author: HOGAN, Judge.

text:
    Charles WAGONER, Plaintiff-Respondent, v. Jack HURT, Defendant-Appellant.
    No. 10259.
    Missouri Court of Appeals, Springfield District.
    Aug. 1, 1977.

      Donald P. Thomasson, Paul V. Gilbert, Jackson, Thomasson, Dickerson & Gilbert, Cape Girardeau, for defendant-appellant.
    Kenneth L. Dement, Sikeston, for plaintiff-respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   HOGAN, Judge.

Defendant Jack Hurt’s automobile collided with a vehicle being driven by plaintiff Charles Wagoner. Claiming severe personal injuries, plaintiff brought this action for damages. Upon trial a jury found for the plaintiff and assessed his damages at $15,-000. Defendant appeals. Two questions are presented. The first is whether the plaintiff’s case was properly submitted under the “rear-end collision” doctrine; the second is whether the jury was prejudicially misinstructed upon the issue of liability or upon the issue of damages. The answer to the first question is yes; the answer to the second is yes, but only upon the issue of damages.

The casualty occurred October 28, 1974, about 8:00 p. m. on U. S. Highway 60-62, near the village of Miner in Scott County. Highway 60-62 or East Malone, at this point, is a four-lane concrete highway which runs east and west. By all accounts it was dark, raining, the visibility was poor and the pavement was wet when the accident happened. Plaintiff had stopped at a place identified only as “Riley’s Service Station” and “pulled on the [south] lane next to the curb and started east toward home.” As he was driving east “around approximately twenty miles per hour” he “felt a small impact, and the next thing [he] knowed, [he] was hit real hard.” The first or “small” impact was to the left rear of plaintiffs car; the car was moved counterclockwise in the road and then hit in the left side by defendant’s automobile. Photographs taken by the plaintiff shortly after the accident, particularly plaintiff’s exhibit 1, indicate that the vehicle plaintiff was driving was struck a glancing blow from the left rear. The photograph, which is in evidence here, shows minor damage to the left corner of the rear bumper and to the rear part of the left quarter panel. On cross-examination plaintiff repeated his testimony that he was driving in the “outside” eastbound lane, going about 20 miles per hour when he was struck from the rear.

The defendant’s testimony was that immediately prior to the accident he was driving east on “East Malone.” It was dark; defendant had his “headlights on.” When the defendant first saw the plaintiff’s vehicle, it was “a hundred yards or a little over that” ahead of him, in the “right-hand outside lane” going east. The defendant’s speed, as he drove east, was approximately 30 miles per hour; he was unable to judge the plaintiff’s speed accurately, but was aware that the plaintiff was going slower than he was. As defendant approached the plaintiff’s vehicle, he decided to pass the plaintiff on the left. Defendant’s testimony was that he turned to his left into the “inside” eastbound lane, and as he started to pass, plaintiff’s vehicle “seemed to skid or slide” to the left into the path of defendant’s automobile. The “right front fender” of defendant’s automobile “pushed the door in on [plaintiff’s] driver’s side.”

Defendant vigorously maintains that the plaintiff’s case was erroneously submitted under the “rear-end collision” doctrine, contending the proof compels the conclusion that the “front end” of defendant’s automobile collided with the “side” of the vehicle being driven by the plaintiff. In support of this contention, defendant cites us to Neil v. Mayer, 426 S.W.2d 711 (Mo.App.1968).

The “rear-end collision” doctrine is simply that if a driver has his motor vehicle on a part of the highway where he should have or was entitled to have it in view of the course in which he was proceeding and some other person traveling behind him in the same direction overtakes his vehicle and strikes it in the rear, proof of the collision makes out a prima facie case of specific negligence against the overtaking motorist. Witherspoon v. Guttierez, 327 S.W.2d 874, 880[5] (Mo.1959); Jones v. Central States Oil Co., 350 Mo. 91, 102, 164 S.W.2d 914, 919-920[4, 5] (1942); Gaynor v. Horwitz, 464 S.W.2d 537, 538[2] (Mo.App.1971); Hughes v. St. Louis Public Service Co., 251 S.W.2d 360, 362[3] (Mo.App.1952). The rear-end collision doctrine submits specific negligence, Witherspoon v. Guttierez, supra, 327 S.W.2d at 880[5]; Jones v. Central States Oil Co., supra, 350 Mo. at 97, 164 S.W.2d at 916, but since Clevenger v. Walters, 419 S.W.2d 102, 107 (Mo. banc 1967), our courts have limited the rear-end collision theory of recovery to those cases in which the fact of collision warrants an inference of the defendant’s • negligence. Barlow v. Thornhill, 537 S.W.2d 412, 420-421[7, 8][9] (Mo. banc 1976); Clevenger v. Walters, supra, 419 S.W.2d at 107; Lichtenberg v. Hug, 481 S.W.2d 527, 528-529 (Mo.App.1972). If, for example, the motorist being overtaken suddenly changes his position in front of the overtaking driver, the occurrence of a collision does not permit an inference of negligence on the part of the overtaking motorist, and the plaintiff’s cause may not be submitted as a rear-end collision case. Witherspoon v. Guttierez, supra, 327 S.W.2d at 879; Rosenfeld v. Peters, 327 S.W.2d 264, 269[6] (Mo.1959); Lichtenberg v. Hug, supra, 481 S.W.2d at 529-531[1, 2]. It must be remembered, however, that a plaintiff is entitled to submit his cause as a rear-end collision if that submission is warranted by consideration of the evidence in the light most favorable to the plaintiff, giving him the benefit of all favorable inferences arising from his evidence and disregarding defendant’s evidence except as it may aid the plaintiff. Clevenger v. Walters, supra, 419 S.W.2d at 107; Neil v. Mayer, supra, 426 S.W.2d at 715[3], and see generally Welch v. Sheley, 443 S.W.2d 110, 118[6] (Mo.1969).

