the will.

The judge of the Probate Court of Gibson County, Tennessee, held that the shares of stock would be distributed according to the terms of the will. The defendant co-executor appealed that decision to the Chancery Court sitting in Gibson County, Tennessee. The Chancery Court held that the shares of stock passed to the defendant co-executor as the surviving donee third party beneficiary under contracts between the banks and the testator providing for the issuance of the stock certificates in the names of “Eva Fonville or Vance Thornton.” The plaintiff co-executor appeals that ruling to this court.

I.

Eva T. Fonville died testate on May 10, 1969, and her will dated October 23, 1963, was admitted to probate on May 13, 1969. The plaintiff, Jere Gordon, an attorney and nephew of the testator, and Vance Thornton, a brother and employee of Citizens State Bank, qualified as co-executors of the estate as provided in the will. The will provided that the residual estate be equally divided between the testator’s two brothers and two sisters, one brother being Vance Thornton and one sister being the mother of Jere Gordon. Immediately following their appointment, the co-executors came into disagreement over the assets of the estate. The parties agree that all matters have been settled except the distribution of the shares of stock herein referred to.

Each bank had, many years ago, issued the stock certificates in the name of Eva Fonville. On March 9,1968, the Farmers & Merchants Bank, Dyer, Tennessee, issued its Certificate No. 375 for seven shares of its common stock to “Mrs. Eva Fonville or Vance C. Thornton.” Vance Thornton testified that this certificate was issued in replacement of the original certificate issued to Eva Fonville. He stated that he went to the bank with Eva Fonville and that the officials of the bank reissued the certificate as Eva Fonville desired.

The original stock certificates from the Citizens State Bank, Trenton, Tennessee, were also issued in the name of Eva Fon-ville. On September 15, 1967, the bank issued its stock Certificate No. 33 for six shares of its stock and Certificate No. 32 for twenty-six shares of its stock to “Eva L. Fonville or Vance Thornton.” Vance Thornton testified that these certificates were issued in replacement of certificates originally in the name of Eva L. Fonville. He stated that the bank officials reissued the stock certificates as desired by Eva Fonville.

Vance Thornton testified that Eva Fon-ville told him that she wanted to draw the dividends on the stock for her lifetime and that at her death she wanted him to own the stock. He stated that as a result of this statement by Eva Fonville, he took her to the two banks and the stock was reissued as herein noted. The record establishes that Eva Fonville received no independent advice from anyone at either bank and she was not represented by an attorney. The record also establishes, and Vance Thornton admitted, that he attended to all of the business of Eva Fonville for many years prior to her death. The only exceptions to Vance Thornton’s sole management of Eva’s affairs were instances where Jere Gordon made out her income tax returns based upon information given him by Vance Thornton and an instance where Gordon wrote a deed, a trust deed, and a note growing out of a sale of some land which Eva Fonville effected a few months before her death. Eva Fonville was 65 years of age when she died, and she had been in poor or frail health for many months prior to her death.

The only witness who stated that Eva Fonville wanted Vance Thornton to have the bank stock was the wife of Vance Thornton. This witness stated that Eva told her, at a time long before the recorded transfer of the stock certificates, that she had given Vance the bank stock so that it would eventually belong to the child of Vance Thornton. This witness did not testify before the probate court. We note her obvious interest in the litigation and the fact that she placed the date of the gift to Vance Thornton long before the transfer of the stock.

It is of importance to note, and the chancellor held, that the reissued certificates of stock were in the possession of Vance Thornton. All dividends declared were paid by check payable to “Eva Fonville or Vance Thornton” from the time the stock was reissued until the death of Eva Fonville. We conclude from the record that Vance Thornton endorsed these dividend checks after the stock had been reissued. There is no showing of where the money went, but we assume it was placed in the account of Eva Fonville.

On the issue of the ownership of the shares of stock, the chancellor stated the position of the parties and his conclusion as follows:

The present stock certificates which were in defendant’s possession represent the original stocks together with the increases due to stock splits, and stock dividends. These were issued and carried on the stock books in the names of “Eva Fonville or Vance Thornton.”
The plaintiff insists that the case should be determined by the law applicable to gifts inter vivos. He takes the position that the stocks were originally the property of Eva Fonville; that defendant was confidante and fiduciary to Eva Fonville; that the transfer of the stock to him creates a presumption of fraud or undue influence; that the burden is upon the defendant to refute this presumption and that he has failed to do so by preponderance of the proof.
The defendant predicates ownership of the stock upon the hypothesis that he is the third-party beneficiary of contracts between Eva Fonville and the respective banks.
The stock certificates speak for themselves.
There is no direct evidence of any fraudulent action or any undue influence asserted by defendant in respect to the transfers nor is there any fact or circumstance surrounding the transfers which is suggestive of fraud. On the contrary, the proof as a whole tends to negate such an inference. To prevail, the plaintiff must rely upon a presumption of law which is not sustained under the clearly shown facts since the transaction was one of contract and no gift inter vivos is involved.

The chancellor relied upon the case of Victory v. Victory (1965) 55 Tenn.App. 264, 399 S.W.2d 332. There, a mother had caused her checking account, her savings account, and a certificate of 1,000 shares of preferred stock in Tennessee Farmers Cooperative to be changed from her name to that of herself and/or her son, J. W. Victory. After the mother’s death the son disclaimed any interest in the bank accounts, but he did claim ownership of the certificate of stock. The son testified that his mother told him that she had arranged for the stock to be his upon her death. The mother retained possession of the stock certificate during her lifetime. The court held that J. W. Victory could only claim as survivor because control over the certificate remained with the mother and the intention to grant a present interest in the certificate was absent and, therefore, there was not a valid gift inter vivos of the stock. The court held, however, that there was a contract between the mother and the corporation that created in the son a right of survivorship in the stock as a third party donee beneficiary on the authority of Peoples Bank v. Baxter (1956) 41 Tenn.App. 710, 298 S.W.2d 732.

There are obvious differences in the factual situation in Victory and the case at bar. But, assuming that Vance Thornton can claim only as a third party donee beneficiary to contracts between Eva Fonville and the two banks, we must examine closely the chancellor’s ruling that the presumption of law relied upon by the plaintiff can not be sustained because the transaction was one of contract and no gift inter vivos is involved.

All parties, including Vance Thornton, admit that Vance Thornton stood in a fiduciary capacity to Eva Fonville for many years prior to her death. “It is well established that when two parties enter into a confidential or fiduciary relationship and the dominant party receives a gift or other benefit from the other party a presumption arises that some improper advantage was taken . . either of the confidential relation existing . . . or of the weakness and frailty of the party from whom the benefit was received, . . thus rendering the transaction invalid.” Richmond v. Christian (Tenn.1977) 555 S.W.2d 105. It is also established that the presumption of invalidity extends to all dealings between persons in fiduciary and confidential relations, and embraces gifts, contracts, sales, releases, mortgages and other transactions by which the dominant party obtains a benefit from the other party. Williams v. Jones (1963) 54 Tenn.App. 189, 388 S.W.2d 665; Roberts v. Chase (1942) 25 Tenn.App. 636, 166 S.W.2d 641.