Measured by these principles, the evidence warrants submission of plaintiff’s case as a rear-end collision. Plaintiff testified that shortly before the accident, he was driving east in the south lane of a four-lane east-west highway. He was driving about 20 miles per hour. As he was proceeding east, he “felt” a “slight impact” to the left rear of the vehicle he was driving. This first blow spun him counterclockwise in the highway and he was thereafter struck broadside by the defendant’s vehicle.

The defendant testified on trial that he noticed plaintiff’s automobile when it was still 100 yards or more to the east. Upon pretrial deposition, parts of which were introduced as admissions, defendant stated he saw plaintiff’s vehicle when it was still 200-300 yards ahead, and observed that plaintiff was traveling “very slow”, and, in the course of this deposition, defendant testified that he had not passed the plaintiff’s vehicle when the collision took place; he was “just immediately behind and to the left of [plaintiff’s] car” and plaintiff was in the outside lane. As we have said, the photographs are consistent with a finding that defendant misjudged plaintiff’s speed and struck plaintiff’s automobile a glancing blow as he attempted to pass. There are, to be sure, other versions of the facts in the record, but it was for the jury to determine whether defendant’s pretrial testimony or his evidence upon trial was true, Moore v. Ready Mixed Concrete Co., 329 S.W.2d 14, 20[2, 3] (Mo. banc 1959), and the jury was at liberty to believe all of the testimony of any witness or none of it, or to accept it in part and reject it in part, just as it found it to be true or false when considered in relation to the other testimony and the facts and circumstances of the case. Kickham v. Carter, 314 S.W.2d 902, 905[1] (Mo.1958); Gould v. Chicago, B. & Q. R. Co., 315 Mo. 713, 723, 290 S.W. 135, 138[2] (1926); Rakestraw v. Norris, 478 S.W.2d 409, 419[22] (Mo.App.1972).

The defendant has relied heavily on Neil v. Mayer, supra, 426 S.W.2d 711, as a precedent which defeats plaintiff’s rear-end collision submission. We have read and reread Neil v. Mayer, and while we do not find an exceptionable sentence in the opinion, it simply does not control here. In Neil, the accident occurred 500 to 550 feet south of the intersection of Lemay Ferry Road and Lindbergh Road in St. Louis County. The only proof plaintiff had to offer which supported a rear-end collision submission was a showing of damage to the left rear fender of the cab which he was driving. The plaintiff’s testimony was that the force of the collision threw him out the right front door of the cab, that he was dazed, did not know where the two vehicles came to rest after the accident and did not know what damage was done to either vehicle. The only basis plaintiff had for believing he had been struck from the rear was information he obtained from a bystander, and he admitted on cross-examination that he merely “presumed” he had been struck from the rear. The court quite properly held that no submissible case had been made under the rear-end collision doctrine. The opinion does not hold, as defendant argues, that the overtaken motorist must be struck squarely in the middle of the rear bumper in order to invoke the rear-end collision doctrine.

The defendant further complains of prejudicial misinstruction on the issue of plaintiff’s liability. Plaintiff’s liability was submitted under MAI No. 17.16 as originally formulated, rather than amended MAI No. 17.16, promulgated December 19, 1972, for use on and after July 1, 1973. The Kansas City District recently analyzed and rejected an identical assignment of error in Coffer v. Paris, 550 S.W.2d 915, 916-917[1, 2][3] (Mo.1977). The court there held that it was indeed error to submit a rear-end collision case under former MAI No. 17.16, but further held that the original version of MAI No. 17.16 imposes a greater burden on plaintiff than the amended version; therefore, there was no prejudice to defendant. Given the recent tendency of our courts to draw an analogy between the res ipsa loquitur doctrine and the rear-end collision submission, see Barlow v. Thornhill, supra, 537 S.W.2d at 420-421; Lichtenberg v. Hug, supra, 481 S.W.2d at 529, we are inclined to agree with the ruling in Coffer v. Paris, supra, 550 S.W.2d at 916-917, and accordingly hold that the jury was not prejudicially misinstructed on the issue of plaintiff’s liability.

The defendant’s complaint of the court s instruction on the measure of damages has considerably more merit. Plaintiff alleged that he had severely and permanently injured his left knee. Rather extensive medical testimony was adduced, but we need not recount it here. Plaintiff, who was 39 years of age at trial time, testified that since the accident, “I am [a] broke down old man, I guess. I was always active when I was young, and . . . [now] . . . I have to go back every three, six months to get it drained. ... I can’t do any lifting or walking up and down steps. It is real hard.” Counsel inquired what medicine plaintiff took. Plaintiff answered, “I take about fifteen aspirins a day until I have to get off them. I take all the aspirin I can take as far as pain pills and anything I can get.”

On cross-examination, plaintiff testified that prior to the accident, he had never had any problems with his left knee. He testified he had never made any claim for injury to his left knee. Counsel for defendant thereupon produced a file, certified as complete by the Division of Workmen’s Compensation, showing that plaintiff had sustained an injury to his left knee on January 22, 1971, and that his claim for disability had been disposed of by compromise on March 28, 1972, for $1,300. The trial court admitted the file for purposes of impeachment, and plaintiff admitted that he had signed the claim for compensation and the receipt for compensation. The plaintiff maintains that for a number of reasons, the contents of the file were inconsequential, but it is unnecessary to take up and consider the several tenuous arguments advanced by the plaintiff in support of his position. The evidence unmistakably shows that plaintiff suffered an injury to his left knee before he was injured in the accident sued upon here. The only instruction given on the measure of damages was MAI No. 4.01, unmodified to limit the jury to a consideration of the results of the accident of October 28, 1974. For the reasons fully stated by this court in Clark v. McCloskey, 531 S.W.2d 36, 38-40[4] (Mo.App.1975), the trial court’s failure to modify Instruction 5, submitting the issue of damages, was error prejudicial to the defendant.