We overrule the chancellor’s holding that the presumption of invalidity does not arise in this lawsuit because the transaction was one of contract and not a gift inter vivos. A donee third party beneficiary as defined at Restatement, Contracts, §§ 133-147 (1932), involves making a gift to the beneficiary or conferring upon him a right against the promisor to some performance neither due nor supposed or asserted to be due from the promisee to the beneficiary. The facts of this lawsuit establish the donee third party beneficiary (the dominant party) as the recipient of a gift just as if the gift had been made directly to him by the dominated party. It would be highly inequitable to rule that the dominant party could avoid the presumption of invalidity by personally escorting the other party to a third person for the purpose of that party contracting with the third person in such manner as to pass the benefit to the dominant party. We hold that the presumption of invalidity does exist in this lawsuit.

We must now determine if the presumption of invalidity has been overcome. The burden rests upon the fiduciary to overcome the presumption. Roberts v. Chase, supra. The presumption of invalidity can be overcome only by clear and convincing proof of fairness in the transaction. Richmond v. Christian, supra. One means of overcoming the presumption is by proof that the donor received independent advice, but proof of independent advice is not necessary in all cases. Richmond v. Christian, supra. In our determination of this issue, we will consider the totality of the evidence with respect to the dealings and statements of Vance Thornton, both before and after the transactions complained of, as that evidence may relate to the removal of the presumption of invalidity.

After the complaint in this lawsuit was filed in the probate court and before the hearing in that court, Vance Thornton submitted to the residuary devisees a copy of an instrument titled Final Report and Settlement of Vance Thornton, Co-Executor. This instrument reveals the following assets, disbursements, net estate and proposed distribution of the net estate:

Receipts
Balance in Citizens State Bank $ 3,143.89
Savings Account 6,698.50
Certificate of Deposit 16.290.30
Total $26,132.69
Disbursements
[a listing of disbursements
which total $3,183.54] (3,183.54)
Distribution to Beneficiaries
To Vance C. Thornton $11,463.11
To Ransom Thornton 3,828.68
To Helen T. Gallella 3.828.68
To Lessie T. Gordon 3.828.68
Total $22,949.15 $22,949.15

It is to be noted that Vance Thornton did not include the bank stock in this accounting; he was claiming it as his property. We note that the checking account in Citizens State Bank was only $39.65 short of being enough to pay all the listed disbursements. The checking account, savings account and the certificates of deposit which originally had been in Eva’s name alone had been changed to the joint names of Eva Fonville and Vance Thornton. Under this accounting Vance Thornton was obviously claiming one-half of all those amounts because the proposed payment to him of $11,463.11 came within $11.46 of being one-half of the net estate of $22,-949.15. The three other devisees refused to accept from Vance Thornton checks drawn in the amounts shown for distribution to them as set out in this accounting.

On May 4,1971, before the hearing in the probate court, Vance Thornton submitted to the residuary devisees another proposed final accounting which was accepted by them insofar as the assets therein stated were concerned. This accounting states the same figures for total assets, disbursements and net estate as did the prior accounting. This last accounting, however, proposed to distribute the $22,949.15 equally among the four devisees with each, including Vance Thornton, receiving $5,737.29.

Vance Thornton testified that Eva Fon-ville placed the checking account, savings account and certificates of deposit in their joint names so that he could handle her affairs should she become disabled. He testified that she did not intend for him to have those amounts and he claimed only his share thereof. He failed to explain his claim to one-half of those amounts as reflected by his first proposed final accounting as co-executor.

Jere Gordon testified that Vance Thornton told him that Eva Fonville had placed the stock certificates in his, Thornton’s, name to prevent Ernest Fonville from getting it. Ernest Fonville was the deceased husband of Eva Fonville and he had been dead many years before this statement was made by Vance Thornton. Vance Thornton testified, but he was not questioned concerning the statement. However, he did not deny making the statement.

From the entire record we conclude that Vance Thornton thrashed about from position to position in an effort to claim as much of the estate of Eva Fonville as he thought he could get by with. If the chancellor held that the presumption of invalidity in the transfer of the bank stock was overcome, we hold that the evidence preponderates against that finding. We can not find that clear, cogent and convincing evidence that would overcome the presumption of invalidity. To the contrary, the testimony and positions taken by Vance Thornton in regard to all his dealings with the estate of Eva Fonville place the preponderance of the evidence in favor of the presumption of invalidity.

The decree of the chancellor is reversed. The judgment of the probate court is affirmed and this cause is remanded to the Probate Court of Gibson County, Tennessee, for the enforcement of its judgment that the shares of bank stock herein involved or the proceeds thereof be distributed equally among the four residuary devisees named in the last will and testament of Eva Fonville, deceased. The costs in the Chancery Court and in this Court are adjudged against Vance Thornton, individually, and execution may issue therefor if necessary. The cost in the probate court will be there adjudged.

SUMMERS and EWELL, JJ., concur.


author: FRANKS, Judge.

text:
    John FISER et al., Plaintiffs-Appellants, v. CITY OF KNOXVILLE et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    Feb. 16, 1979.
    Certiorari Denied by Supreme Court July 2, 1979.

      McCord & Cockrill, P. C., Knoxville, for plaintiffs-appellants.
    Jon Roach, W. Mitchell Cramer and Robert Finley, Knoxville, for defendants-appel-lees.
   OPINION

FRANKS, Judge.

This appeal presents for determination the scope of judicial review of the exercise of police powers by municipalities in regulating the use of real'property by zoning ordinances.

Plaintiffs own approximately 7 acres abutting Kingston Pike in the City of Knoxville; the acreage is presently zoned for single family residences, an R-l classification. In early 1976, in an effort to obtain approval for constructing an apartment complex on the acreage, plaintiffs made application for a change in zoning from the existing R-l to an R-2 classification. The Knoxville-Knox County Metropolitan Planning Commission recommended against the rezoning application and, subsequently, on April 6, 1976, the requested change was rejected by the Knoxville City Council on a split vote; no appeal was taken from that action.

On July 14, 1976, plaintiffs again petitioned for rezoning, requesting an R-3 classification (which allows a greater density of population than the R-2 classification previously requested). The petition was otherwise the same as the prior application. The commission again voted against recommending plaintiffs’ proposed rezoning, and plaintiffs then requested the city council to rezone the acreage.

On the date of the hearing before the council, plaintiffs’ attorney requested three members of the council recuse themselves from participating in the consideration of the zoning petition on the grounds that those councilmen and women had, prior to the hearing, made statements or commitments, for personal or political reasons, to vote against plaintiffs’ rezoning petition. The council members declined the request and, following the presentation, the council voted 7-2 to deny the zoning request. Plaintiffs by certiorari appealed the case to the chancery court where the Chancellor permitted plaintiff, Fiser, to testify to pre-hearing statements made by individual members of the council. Two councilmen were called as witnesses by the defendants and generally refuted statements attributed to them by the plaintiff.

The Chancellor determined that two members of the council, Rex Davis and M. T. Bellah, should have recused themselves from considering the case. The Chancellor found, in the absence of these councilmen’s testimony, that Davis had apparently made his decision to oppose the rezoning application upon the advice of the editor of the Knoxville News Sentinel, to the effect that a vote in favor of the petition would be “political suicide” and Bellah had stated to the plaintiff that he, Bellah, personally approved of the proposed project but felt compelled to abide by a signed commitment made previously to a local homeowners’ association. The substance of the commitment was a pledge to vote against any rezoning on Kingston Pike in a stated area which encompassed the proposed project. The Chancellor rejected plaintiffs’ challenges to three other council members. The Chancellor, in dismissing plaintiffs’ petition, concluded the elimination of the votes of the two disqualified members left a majority of the councilmen voting against the petition.

Plaintiffs assign as error the failure of the Chancellor to disqualify the three challenged council members and insist the action of the council should be voided due to the participation of two disqualified members and also seek alternative relief, charging either the Chancellor should have rezoned the property or remanded the petition to the council for a further determination.

Plaintiffs base their claim for relief upon the theory that the zoning process is administrative in nature, in which the city council’s role is quasi-judicial and reason under this premise that members of the council sit as impartial arbiters and are required to make their decision solely on the basis of the “facts” presented at the hearing on the petition.

This underlying basis is a misconception of the law. Plaintiffs’ argument confuses and fails to differentiate between a legislative as distinguished from an adjudicative act. An example of an administrative or adjudicative proceeding in a zoning matter is found where a board is established to hear and decide appeals relative to the application of zoning provisions to individual circumstances. But boards of this nature are not legislative bodies, as explained in Reddoch v. Smith, 214 Tenn. 213, 379 S.W.2d 641 (1964). In making the distinction, Reddoch, 379 S.W.2d at page 645, states:

It is not a legislative body, but an administrative body. Legislative authority is not delegated to it. Its decision becomes final on the facts, and an appeal therefrom is authorized to court by way of a common law writ of certiorari. .
A board of the kind here under consideration, being an administrative agency, does not have legislative powers and may not review or amend legislatively enacted rules as to uses or amend ordinances under the guise of a variance. This board was created to administer the zoning ordinance but not to formulate and revise it.

The enactment of municipal zoning ordinances in Tennessee has long been viewed as an exercise of legislative police power. Brooks v. City of Memphis, 192 Tenn. 371, 241 S.W.2d 432 (1951); Meador v. City of Nashville, 188 Tenn. 441, 220 S.W.2d 876 (1949); Mobile Home City of Chattanooga v. Hamilton County, 552 S.W.2d 86 (Tenn.App.1976); Bayside Whse. Co. v. City of Memphis, 63 Tenn.App. 268, 470 S.W.2d 375 (W.S.1971).

The limitations on the scope of judicial review of legislative exercises of police power were expressed in the early case of Spencer-Sturla Co. v. Memphis, 155 Tenn. 70, 290 S.W. 608 (1927), where the Supreme Court, considering a zoning regulation, quoted from the earlier case of Motlow v. State, 125 Tenn. 547, 589-590, 145 S.W. 177, 188 (1911):

It is said that the courts have the right to determine whether such law is reasonable. By this expression, however, it is not meant that they have power to pass upon the act with a view to determining whether it was dictated by a wise or a foolish policy, or whether it will ultimately redound to the public good, or whether it is contrary to natural justice and equity. These are considerations solely for the Legislature. In determining whether such act is reasonable, the courts decide merely whether it has any real tendency to carry into effect the purposes designed — that is, the protection of the public safety, the public health, or the public morals — and whether that is really the end had in view, and whether the interests of the public generally, as distinguished from those of a particular class, require such interference, and whether the act in question violates any provision of the state or federal Constitution.

A further elaboration is found in Soukup v. Sell, 171 Tenn. 437, 104 S.W.2d 830 (1937).

[T]he wisdom, policy, injurious tendency, or mischievous consequences of a statute or an ordinance are not open to inquiry on behalf of a burdened taxpayer through judicial proceedings. Moreover, the courts cannot consider alleged improper motives or even fraud as the inducing cause to legislative action, either state or municipal. That is so because the courts cannot invade the legislative department to inquire about motives, but must consider legislative acts, whether by assembly or by municipal board, as fair expressions of the public will. At p. 441, 104 S.W.2d at p. 831.

The Supreme Court has repeatedly rejected attempts to explore the motives behind the enactment of zoning ordinances. White v. Henry, 199 Tenn. 219, 285 S.W.2d 353 (1955); Henry v. White, 194 Tenn. 192, 250 S.W.2d 70 (1952); Davidson County v. Rogers, 184 Tenn. 327, 198 S.W.2d 812 (1947).

Plaintiffs cite no Tennessee cases in support of their position but rely upon and cite a number of cases from other jurisdictions wherein the courts disqualified members of various boards on account of pre-hearing statements or commitments. The authorities relied upon are Daly v. Town Plan & Zoning Commission of Fairfield, 150 Conn. 495, 191 A.2d 250 (1963); Barbara Realty v. Zoning Board of Review of Cranston, 85 R.I. 152, 128 A.2d 342 (1957); City of Naperville v. Wehrle, 340 Ill. 579, 173 N.E. 165 (1930); In re Weston Benefit Assessment Special Road District of Platte County, Missouri, 294 S.W.2d 353 (Mo.App.1956) and Saks & Co. v. City of Beverly Hills, 107 Cal.App.2d 260, 237 P.2d 32 (1951).

The Barbara Realty case involved a board of zoning review whose function was determined by the Rhode Island Supreme Court to be quasi-judicial in nature; The Weston Benefit case involved the action (non-zoning) of a Missouri county court which was denominated an administrative agency by the Missouri Constitution. The legal basis for the disqualification in that case was a specific statutory prohibition against participation by interested members in the decision making process. The Daly case was decided upon the basis of a similar statute. Naperville involved participation in a quasi-judicially appointed board of assessment by an interested party. The Saks case was subsequently overruled by the California Supreme Court in City of Fairfield v. Superior Court of Solano County, 14 Cal.3d 768, 122 Cal.Rptr. 543, 537 P.2d 375 (1975).