We find no error in submitting the case as a rear-end collision and we find no prejudicial error in instructing the jury on the issue of plaintiff’s liability. We find prejudicial error in submitting the issue of plaintiff’s damages. Accordingly the case is reversed and remanded for a new trial on the issue of damages only. Rule 84.14, V.A. M.R.

All concur.

      . This highway is also referred to as “East Malone” Street.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Interest of T— J— J— , a minor child.
    No. 10758.
    Missouri Court of Appeals, Springfield District.
    Aug. 3, 1977.
    M— J— L — , pro se.
    No appearance, for respondent.
   PER CURIAM.

The Circuit Court of Webster County, Missouri, entered judgment on April 5, 1977, transferring the custody of the minor, T— J— J — , to the Division of Family Services. The mother of T— J— J— filed her notice of appeal on June 3, 1977, followed by paying the requisite docket fee on July 28, 1977.

Rule 120.01(c), V.A.M.R., requires all appeals from Juvenile Code judgments to be initiated within 30 days after entry of said judgment. The notice of appeal was filed 59 days after entry of the judgment but the notice of appeal was not effective until 114 days after entry of judgment when the docket fee was paid. State v. Worl, 531 S.W.2d 294, 295[2] (Mo.App.1975).

Timely filing of a notice of appeal is an essential prerequisite to appellate jurisdiction. In Interest of P. J. M., 536 S.W.2d 519[1] (Mo.App.1976). We have no jurisdiction and the appeal is dismissed.

All concur.


author: TITUS, Judge.

text:
    STANDARD MEAT COMPANY, a corporation, Plaintiff-Appellant, v. TACO KID OF SPRINGFIELD, INC., d/b/a Taco Den, W. C. Van Eaton and R. C. Scanlon, Defendants-Respondents.
    No. 10344.
    Missouri Court of Appeals, Springfield District.
    Aug. 5, 1977.

      Loren R. Honecker, Charles Dudley Martin, Springfield, for plaintiff-appellant.
    No appearance for defendants-respondents.
   TITUS, Judge.

Plaintiff sold precooked taco meats to Taco Kid of Springfield, Inc., d/b/a Taco Den. Initially all sales were C.O.D. but later were made on open account in purported reliance upon alleged guaranties executed by W. C. Van Eaton and R. C. Scan-lon. When the account became $3,850 in arrears plaintiff sued Taco and the averred guarantors. An interlocutory default judgment was entered against Taco and the cause proceeded to a bench-trial against the individual defendants. The court rendered judgment for plaintiff against Taco and exonerated the alleged guarantors. Plaintiff appealed.

Two identical printed forms (plaintiff’s exhibits 2 and 3) were submitted by plaintiff to Taco when inquiry was made about buying meat on credit. The forms, sent in blank, were completed in Springfield and returned to plaintiff by mail. The front of each form is headed “Application for Credit”, and the information written into the blanks on both forms was identical for all practical purposes. After “Billing name” and “Owner,” Taco’s name was inserted and the forms were checked to show that Taco was a “corporation.” The name “Richard E. Luke” was written in the blanks calling for “Name of Buyer” and “Person responsible for payment of account.” Following “Signature of Applicant” appeared the signature “Richard E. Luke” whose “Title” was designated as “Manager.”

On the reverse side of each form appeared the following printing:

"For applicants that are not individual proprietor-ships it is necessary that the following be completed by a principal of the business.
Date_
STANDARD MEAT COMPANY
[Address omitted]
Gentlemen:
In consideration of Standard Meat Company selling merchandise to _ of _ on open account, I hereby guarantee to Standard Meat Company the payment at ... of such sums of money as may at any time hereafter become due and owing to Standard Meat Company from them.
I -agree that this guarantee shall remain in full force and effect subject to my written cancellation on thirty (30) days notice and that this guarantee shall cover all sums of money due and owing to Standard Meat Company on account of sales to_as of the expiration date hereof.
Sincerely yours,”

The first guaranty form (exhibit 2) was dated “3/8/71” and signed “W. C. Van Eaton president of Taco Kid of Springfield Mo, Inc.” Taco’s name was hand printed on the forms in the blank spaces. Plaintiff’s representative said that because of dissatisfaction with the credit report on Van Eaton, a second guaranty was required. The second form (exhibit 3) was dated “7-15-71” and signed “R. C. Scanlon — Pres.” Taco’s name was hand printed in the blanks. By pen, the “I’s” and “my” were scratched out and the words “We” and “our” substituted therefor.

Van Eaton and Scanlon were shareholders and directors of the Taco corporation. Scanlon owned the real estate occupied by the Taco restaurant. Van Eaton was the elected president of Taco. Scanlon had never been elected but “acted as president” after “all the stockholders got together and decided we didn’t want [Van Eaton] to be the manager any more.” In substance, Van Eaton and Scanlon testified that they had not executed the guaranty contracts as individuals but rather in their official corporate capacities to cause the Taco corporation to become the guarantor. Scanlon was allowed to state that the reason he had changed the “I’s” and “my” on exhibit 3 to “We’s” and “our” was to “make it absolutely clear in my own handwriting that I wasn’t going to be personally responsible.” Both Van Eaton and Scanlon acknowledged they had signed the guaranties to enable Taco, which they recognized was not an individual proprietorship, to secure merchandise on credit from plaintiff.

The trial court in its memorandum opinion noted “the application is made by the manager . . . presumably for a corporation [but] [a]nyone dealing with a corporation should be alerted to accepting an application executed by the manager . . . and plaintiff makes provision for this by the phraseology on the back of the exhibit that if the applicant is not an individual it should complete the back side, and it should be completed by ‘a principal of the business.’ . . . The question arises, ‘Is Taco . . . agreeing to pay for all goods ordered under the application of the manager or [are Van Eaton and Scanlon] guaranteeing the account?’ ” The court settled on the first moiety of the question which thereby forced its conclusion that the corporation was the guarantor of the “goods ordered under the application of the manager.” Also the court, without explicit explanation therefor, opined there was ambiguity between the obverse and reverse sides of the printed forms as completed, thereby making explanatory and clarifying oral testimony permissible.