The California court had occasion in Fair-field to consider efforts to disqualify several members of a city council from consideration of a zoning matter because of statements made on the issue during the course of an election campaign. In rejecting the challenge, the court quoted from the case of Wollen v. Fort Lee, 27 N.J. 408, 142 A.2d 881 (1958):

[I]t would be contrary to the basic principles of a free society to disqualify from service in the popular assembly those who had made pre-election commitments of policy on issues involved in the performance of their sworn legislative duties. Such is not the bias or prejudice upon which the law looks askance. There is no showing that the minds of these councilmen were not open to conviction in the just fulfillment of what they severally conceived to be a solemn obligation to the community. Otherwise, representative democracy would be subverted, and local self-government denied. Here, for example, the local legislative exercise of the constitutionally-secured land-use control as a police function would be rendered • nugatory for the time being by the election of municipal governors whose revealed views on policy had coincided with the popular will and had evoked popular approval. . . . The contrary rule of action would frustrate freedom of expression for the enlightenment of the electorate that is of the very essence of our democratic society; it would be a negation of the principle of popular sovereignty. 142 A.2d at 888.

Plaintiff, Fiser’s conduct prior to the hearings before the city commission is anomalous with the position he takes before the courts. The record reveals he sought out the members of the council prior to the hearings in an effort to obtain commitments for the rezoning of his property and according to his perception did, in fact, obtain pre-hearing commitments. The foundation of his present complaint is that others engaged in conduct of a similar nature but ultimately were more successful than he in the political process, which graphically portrays the political realities present in the legislative processes.

For the court to go behind the face of an enactment and probe the motives of those entrusted with legislative authority for the purpose of rescinding an enactment would involve the court in the legislative processes reserved to the legislative branch of government under our constitutions. Justice Holmes in Bi-Metallic Co. v. Colorado, (1915) 239 U.S. 441, 445, 36 S.Ct. 141, 142, 60 L.Ed. 372, 375, observed:

General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.

The plaintiff has apparently exercised this power to the extent of his capabilities. In the case sub judice, in a period of less than one year, plaintiff, Fiser,. presented the merits of his rezoning request on a personal basis to the members of the council, prior to and at each hearing, but his appeal to the courts to reverse this legislative judgment, on the basis of motives of the individual councilmen in exercising their legislative prerogatives by casting their votes, is misdirected.

The denial of plaintiffs’ request for rezoning was reasonable and within the legislative discretion of the council. The recommendation of the metropolitan planning commission was against plaintiffs’ request for rezoning; the property is part of a large area zoned for single family dwellings, which is subject to statutory restrictions along Kingston Pike under the Scenic Routes System Act, and other considerations the council could take into account included traffic control and long-range plans for the city.

Under the court’s scope of review, we find plaintiffs’ assignments of error to be without merit. See Brooks v. City of Memphis, 192 Tenn. 371, 241 S.W.2d 432 (1951). The Chancellor’s dismissal of plaintiffs’ petition is affirmed as modified herein and costs incident to the appeal are taxed against the plaintiffs.

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

      . Procedurally, plaintiffs could not request the same rezoning classification until one year had elapsed from the initial rejection.

      . Pre-hearing statements attributed to councilmen include:
      The majority of the people down here, of course, are strong against it. Ah, I would suspect that the vote would be the same as it would be last time. I see no reason for it to be changed. The vote last time was six to three against rezoning. 1 am going to have to vote like, I am going to have to vote like I did last time. I am going to have to vote against it this time.
      In response to a questionnaire on zoning, one successful candidate for the council stated:
      I firmly believe people are smart enough to govern themselves and that neighborhood residents are best qualified to decide the uses they want for themselves and their families. I will remain a supporter of the wishes of the people.

      . Kingston Pike is designated a scenic route “from its intersection with Concord Street and Neyland Drive in the City of Knoxville, westward to the intersection of Kingston Pike with Lyons View Drive.” T.C.A., § 54-2514.


author: DROWOTA, Judge.

text:
    Benjamin Edward YOUNG, Jr., Carolyn L. Young, Plaintiffs-Appellants, v. RELIANCE ELECTRIC COMPANY, the Carborundum Company, Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Feb. 23, 1979.
    Certiorari Denied by Supreme Court July 30, 1979.

      Thomas Wardlaw Steele and Joel M. Lee-man, Gullett, Gilbert, Steele, Sanford & Robinson, Nashville, for plaintiffs-appellants.
    John K. Maddin Jr. and Malcolm L. McCune, Gracey, Maddin, Cowen & Bird, Ward DeWitt, Jr. and Lawrence C. Maxwell, Trabue, Sturdivant & DeWitt, Nashville, for defendants-appellees.
   OPINION

DROWOTA, Judge.

Plaintiffs, Benjamin Edward Young, Jr., and his wife, Carolyn L. Young, brought this products liability action in the Circuit Court of Davidson County to recover for injuries incurred by plaintiffs as a result of a “fire” in the electrical control cabinet of a “shot-peening” machine in which plaintiff, Benjamin Young, Jr., was working during the course of his employment. Plaintiff sues on strict liability and negligence theories. Defendants are the manufacturer of the electrical control panel (Reliance Electrical Co.), the manufacturer of the entire shot-peen machine which includes the electrical control panel (Carborundum Co.) and the installer of the panel (AAA Electric, Inc.). At the conclusion of the trial before a jury the court granted a motion for a directed verdict in favor of AAA Electric, Inc. and took under advisement the motions for directed verdicts on behalf of the remaining defendants. The jury found for plaintiff, Benjamin Young, Jr., in the amount of $60,000.00 and in favor of Carolyn L. Young in the amount of $10,000.00. The trial court then granted defendants motions for a directed verdict and, upon additional defendants’ motions, granted a new trial conditioned on a reversal of the directed verdicts. The conditional motions for a new trial were granted on the ground that the evidence preponderated against the jury verdict. Plaintiffs have appealed the trial court’s action with regard to defendants Reliance and Carborundum but not with regard to AAA Electric, Inc.

Plaintiff makes two assignments of error, one attacking the propriety of the directed verdicts and the other attacking the propriety of the conditional order for a new trial.

I.

The first assignment of error draws us into a familiar inquiry which is well described in the recent case of Holmes v. Wilson, 551 S.W.2d 682 (Tenn.1977).

A post-trial motion for the entry of judgment in accordance with a motion for a directed verdict made during the trial must be gauged by the usual rules relating to directed verdicts. Those rules require that the trial judge, and the appellate courts, take the strongest legitimate view of the evidence in favor of the opponent of the motion, allow all reasonable inferences in his or her favor, discard all countervailing evidence, and deny the motion where there is any doubt as to the conclusions to be drawn from the whole evidence. A verdict should not be directed during, or after, trial except where a reasonable mind could draw but one conclusion. [citations omitted]

551 S.W.2d at 685.

Evidence, sufficient under this standard to go to the jury, may be direct or circumstantial or a combination of the two. Chisholm v. Bohannon, 558 S.W.2d 446 (Tenn.App.1977); Browder v. Pettigrew, 541 S.W.2d 402 (Tenn.1976). In the case of circumstantial evidence the relevant inquiry is could reasonable minds differ on the question whether the evidence equally supports the inconsistent theories of the plaintiff and the defendant. If they could then a directed verdict is improper. Browder v. Pettigrew, supra at 405; Phillips v. Newport, 28 Tenn.App. 187, 187 S.W.2d 965 (1945). With regard to the use of inferences in evaluating the evidence, it is established that a fact may be inferred from circumstantial evidence and such fact may then be the basis of a further inference to the ultimate or sought-for fact. Stinson v. Daniel, 220 Tenn. 70, 414 S.W.2d 7 (1967) and cases there cited.

The bill of exceptions in this two weeks trial is voluminous, consisting of 1398 pages, so for the purposes of this review we will only summarize the salient details.

Plaintiff is a maintenance electrician employed by the Avco Corp. in its Nashville plant. Avco is engaged in the business of constructing the wings of the Lockheed L-1011 airplane. Part of the construction process involves passing aluminum wing parts through a “shot-peen” machine. In this machine the parts are bombarded with small steel shot in order to form the wing, and by compressing the metal, to strengthen the wing. In the same building which contained two such shot-peening machines Avco also operated a skin mill where sheets of aluminum were cut to size, and a burr and blending machine where rough edges and joints on aluminum pieces were ground smooth. These processes generated highly flammable aluminum dust. While ventilation systems were present it appears some aluminum dust escaped into the atmosphere inside the building.

There is evidence to indicate that because of the aluminum dust the electrical control panels for the shot-peening machines were to be housed in relatively “dust proof” cabinets characterized as type 9 or type 12 cabinets by the National Electrical Manufacturers Association. The standards of this Association are incorporated into Ordinance No. 69-839 of the Metropolitan Government of Nashville and Davidson County. There is evidence that the cabinets actually installed are not the type 12 or type 9 which are for use in dusty environments but are type 1 which is for general purpose industrial use.

The electrical controls housed by the cabinets generate heat while operating, requiring some cooling system. The cooling system used in the subject cabinets was the installation of fans on the top of the cabinets which decreased the air pressure in the cabinet causing air from the cabinet’s general environment to be drawn into the cabinet through filter panels near the bottom of the cabinets. There is evidence that dust could fall through the fans when they were not turning and could be drawn through the filters if the filters were not cleaned.

An alternative cooling system would be one in which clear outside air could be forced by fans through air ducts into the cabinets, resulting in higher air pressure inside the cabinets than in the plant and in the movement of air through filters or crevices in the cabinet from inside to outside. It appears either system would allow some dust into the cabinets.

The shot-peen machines have two electrical motors one using 440 volts and the other using 220 volts. The cabinets contain circuits for both voltages each carrying high amperages.

The defendants furnished detailed manuals of instructions with the machine and control cabinets. The instructions included directions to cut off all power before opening, directions for cleaning the door filters and a specific direction to vacuum clean a cabinet whenever visible dust appears upon the controls.

On the day of the injury plaintiff was performing tests inside the cabinet, trying to discover the cause of a blown fuse in the 220 volt circuit. He had turned off the 220 volt line but not the 440 volt line. Plaintiff was following the 220 volt line through the cabinet when there was a sudden explosion and fire. Plaintiff suffered severe burns for which he and his wife now seek to recover.

The primary dispute between the parties is the cause of the burns. Defendants maintain an electrical arc from the live 440 volt line was responsible. Plaintiffs contend a flash aluminum dust fire was the cause.

Engineering experts testified that in their opinion the burns were caused by a dust fire. These opinions were predicated on the assumption aluminum dust was present in the cabinets. There was testimony that aluminum dust was prevalent in the plant especially around the electrical control panel where Young was injured and one expert testified that he found aluminum dust on the top of the cabinet six years after the fire. Plaintiff Young also testified there was substantial deposits of dust on the electrical controls in the cabinet. One could reasonably infer this was, at least in part, aluminum dust.

A medical expert testified that Young’s burns were not electrical burns but bums caused by the ignition of some flammable material.

There was also evidence regarding the type of smoke and flash caused by electrical arcs and dust fires, and conflicting theories of why certain combustible materials in the cabinet burned and others did not.

With this evidence in mind we now must determine whether under the standard of review described above a jury issue has been presented on each material element of the prima facie case and on each defense.

Plaintiffs assert two theories which we believe require essentially the same analysis. Plaintiffs contend that the defendants are strictly liable under Restatement (Second) of Torts § 402A because of the defective design of the product and, similarly, that the defendants are negligent in their design of the cabinets and machine of which the cabinets are a part. We believe these two counts present essentially the same theory. See Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L.J. 825 (1973).

Tennessee has adopted § 402A as a theory of liability for injuries inflicted by defective products. Wyatt v. Winnebago Industries, Inc., 566 S.W.2d 276 (Tenn.App.1977); Elli- thorpe v. Ford Motor Co., 503 S.W.2d 516 (Tenn.1973); Olney v. Beaman Bottling Co., 220 Tenn. 459, 418 S.W.2d 430 (1967). Section 402A provides:

§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from ©r entered into any contractual relation with the seller.

It is ordinarily a question for the trier of fact whether the product is in a defective condition unreasonably dangerous to the user. Wyatt v. Winnebago Industries, Inc., supra; Jackson v. Tennessee Valley Authority, 413 F.Supp. 1050 (D.C.Tenn.1976); Ellithorpe v. Ford Motor Co., supra. Relevant to the determination of whether a product is defective and unreasonably dangerous is the presence or absence of a statement accompanying the product which in some way informs the user of the danger. Wade, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825, 837 (1973). This statement must be “calculated to bring home to a reasonably prudent user of the product the nature and the extent of the danger involved in using the product.” Trimble v. Irwin, 59 Tenn.App. 465, 441 S.W.2d 818 (1968).

We believe it is clearly a question for the jury whether the cabinet and machine were unreasonably unsafe and whether the instructions accompanying the machine were adequate to apprise the user of the danger. Reasonable minds could certainly conclude from the evidence that a warning could have been more plainly made, that an alternative more dust proof cabinet design could have been employed or that a different and more effective cooling and filtration system would have been appropriate.

Of course the defective and unreasonably dangerous condition of the product must be the proximate cause of the plaintiff’s injuries, a determination, again, ordinarily for the finder of fact. Wyatt v. Winnebago Industries, Inc., supra, and cases there cited.

Here too we think a jury issue is presented. Reasonable minds could infer from the evidence that aluminum dust was present in the cabinet just before the fire occurred. Testimony indicated there was aluminum dust in the plant air near the cabinet, that the Alteration system drew that plant air into the cabinet without filtering out all the aluminum dust, that dust which was later found on the top of the cabinet cotild also have fallen through the fans into the cabinet. Reasonable minds could further conclude from the expert testimony that the aluminum dust ignited while plaintiff was working inside the cabinet and seriously burned him. We do not say that the preponderance of the evidence supports these conclusions or that we ourselves would reach them but that reasonable minds could conclude from the evidence that the design was the cause in fact of these injuries.