We admit difficulty in following the reasoning of the trial court. This stems, in part, from the fact that the court seemingly attributed to the “Application for Credit” a degree of vitality possessed of potential contractual strength. The application was a simple supplication which neither unilaterally nor bilaterally bound anyone to anything. The blank forms merely served as a vehicle whereby those seeking credit could convey to plaintiff information for its consideration in determining whether credit would be extended vel non. Contrary to the pronouncement of the court nisi, no one would ever be ordering goods “under the application.” Only two things reasonably could be inferred from submission of the application for credit and those lay in futuro, i. e., either plaintiff would or would not deliver goods on credit in the future. If plaintiff unilaterally determined to extend credit, it would only be when it delivered goods that the acceptor thereof would be deemed in law to have inferentially or impliedly promised to pay for same. Bennett v. Adams, 362 S.W.2d 277, 280-281[6, 7] (Mo.App.1962). Both the interlocutory default judgment and the final judgment entered against Taco attest that its liability was not, and could not have been, predicated upon the “Application for Credit” but rather upon Taco’s acceptance of plaintiff’s goods on credit and its inferred or implied promise to pay therefor.

A guaranty is a species of contract [Aalco Plumbing Sup. Co. v. John L. Henson Plumbing Co., 464 S.W.2d 10,12[1] (Mo.1971)] to be construed as other contracts. Industrial Bank & Trust Co. v. Hesselberg, 195 S.W.2d 470, 476[17] (Mo.1946). It is a collateral agreement for another’s undertaking and is an independent contract which imposes responsibilities different from those imposed in an agreement to which it is collateral. First National Bank of Clayton v. Frisco Park Realty Co., 510 S.W.2d 59, 62[3, 4] (Mo.App.1974). While it is held that contemporaneous agreements dealing with the same subject matter may be construed together as an aid in ascertaining the intention of the parties, this does not mean that those agreements constitute a single contract [Elliott v. Richter, 496 S.W.2d 860, 864[2] (Mo.1973)] for the liability of the guarantor remains primarily dependent upon the guaranty contract. It is the guaranty agreement which contains the express conditions on the guarantor’s liability and which defines the obligations and rights of both the guarantor and guarantee. 38 Am.Jur.2d, Guaranty, § 73, at p. 1076. Any ambiguity in a guaranty contract should arise in the first instance from the guaranty agreement itself and neither a court nor the parties will be permitted to create an ambiguity where none exists. Charles Palermo Company, Inc. v. Wyant, 530 S.W.2d 15, 17[3] (Mo.App.1975).

Although, as previously noted, the application for credit harbored no legal significance, the liability of the alleged guarantors was ostensibly found wanting because of ambiguity attending the applications and the guaranty agreements. We perceive no ambiguity. On the applications, Taco was designated owner and its name and designation as “corporation” were inserted in the blanks following “Billing name.” All addresses, telephone numbers, credit references and business descriptions written in the blanks on the application forms were Taco’s. Albeit Richard E.' Luke’s name appeared as the person designated as “Buyer” and “Person responsible for payment of account,” he was clearly designated as “Manager.” It requires considerable straining to transmogrify the cognomen “manager” into an “altruist” imbued with such unselfish concern for the welfare of his corporate employer that he would undertake to bind himself personally for the payment of debts incurred through purchases made on behalf of the corporation. Corporations are artificial beings which can only act by agents and are responsible for the acts of their agents when done in the exercise of their agency. Globe Indemnity Co. v. First Nat. Bank in St. Louis, 133 S.W.2d 1066, 1071[3] (Mo.App.1939). Managers of businesses have authority to do things which are necessary to be done in carrying out the business in the usual and accustomed way. Butts v. Ajax-Grieb Rubber Co., 169 Mo.App. 657, 663, 155 S.W. 837, 839[1] (1913). If not actual authority, the manager of an incorporated restaurant selling tacos would assuredly have apparent authority to purchase taco meats and obligate his corporate employer for the payment thereof. Fielder v. Production Credit Association, 429 S.W.2d 307, 313[7—9] (Mo.App.1968).

The guaranty side of the forms were, as directed, completed and signed by principals of Taco. Both undertook to guarantee to plaintiff the payment of “such sums of money as may at anytime hereafter [in futuro] become due and owing to [plaintiff] on account of sales to Taco.” There was no ambiguity in the guaranty contracts unless it can be rightfully said that writing “Pres.” or “President of Taco Kid” after the signatures of Scanlon and Van Eaton engendered ambiguity. We think not. The preface to the forms specified the guaranties were to be completed by “a principal of the business”, and the addition of a title which identified the signatories as principals of the corporation was merely descrip-tio personae. Obviously there was no attempt to execute the guaranties for or on behalf of the corporation. Also, there was no manifestation of the part of the signatories to enter into a contract between plaintiff and the corporate entity as was the situation in Wired Music, Inc. of The Great Midwest v. Great River Steam Boat Company, 554 S.W.2d 466 (Mo.App. filed June 14, 1977).

“As Judge Ridge stated in A. E. West Petroleum Co. v. Atchison, T. & S. Ry. Co., 108 F.Supp. 644, 648 (W.D.Mo.1953), aff’d 212 F.2d 812 (8th Cir. 1954): ‘. . . So in an interpretation [of a contract] which evolves an unreasonable result, when a more probable and reasonable construction can be adopted, every intendment will be against the former construction or one which would operate as a snare.’ ” Kansas City, Missouri v. Kansas City, Kansas, 393 F.Supp. 1, 5 (W.D.Mo.1975). We agree with perspicacious counsel for plaintiff that a guaranty contract signed individually by principals of the corporation if construed to be “the corporation’s guaranty of its own contract [would be] redundant, illusory, absurd, and therefore unreasonable.” Cf. Gallatin Trust and Savings Bank v. Henke, 154 Mont. 170, 461 P.2d 448 (1969); American Casualty Company v. Howard, 175 So.2d 355 (La.App.1965); Gross v. Lamme, 77 Nev. 200, 361 P.2d 114 (1961); Chesebro, Robbins and Graham v. Leadbetter, 19 Conn.Sup. 422, 116 A.2d 578 (1955).

While it is generally stated that if a contract is fairly open to more than one interpretation, it will be construed against the party who prepared it [John Deere Company v. Hensley, 527 S.W.2d 363, 365[2] (Mo. banc 1975)], the rule is more accurately phrased that the instrument should be construed against the party using it. Brown v. Houghton Const. Co., 227 S.W. 137, 140[3] (Mo.App.1920); 3 Corbin on Contracts, § 559, p. 262 et seq.; 4 Williston on Contracts, 3rd Ed., § 621, p. 760 et seq. In this case plaintiff merely provided printed blank guaranty forms. It was Van Eaton and Scanlon who used them. Scanlon knew that Van Eaton had previously completed and signed one guaranty contract form and “that we cannot get credit unless we have one more director sign.” The acts of Scan-lon in pluralizing the “I’s” and “my” to “we” and “our” on the forms, was his personal use thereof and any uncertainty concerning the party or parties to whom these pronouns referred should be construed most strongly against Scanlon. In view of Scan-lon’s knowledge of the previously executed guaranty and the necessity for an additional one, it is more likely the inserted plural pronouns referred to Scanlon and Van Eaton rather than to a neuter gender pronoun which would be employed in referring to a corporation.

With caution and with a firm belief that the judgment below was wrong in finding in favor of defendants Van Eaton and Scanlon [ Murphy v. Carron, 536 S.W.2d 30, 82[1, 2] (Mo. banc 1976)], the judgment in favor of plaintiff and against Taco is affirmed but the judgment is also reversed and the cause remanded with directions to enter judgment in favor of plaintiff and against defendants Van Eaton and Scanlon.

All concur.


author: HERBERT C. CASTEEL, Special Judge.

text:
    STATE of Missouri, Respondent, v. Douglas RAY, Appellant.
    No. 10400.
    Missouri Court of Appeals, Springfield District.
    Aug. 9, 1977.
    Motion for Rehearing or to Transfer to Supreme Court Denied Aug. 24, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      John D. Ashcroft, Atty. Gen., Jeffrey M. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, for respondent.
    Loren R. Honecker, Springfield, for appellant.
    Before TITUS, P. J., and PARRISH, CASTEEL and HENRY, Special Judges.
   HERBERT C. CASTEEL, Special Judge.

Defendant was charged with murder in the first degree under prior § 559.010, V.A. M.S., of Cecilio Cardona on September 21, 1973. He was tried under the Second Offender Act, § 556.280, V.A.M.S., in the Greene County Circuit Court. On February 21, 1974, a jury found defendant guilty of manslaughter. § 559.070, Y.A.M.S. No after-trial motions were filed and on March 8, 1974, the court sentenced defendant to imprisonment for ten years.

Thereafter defendant sought postconviction relief under Rule 27.26, V.A.M.R. His motion was denied by the trial court but on appeal this court ordered the sentence vacated and defendant permitted to file a motion for new trial. Ray v. State, 532 S.W.2d 478 (Mo.App.1975). Defendant’s trial counsel being deceased, present counsel was appointed to represent him. Motion for new trial was filed and, on June 8,1976, was overruled and defendant again sentenced to imprisonment for ten years. This appeal followed.

Defendant relies on three alleged errors. (1) The conduct of the judge during the trial betrayed a bias in favor of the prosecution. (2) The prosecuting attorney acted improperly and in bad faith in cross-examining defendant and in arguing the case to the jury. (3) The court erred in permitting the jury to view State’s Exhibit “5”, a photograph of the victim’s face made after the shooting. However, for the reasons that follow, we affirm.

Defendant’s first two points were not preserved for review. No objection was made during the trial to any alleged transgressions by the trial judge. The first mention of this is found in the motion for new trial. “A party who believes, however, that the remarks of the court at the trial have prejudiced his cause must object immediately so that the court may correct any erroneous impression. It is not enough to make the claim of prejudice for the first time on the motion for new trial.” State v. Brown, 524 S.W.2d 188, 189[1-3] (Mo.App.1975).

As to the claimed misconduct of the prosecuting attorney in cross-examination of the defendant and his argument to the jury, a careful reading of the transcript shows that each of these incidents was either not objected to, or, when proper objection was made, the objection was sustained and the requested relief granted. When no objection is made to questions asked defendant on cross-examination, nothing is preserved for review. State v. Lafferty, 415 S.W.2d 792, 795[1] (Mo.1967). Failure to object to improper argument by the prosecuting attorney has the same consequences. State v. Carter, 478 S.W.2d 358, 361[4] (Mo.1972).

Defendant suggests, however, that we should consider his first two points as “plain error.” Rule 27.20(c), V.A.M.R. Before a court should apply the plain error rule there must be a strong, clear showing that injustice or a miscarriage of justice will otherwise result; and when guilt is established by overwhelming evidence no injustice or miscarriage of justice will result from refusal to invoke the rule. State v. Wendell, 542 S.W.2d 339, 343[12-14 and 15, 16] (Mo.App.1976). A brief statement of facts will show this is not a proper case for application of Rule 27.20(e).