We also think reasonable minds could conclude that this type of occurrence and this type of plaintiff were within the zone of foreseeable risk and thus the remaining requirement for a finding of proximate causation would be present. See Wyatt v. Winnebago Industries, Inc., supra.

Great emphasis is placed in the briefs and the trial court opinion on the evidence that plaintiff failed to turn off the 440 volt line before entering the cabinet, contrary to the defendants’ instructions, and that Avco, plaintiff’s employer, failed to clean the filters or vacuum the cabinet also contrary to the defendants’ instructions. Defendants contend and the trial court held that these derelictions were unforeseeable intervening causes which absolve them of any liability. Plaintiffs contend these were foreseeable intervening causes and so do not interrupt proximate causation. We believe these arguments miss the mark.

In our opinion the proper analysis is initially to determine whether the product is unreasonably dangerous, including within that determination a finding of the adequacy of the instructions or warning. Normally this determination is a question for the jury. If it is found that the product is not unreasonably dangerous then that is the end of the inquiry and defendants are not liable. If, on the other hand, the product is determined to be unreasonably unsafe then the failure of the plaintiff or his employer to heed the instructions or warning do not as a matter of proximate cause interrupt the defendants’ liability, unless of course it may be said the plaintiff has assumed the risk. Wyatt v. Winnebago Industries, Inc., supra; Ellithorpe v. Ford Motor Co., supra. See, also, Wade, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825 (1973). In order for the fact finder to determine that plaintiff assumed the risk he must find that plaintiff voluntarily and unreasonably encountered a known danger. Wyatt v. Winnebago Industries, Inc., supra; Ellithorpe v. Ford Motor Co., supra.

Of course, we do not by this holding rule out the possibility of an unforeseeable intervening cause or an unforeseeable misuse or abnormal use of the product absolving a defendant from liability. We hold only that it is improper to characterize failure to follow instructions or heed a warning as an intervening cause, misuse or even abnormal use because the test of foreseeability attaching to those characterizations would necessarily frustrate those defenses. It is clear that it is virtually always foreseeable that an adequate instruction or warning will not be followed. To forestall such user action or omission is precisely the purpose of the instructions or warning. It is equally clear however that a manufacturer is entitled to expect reasonable instructions or warnings to be heeded. Reeves v. Power Tools, Inc., 474 F.2d 375 (6th Cir. 1973); Mitchell v. Ford Motor Co., 533 F.2d 19 (1st Cir. 1976); Restatement Torts 2d § 402A comment (j) at 353 (1965).

We conclude for the reasons above stated that granting the motion for directed verdicts in behalf of defendants Reliance and Carborundum was error and therefore grant plaintiffs’ first assignment of error.

II.

The plaintiffs’ second assignment of error calls into question the trial court’s conditional granting of a new trial.

Under Rule 50.03 of the Tennessee Rules of Civil Procedure a trial court may grant a new trial conditioned on a reversal of the directed verdict. Here, the trial court grounded its conditional grant of a new trial on its opinion that the evidence preponderated against the jury verdict. Ordinarily if the directed verdict action is reversed then the cause will be remanded for a new trial. It is only in exceptional circumstances and when the interests of justice require it that the jury verdict will be reinstated. Holmes v. Wilson, 551 S.W.2d 682 (Tenn.1977).

We do not believe that this case presents exceptional circumstances nor that the interest of justice requires reinstating the jury verdict. A trial court has wide discretion to grant a new trial in his capacity of thirteenth juror. We cannot say the able trial court below overstepped the bounds of his discretion in concluding the evidence preponderated against the verdict and thus granting a new trial.

There being no other assignments of error we reverse the directed verdicts in favor of defendants Reliance and Carborundum and remand for a new trial in accordance with this opinion.

Reversed in part, affirmed in part and remanded.

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


author: TODD, Judge.

text:
    Warner Jackson HUTTON, Appellant, v. Margaret Ann HUTTON, Appellee.
    Court of Appeals of Tennessee, Middle Section.
    Feb. 23, 1979.
    Certiorari Denied by Supreme Court June 11, 1979.

      Edward F. Bell, Nashville, for appellant.
    Nancy K. Corley, Nashville, for appellee.
   TODD, Judge.

OPINION

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

The plaintiff-cross defendant, Warner Jackson Hutton, has appealed from a final decree dismissing the complaint of appellant, awarding to counter-plaintiff, Margaret Ann Hutton, a “decree of separate support and maintenance from counter defendant”, ordering appellant to pay $200.00 per month child support and to provide medical and dental services to the child, ordering appellant to pay $400.00 per month alimony until the death or remarriage of appellee, awarding to appellee all of the household goods of the parties and a 1973 Plymouth Duster automobile, and requiring appellant to maintain medical and hospital insurance for appellee and to pay $1,000.00 fee to the solicitor for appellee.

There are eight assignments of error, four of which are addressed to purely technical matters not determinative of the controversy between the parties. Said assignments are therefore pretermitted.

The seventh assignment of error complains that the Trial Judge erred in finding appellant guilty of habitual drunkenness contracted after the marriage.

The record contains ample testimony of the habitual drunken behavior of the appellant. Even though appellant denied such conduct, the Trial Judge, after weighing the credibility of the witnesses, saw fit to believe the accusers rather than the accused. Where the witnesses are heard by the Trial Judge in person the appellate courts do not ordinarily undertake to reweigh the testimony. It has been repeatedly held that the decision of the trial judge as to credibility of the witnesses is “accorded great weight”, or is “well nigh conclusive”, or is “conclusive” on appeal. No justification is found for revising the decision of the Trial Judge as to credibility of witnesses.

Moreover, the decision of the Trial Judge is presumed correct unless the evidence preponderates otherwise. T.C.A. § 27-303. The evidence does not preponderate otherwise.

The seventh assignment of error is respectfully overruled.

The eighth assignment of error complains that the Trial Judge entered a decree for separate support and maintenance when his findings of fact and conclusions of law (entered after the decree) state that the appellee had proven a case for absolute divorce.

The ground upon which relief was granted is stated in the final decree as follows:

“. . . from all of which . the Court . . finds that the counter defendant has been guilty of habitual drunkenness and that he has contracted such habit after marriage. . . . ”

The ground of relief just stated is included in T.C.A. § 36-801 which sets out “causes of divorce from the bonds of matrimony.” This particular statute does not refer to lesser relief such as divorce from bed and board or separate support and maintenance. T.C.A. § 36-802, which authorizes absolute or limited divorces in the discretion of the Court, does not contain the ground of habitual drunkenness. However, section 36-817 appears to vest in the Trial Judge a broad discretion as to the type and extent of relief granted. Said section is as follows:

“36-817. Decree of court. — If, upon hearing the cause, the court is satisfied that the complainant is entitled to relief, it may be granted either by pronouncing the marriage void from the beginning, or by dissolving it forever and freeing each party from the obligations thereof, or by a separation for a limited time. [Code 1858, § 2465, (deriv. Acts 1835-1836, eh. 26, §§ 7, 19); Shan., § 4218; Code 1932, § 8443.]”