On September 20, 1973, defendant, having just lost his job at the Zenith factory in Springfield, had been drinking steadily all day (about one “screwdriver” per hour) but at no time actually became intoxicated. About 8:30 or 9:00 p. m. he went to a Springfield nightclub known as the Embers Inn. At about 10:00 or 10:30 p. m., Debbie Griffin and her friend Kathy Roberts arrived at the Embers Inn. Defendant had been dating Debbie for two or three weeks and was in love with her and admitted to being jealous of her. The three took a table together but after two other men, friends of Kathy Roberts, joined them, the defendant became angry and moved to another table.

While defendant was at the table with Debbie he showed her a .25 caliber, semiautomatic pistol which he took from his pocket and placed in her purse but at her insistence, he returned it to his pocket before leaving the table. Defendant testified that he was carrying the weapon because he had been assaulted by two strangers on the Embers parking lot two nights earlier. He testified that he normally kept the weapon loaded with a round in the chamber and the safety in the off position ready to fire and that it was in this condition on the night in question. Defendant stated that he had fired the pistol on prior occasions and that it had a “soft” trigger.

Debbie Griffin had previously dated Ceci-lio Cardona, the victim, but had broken up with him some two or three months earlier because Debbie had decided to go back to her husband. At that time Cardona had struck Debbie causing injuries that required three days’ hospitalization. On at least one other occasion he had slapped her, and Debbie was afraid of Cardona and had avoided him. She had told defendant of her fear of Cardona, but defendant had never met Car-dona.

Cardona arrived at the Embers Inn before midnight and joined Debbie at her table and began dancing with her. The defendant encountered Debbie near the restrooms and learned Cardona’s identity. One witness, Linda Ellingsworth, testified that the defendant pushed Cardona at the restroom door but this was denied by defendant and was not seen by any other witness. She also testified that defendant approached Cardona and Debbie on the dance floor and ordered them outside but this was denied by both defendant and Debbie. It is clear, however, that defendant became increasingly angry, being particularly incensed when Debbie danced “Good Time Charlie” with Cardona, this being “their” (that is, defendant and Debbie’s) song.

At this point, Debbie asked Cardona to go outside with her and they were immediately followed by the defendant. Kathy Roberts, who was dancing with Ron Lindsey, observed this and accompanied by Lindsey, followed the defendant outside. Outside the building defendant seized the front of Cardona’s clothing with his left hand and pushed him against the wall and held the pistol with his right hand a few inches from Cardona’s face. Debbie pleaded with defendant not to shoot Cardona and took hold of his arm but was shoved back against a car by defendant. It is not clear whether either Kathy Roberts or Ron Lindsey took hold of the defendant, but all three witnesses, Debbie, Kathy, and Lindsey, testified that none of them was touching defendant when the pistol was fired.

Defendant testified that he followed Debbie and Cardona outside because he feared for Debbie’s safety; that he pushed Cardo-na against the wall to tell him to leave Debbie alone; that he used the pistol to prevent a fight; that he did not intend to shoot Cardona and did not intentionally pull the trigger; that the pistol was fired accidentally when Cardona took hold of his hand or the pistol and pushed defendant back. Debbie, Kathy, and Lindsey denied that Cardona fought or struggled with defendant but agreed that the pair had moved out away from the wall before the shot was fired.

The bullet entered Cardona’s right upper lip just below the right nostril and traveled upward and to the left coming to rest against the left parietal skull which was fractured by the impact. Defendant claimed that he was leaning back when the shot was fired but Ron Lindsey and Kathy Roberts stated that Cardona was bent backwards when the shot was fired. Cardona fell to the ground. Defendant told the others to “split,” and then left in his car, driving to his residence and transferring to his motorcycle and continuing west on Interstate 44. He was arrested at 3:20 a. m. that same morning by Oklahoma officers at the Glass House Restaurant near Miami, Oklahoma.

We find that defendant’s guilt of manslaughter was established by overwhelming evidence. Therefore, we do not deem “that manifest injustice or miscarriage of justice has resulted” from the alleged errors set out in defendant’s first two points and, since these points were not preserved for review, they are rejected.

Defendant’s third point claims error in letting the jury see State’s Exhibit “5”, which is a photograph of deceased showing the left side of his head with dried blood from the nose and mouth region back to just below the ear. Defendant contends that Exhibit “5” did not prove any fact not otherwise shown by oral testimony and therefore its probative value was negligible and was far outweighed by its prejudicial effect upon the jury.

When it is material to the issues, a photograph of the deceased may be admissible in a prosecution for homicide even though it is gruesome or shocking and may tend to excite the passion of the jury, provided the probative value of the exhibit outweighs the danger of prejudice to the accused. It is not a valid objection that the evidence depicted by the photograph has been given by oral testimony or that it is cumulative. In this determination, the trial court owns a wide discretion. State v. Brown, supra, 524 S.W.2d at 190[5-8]; State v. McClain, 536 S.W.2d 45, 46[1] (Mo.App.1976).

When the state first requested leave to show Exhibit “5” to the jury, the trial court denied the request. Later in the trial Linda Ellingsworth testified that she saw the defendant push a man into the restroom door and that it caught her attention because she thought the man being pushed was a Negro. Exhibit “5” shows the deceased to be dark complexioned and with curly hair and was identified by the witness as the man she saw being pushed. The state again requested leave to show the photograph to the jury and the trial court, after examining the exhibit, granted the request. Under these circumstances the trial court did not abuse its discretion in permitting the jury to see the exhibit.

The judgment is affirmed.

All concur.


author: HARBISON, Justice.

text:
    The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Tennessee, et al., Appellants, v. Earl C. SHACKLETT, Jr., and the Tennessee Alcoholic Beverage Commission, Appellees. The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Tennessee, et al., Appellants-Appellees, v. Bernard L. WEINSTEIN and the Tennessee Alcoholic Beverage Commission et al., Appellees-Appellants.
    Supreme Court of Tennessee.
    Jan. 24, 1977.

      Robert W. Rutherford, Metro Department of Law, Nashville, for appellants.
    Thomas A. Wiseman Jr., Nashville, William C. Koch, Jr., Asst. Atty. Gen., Nashville, Brooks McLemore, Jr., Atty. Gen. (of counsel), for appellees.
    Robert E. L. Sutton, Franklin D. Brab-son, William J. Faimon, Bart C. Durham, III, James R. Omer, David M. Pack, Walter S. Clark, Jr., Harris A. Gilbert, William R. Willis, Jr., John D. Lentz, Nashville, for appellees-appellants.
   HARBISON, Justice.

In these consolidated cases review is sought by the Metropolitan Government of Nashville and Davidson County, Tennessee of the action of the Chancellor in ordering the issuance of nineteen certificates of good moral character and retail liquor licenses. Seven of these applications had been denied by the Tennessee Alcoholic Beverage Commission, but its action as to these was reversed by the Chancellor. The Commission appeals from that portion of his decision.

Both the Alcoholic Beverage Commission and the Chancellor, upon an evidentiary record made before the Commission, held arbitrary and unreasonable a municipal ordinance of the Metropolitan Government restricting the location of retail package liquor stores to a specified or “segregated” area of the Urban Services District. It was stipulated that all of the applicants whose cases are now before the Court are persons of good moral character according to “traditional guidelines”. The Metropolitan Government declined to issue certificates of such character to the applicants because their proposed liquor outlets were located outside of the area specified in the municipal ordinance. On review pursuant to T.C.A. § 57-121, the Commission granted twelve applications for locations within the Urban Services District and denied the seven involved in its appeal here. The Chancellor reversed this latter action on the ground that the Commission had established no satisfactory criteria or standards for the granting of some applications and denial of others.

Jurisdictional and procedural issues were raised in the trial court and are urged here by the Tennessee Alcoholic Beverage Commission. We will dispose of these before considering the other issues on appeal.

I. Jurisdiction of the Chancery Court and Review under the Uniform Administrative Procedures Act

Prior to the adoption and effective date of the Uniform Administrative Procedures Act, T.C.A. §§ 4-507, et seq., review of orders of the Alcoholic Beverage Commission was had in the first instance by petition for common law writ of certiorari to the Circuit Court of Davidson County. T.C.A. § 57-127. It was provided in that statute that review in the circuit court should be “solely upon the pleadings and the transcript of the proceedings before the commission, and neither party shall be entitled to introduce new evidence in the circuit court.” Provision was made for direct appeal to the Supreme Court and re-examination there “of the whole matter of law and fact appearing in the record.” These statutory provisions were made “the exclusive method of reviewing all orders of the commission issued pursuant to hearings authorized by §§ 57-106-57-151.”

A number of reported cases dealing with liquor licenses and certificates of good moral character appear to have reached both the trial courts and this Court by actions in chancery, or some other method than the statutory provisions just cited. See Boyd v. Burmaster, 193 Tenn. 338, 246 S.W.2d 36 (1952); State ex rel Brown v. McCanless, 184 Tenn. 83, 195 S.W.2d 619 (1946). In those cases the foregoing statutory provisions were apparently not called to the attention of the Court, and they were not considered in the opinions.

In cases where the issue has been discussed, however, it is clear that, despite the broad wording of T.C.A. § 57-127 as to the scope of review, the courts have considered review as being confined to legal issues, such as whether the Commission acted illegally, arbitrarily, or fraudulently, or to determining whether factual findings of the Commission were supported by material evidence in the record. See City of Chattanooga v. Tennessee Alcoholic Beverage Commission, 525 S.W.2d 470, 478 (Tenn.1975); Little v. MacFarland, 206 Tenn. 665, 337 S.W.2d 233 (1960).

All of the applications in the present case were considered by the Commission after the effective date of the Uniform Administrative Procedures Act. All were reviewed in the Chancery Court of Davidson County, rather than the Circuit Court, contrary to the insistence of the Commission that review lay exclusively in the latter court under the provisions of T.C.A. § 57-127.

The Uniform Administrative Procedures Act is a comprehensive statute, providing for proceedings before most of the state boards, commissions, departments or units of state government “authorized or required by any statute or constitutional provision to make rules or to determine contested cases.” T.C.A. § 4-508(a). Some of the state departments or agencies are expressly exempted from the coverage of the Act, and the Governor is authorized to exempt others. The Act does not exempt the Tennessee Alcoholic Beverage Commission and no executive action exempting it has been cited.

At T.C.A. § 4-525, it is expressly provided that the Act shall not be construed as being in derogation of the common law, but it shall be construed “as remedial legislation designed to clarify and bring uniformity to the procedure of state administrative agencies and judicial review of their determination . . ..”

This section further provides that T.C.A. § 65-210, dealing with procedures before the Tennessee Public Service Commission, is not repealed by the Administrative Procedures, Act, but it is then stated:

“In any other case of conflict between §§ 4r-507 — 4—527 and any procedural administrative statute, whether general or specific, §§ 4r-507 — 4-527 shall control, however, compliance with the procedures prescribed by this statute does not obviate the necessity of complying with procedures prescribed by other sections of Tennessee Code Annotated.” T.C.A. § 4-525(b).

It is a general principle of statutory construction that repeals by implication are not favored. However, in view of the stated legislative purpose in enacting the Uniform Administrative Procedures Act, we are of the opinion that the provisions for judicial review of orders of the Alcoholic Beverage Commission contained in T.C.A. § 57-127 are superseded and repealed by T.C.A. § 4-507 et seq., to the extent of any conflict or inconsistency in the two sets of statutory provisions.

The scope of review in the trial court of an order of an administrative agency is defined in T.C.A. § 4-523(h). See Sewell, Judicial Review and the Uniform Administrative Procedures Act, 6 Memphis State L.Rev. 253, 274 (1976).