This Court therefore holds that the Trial Judge was acting within his statutory discretion when he elected to decree a separation even though the ground stated and proved is found only in T.C.A. § 36-801, the “absolute divorce statute”.

Moreover, the counter-complaint of appellee charges, in addition to habitual drunkenness, the ground of cruel and inhuman treatment. The latter charge is fully supported by the evidence, and this Court therefore makes the additional finding that the counter-defendant (appellant) has been and is guilty of such cruel and inhuman treatment or conduct toward appellee as renders cohabitation unsafe and improper. This last mentioned ground is designated by T.C.A. § 36-802 as ground for divorce from bed and board (separate maintenance) or from the bonds of matrimony in the discretion of the Court.

Thus, on the double ground of the provisions of § 36-817 in respect to the ground of habitual drunkenness as found by the Trial Judge, and the provisions of § 36-802 in respect to cruel and inhuman treatment as found by this Court, the decree of separate maintenance will be affirmed.

The eighth assignment of error is respectfully overruled.

The fourth and fifth assignments of error complain of the award of alimony in solido (household goods and automobile) and alimony in futuro until death or remarriage.

A decree of divorce from bed and board or separate maintenance is not regarded as a final decree and it may be changed, amended or modified as justice and equity may require. Abney v. Abney, 222 Tenn. 160, 433 S.W.2d 847 (1968).

Indeed, the decree in this case shows that it is not necessarily intended to establish a permanent status of the parties, for it states:

“counter plaintiff ... is awarded a decree of separate support and maintenance . . . but . . . she may at a later time apply to this Court for a decree of absolute divorce.”

There is statutory authority for the decree of support and alimony out of the property of the husband whether the decree be for absolute divorce or temporary separation. T.C.A. §§ 36-820, 36-821. However, this Court deems that, where possible and practical, it is better practice to defer permanent disposition of property and alimony until a permanent disposition is made of the marital status of the parties.

For this reason, the decree of the Trial Court will be modified by changing the absolute award of household goods and furnishings as alimony in solido to an award of possession and use of said property until further orders of court and by changing the award of $400.00 per month alimony until death or remarriage to an award of the same amount until further orders of the court.

The appellant does not assign as error the amount of periodic alimony or support, but argues that same is excessive. The record amply supports the finding of the Trial Judge that $400.00 per month is a reasonable periodic alimony and that $200.00 per month is reasonable child support at this time. Both such amounts are subject to change by the Trial Judge for good cause.

As modified, the decree of the Trial Court is affirmed. The cause is remanded to the Trial Court for further proceedings. Costs of this appeal are taxed against the appellant.

Modified, affirmed and remanded.

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


author: PARROTT, Presiding Judge.

text:
    HAMBLEN COUNTY et al. v. CITY OF MORRISTOWN et al.
    Court of Appeals of Tennessee, Eastern Section.
    May 25, 1979.
    Certiorari Denied by Supreme Court July 30, 1979.

      Earnest R. Taylor of Taylor, Tilson, In-man & Reams, Morristown, for Hamblen County.
    Richard C. Jessee of Bacon, Dugger, lessee & Perkins, Morristown, for City of Mor-ristown.
   OPINION

PARROTT, Presiding Judge.

This suit concerns the validity of a contract between Hamblen County and the City of Morristown for the operation of two high schools.

In 1965 the Quarterly Court of Hamblen County and the Hamblen County Board of Education, one party, (hereinafter referred to as the County), and the Mayor and Aldermen of the City of Morristown and the Morristown School Commission, the other party, (hereinafter referred to as the City), entered into a written agreement calling for the construction of a new public high school and the renovation of the existing Morristown High School to be financed by the general funds of the County raised primarily through the sale of general obligation bonds.

The contract was necessitated by the overcrowding of the existing city high school which had for some period of time been attended by county students living outside of the corporate limits without compensation to the City.

Pursuant to the contract, the County was to acquire the necessary land for the new high school and thereafter lease this land to the City “for such time and so long as the same is used for educational purposes for city and county students.” The land was so acquired, the new high school, West, constructed, and the existing high school, East, renovated, although no lease agreement was ever entered into.

These two schools have been operated by the Morristown School Commission and by its successor, the Board of Education of the City of Morristown, for approximately eleven years. (For a review of other related facts see Miller v. Hamblen County Board of Education, 225 Tenn. 18, 462 S.W.2d 874 (1970).

In 1976 Hamblen County filed this suit in chancery court seeking to have the contract set aside and requesting restoration of the right to operate West High. The chancellor granted the County’s motion for partial summary judgment but the decision was reversed by this Court on a discretionary appeal and remanded for a trial on the merits.

The trial resulted in a final judgment for the County. The contract was held void and unenforceable for numerous reasons that will be discussed below, and the County was ordered to pay to the City the existing equity in West High School, $2,205,-394.93. Title to West High School was ordered to be vested in the County and title to East High was ordered retained in the City.

From this judgment both parties have appealed. The County contends that the chancellor erred in this determination as to the amount of compensation owed to the City. The City makes nine assignments of error; five relate to the determination that the contract was void, and two each related to the failure to find the County equitably estopped from denying the validity of the contract and to the amount of compensation awarded.

. The basic issue before this Court is whether or not a county school board can contractually delegate the power to administer the operation of a public high school to a city board of education where the high school is used for the education of both city and county students. We will address this issue by addressing each of the five assignments of error relating to the validity of the contract. These assignments are:

(1) The court erred in holding the contract void because it was without statutory authority.

(2) The court erred in holding the contract void because it constituted an unlawful delegation and surrender of authority.

(3) The court erred in holding the contract void because it was violative of the due- process and equal protection clauses of the state and federal constitutions.

(4) The court erred in holding the contract void because it extended beyond the terms of those in office at the time of its making and was therefore violative of public policy.

(5) The court erred in holding the contract void because it was in perpetuity.

The plenary power to establish and maintain a public school system is a state function and is vested in the state legislature. Board of Education of Memphis City Schools v. Shelby County, 207 Tenn. 330, 339 S.W.2d 569 (1960). General operation and management of the educational system can be delegated by the legislature in any reasonable manner not constitutionally prohibited.

Chapter 4 of Tennessee Code Annotated deals with the transfer of schools and the joint operation of school systems. Two code sections therein and one section from Chapter 2 dealing with local administration are specially applicable to this suit. These sections are:

49-410. JOINT OPERATION OF SCHOOLS — CONTRACTS BINDING.— The boards of education of any two (2) or more school systems are authorized and empowered to establish, maintain and operate a public school or schools jointly by entering into contracts for that purpose. Upon the execution of contracts §§ 49— 410 — 49—414 by the respective boards of education, the same shall be binding upon the said boards of education and upon the counties, cities and special school districts involved.
49-413. ADMINISTRATION OF JOINT SCHOOLS — RECEIPT AND DISBURSEMENT OF FUNDS. — The administration of schools established, maintained and operated pursuant to a contract entered into under §§ 49-410 — 49-414 may be placed under the board of education of the county, city or special school district in which such school is located; or the administration of such schools may be placed under a board of control created pursuant to the terms of said contract. In the event such a board of control is created, it shall elect its own chairman and secretary and may designate as ex officio secretary the superintendent of schools of the county, city or special school district in which said school is located; and any such board of control shall exercise all the administrative powers and functions with respect to such school that county boards of education are authorized to perform and exercise with respect to the operation of county schools. Provided, however, such schools may be administered by such other persons and in such other manner as the terms of the said contract may provide. The county trustee or treasurer or other fiscal or disbursing officer, as the case may be, of the county, city or special school district in which such school is located, or such other disbursing officer as may be designated by the contract, shall have the same powers, rights and duties with respect to the receipt, protection and disbursement of the funds allocated to or for the use of such school as provided by law for other school funds.
49-231. COUNTY CONTRACTS FOR TEACHING IN PRIVATE, CITY OR SPECIAL DISTRICT SCHOOLS. — The county board of education shall have the power to make contracts with the proper authorities of private schools, or with city or special school district boards of education whereby the county public elementary and high school may be taught in said private or city schools; provided, that the public elementary and high school branches be taught free of charge to all pupils of the county entitled thereto; provided, further, that the contract may provide that the school shall be administered by either the city, special school district, or county board of education upon the condition that the board charged with administration of the school shall employ duly certified teachers and shall otherwise comply with other state laws pertaining to education, and shall in no way interfere with the powers devolved upon the commissioner of education in connection with the county public elementary and high schools, and in the event of contracts with private schools that no teacher shall be employed in such private school unless said teacher has a teacher’s certificate of such grade as may be prescribed for his employment and unless the employment of said teacher shall be approved by the county board of education; and provided further that the authority of the state commissioner, county superintendent and all public school officers shall be as full and ample in such private schools as in other county public elementary and high schools.
This section shall not be construed as authorizing a contract by a county board of education with a church sponsored or church related or a parochial school.

The authority of a county board of education to contract with a city board of education for the operation of a joint system appears clearly available under the above cited code sections. Such authority has been approved by the courts of this state, Brown v. Monroe, 161 Tenn. 703, 34 S.W.2d 209 (1930), and is not constitutionally prohibited by our state’s constitution. Furthermore, the powers to delegate administrative duties related to the operation of joint schools to another school board is provided in T.C.A. 49-413. We, therefore, sustain the first two assignments of error made by the appellant-City.

In its reply to the third assignment of error the County contends that the application of T.C.A. 49-410 and 49-413 in this situation so as to allow the city board of education to govern the operation of county schools is in violation of the due process clause of the Fifth and Fourteenth Amendments to the Constitution of the United States and of the “one man — one vote” principle of the Fourteenth Amendment.

The one man — one vote principle generally applies to elected bodies, not appointed boards. Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970), and numerous cases have specifically held that the one man — one vote principle is not applicable to a school board where the selection of board members is by means other than popular vote. Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650; Oliver v. Board of Education (D.C.N.Y.) 306 F.Supp. 1286. If the board was elected, the one man — one vote principle would clearly apply in Tennessee, Stickland v. Burns (D.C.Tenn.) 256 F.Supp. 824, but there is no requirement that nonlegisla-tive officers be elected. Wallis v. Glue (D.C.Ga.) 263 F.Supp. 965; Sailors, supra. The one man — one vote principle is not, therefore, applicable in this situation.

The County also contends that its citizens living outside the corporate limits of Mor-ristown are effectively denied any voice in the appointment of school board members who administer the two high schools since their appointment is made by the city council for whom they cannot vote. The contention is true, but its mere truthfulness does not connote any constitutional violation.

As noted before, the statutes of this state clearly give the County the authority to delegate the duty of administering certain schools. The County, through its elected officials and by popular referendum adopted and approved a contract which the parties have interpreted to delegate such duties. Any power the County had over the operation and maintenance of schools comes directly from the state through its legislation; all educational programs are a function of the state. The state can, therefore, authorize the County to delegate any authority which it has given. As was stated in Keese v. Hamilton County, 184 Tenn. 171, 197 S.W.2d 800 (1946), “the very life of the school depends upon the will of the county government.” In this situation the county government contracted to place its high school system under city operation. Such action does not violate either substantive or procedural due process. Adequate safeguards to protect the rights of the county citizens were taken. The citizens had notice and an opportunity to be heard. Furthermore, statutory requirements concerning the proper operation of the schools exist, and legal remedies such as a writ of mandamus are available to guarantee and protect the County’s right to a proper and adequate educational system.

The City’s third and fourth assignments of error are sustained.

The contract provides that the lease shall run “so long as the same (the newly constructed high school) is used for educational purposes . . .” This section, although indefinite, is clearly not perpetual. As a general rule, contracts which do not create rights to property are not subject to the rule against perpetuities. If, however, the contracts create a right to property which equity can enforce, such as the lease provision in the present contract, the rule is applicable and for the contract to be valid, the agreement must not transcend the rule. The rule against perpetuities is concerned with the creation of and not the termination of an estate. Leases, therefore, which commence at once do not violate the rule whether or not the lease period continues beyond the allowed period for vesting. See 61 Am.Jur.2d, Perpetuities, §§ 41 and 42.

Furthermore, the statement that the contract is “binding and irrevocable” does not render the contract perpetual. The intentions of the parties in entering into this contract are manifested within the language of the agreement. The agreement calls for extensive expenditures and long term commitments. Both parties needed protection from arbitrary rescission. This Court interprets irrevocable to mean that the contract could not be revoked at will by one of the parties over the objection of the other. See Independent School Dist. No. 35, St. Louis County v. Hedenberg & Co., 214 Minn. 82, 7 N.W.2d 511 (1943). The contract is and was clearly revocable for material breach by either party or by mutual agreement. We therefore, sustain the fifth assignment of error.

This Court also finds the County equitably estopped from denying the validity of the contract.

Having found the contract valid, we do not reach the question of damages.

Before concluding this opinion, we want to point out that we have not overlooked Hamblen County’s insistence that it has no voice in the operation of the school system which is providing education for county children. While it may be true that they have not exercised and may have abdicated control to the City, we find nothing in the contract which would give the City exclusive authority to operate the system.

The decree of the chancellor and the award of compensation is reversed and vacated. The costs of this appeal are taxed to the County.

GODDARD and FRANKS, JJ., concur.