It is clear from the language of the statute that the review provided in the chancery court is in no sense a broad, or de novo, review. Review is confined to the record made before the agency, except in cases of “alleged irregularities in procedure before the agency, not shown in the record . ..” T.C.A. § 4-523(g). The trial court is required to determine whether the agency acted within the scope of its statutory authority, and in conformity generally with statutory and constitutional provisions, whether it followed proper procedures, whether its decisions were arbitrary, capricious or in abuse of discretion, and whether its conclusions are supported by material and substantial evidence in the record. T.C.A. § 4-523(h).

As pointed out by Professor Sewell in the article cited above, these criteria for review of administrative actions are not particularly new and in the present cases do not differ greatly from standards employed under the former procedural statutes.

With respect to appellate review, provision is made for direct appeal to this Court “as in chancery cases.” T.C.A. § 4-524. This language is not without difficulty... Ordinarily review of chancery cases on appeal is governed by T.C.A. § 27-301, which provides that an appealing party in an equity case may “have a reexamination . of the whole matter of law and fact appearing in the record.” Further, T.C.A. § 27-303 provides that in nonjury cases in law or equity, review may be had “upon a simple appeal, as now provided in equity cases . .” The scope of review in such cases “shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the judgment or decree of the trial court, unless the preponderance of the evidence is otherwise.”

We do not believe that the drafters of the Administrative Procedures Act intended that there be a broad, or de novo, review in this Court of the decision of a trial judge, when his action, initially, is confined to a narrow and statutorily prescribed review of the record made before the administrative agency. We consider that it would be impracticable for this Court to afford any broader or more comprehensive review to cases arising under the Act than is afforded to them by the trial court in the first instance, except, of course, this Court can review for the first time any new or additional evidence introduced in the chancery court with respect to “alleged irregularities in procedure” before the agency as provided in T.C.A. § 4-523(g). Therefore we do not deem the words “as in chancery cases” contained in T.C.A. § 4-524 to be definitive of the scope of review to be given such cases in this Court, but merely as descriptive of the general procedure to be followed in bringing cases from the chancery court to this Court, where procedures are not otherwise expressly set out in the Administrative Procedures Act itself.

We accordingly are of the opinion that these cases were correctly brought to the chancery court for review in the first instance, and that they have been properly appealed here pursuant to the provisions of the Administrative Procedures Act. The assignments of error made by the Alcoholic Beverage Commission as to these issues are overruled.

II. Validity of the Metropolitan Ordinance

As presented to the Chancellor and to this Court, all of the substantive issues in the appeals of Metropolitan Government involve its ordinance creating a segregated zone for the location of retail liquor outlets. However, there is very little testimony in the record concerning the ordinance. An uncertified copy of what purports to be § 5-2-3 of the Metropolitan Ordinances was filed before the Commission, and all parties have treated this as being the ordinance in question, creating a restricted zone. This zone is also depicted upon a map filed in evidence, and it was stipulated that if an official of the Metropolitan Government were called to testify, he would state that the map correctly shows the present boundaries of the segregated area.

There are references in the transcripts to other ordinances of the Metropolitan Government dealing with the regulation and location of liquor stores, but these ordinances have not been filed with the record on appeal.

It is a rather fundamental principle of evidence in this state that the courts cannot and do not take judicial notice of municipal ordinances, for the simple reason that they are not readily available and they may be amended at frequent intervals. In cases involving such ordinances, therefore, it is necessary for the parties to stipulate the existence and the accurate texts of ordinances, or else to prove the same through municipal officials, or by supplying certified copies in accordance with Rule 44 of the Tennessee Rules of Civil Procedure. This rule is not altered by the fact that a large municipality, such as the Metropolitan Government, may authorize codification and publication in official form of its collected ordinances, because, again, these ordinances frequently can be and are amended by subsequent action of the governing body. Judicial notice is frequently taken of matters of general knowledge, as a substitute for the production of evidence, but the courts of this state, as a general proposition, have never included municipal ordinances or regulations within the sphere of subjects to which judicial notice extends. See State ex rel Schmittou v. City of Nashville, 208 Tenn. 290, 345 S.W.2d 874 (1961); Guidi v. City of Memphis, 196 Tenn. 13, 263 S.W.2d 532 (1953); Brimer v. Jefferson City, 187 Tenn. 467, 216 S.W.2d 1 (1948); Grady v. Bryant, 506 S.W.2d 159 (Tenn.App.1973).

In view of the stipulation of the parties, the Court accepts the definition of the segregated area of the Metropolitan Government as contained in the copy of the ordinance filed in the record, despite its lack of official certification. There is a total lack of evidence in the record, however, as to the history of this ordinance or the reasons for its being. The published copy filed in the record refers to a 1960 Code of the City of Nashville as its source. The latter is not before the Court. At one point in the record, counsel for the Metropolitan Government stated “I would say you could say the boundaries have been established since 1900 or before”, with only “fairly insignificant” alterations. No witness testified in these cases as to how the present zone and its boundaries came to be established, or the reasons for their existence. Of course mere statements of counsel are not evidence or a substitute for testimony.

An all-out attack was made upon the Metropolitan ordinance in these cases. Some thirty-six or more applications for locations outside of the segregated zone were filed within a short time after the release of the opinions of this Court in the case of City of Chattanooga v. Tennessee Alcoholic Beverage Commission, 525 S.W.2d 470 (Tenn.1975). In the face of the deluge of applications for location of retail liquor outlets beyond the limits of the segregated area, the Metropolitan Government of Nashville and Davidson County has merely relied upon a general presumption of the validity of city ordinances, and has not offered a single witness to testify why the location of retail liquor stores should be confined to the zone shown in the subject ordinance, which admittedly was established no later than 1960, and probably was created many years prior to that date.

The record shows that one attempt was made to amend the segregated area by the Metropolitan Council after these proceed-, ings began, but it does not appear that the amendment was adopted. In the hearings before the Alcoholic Beverage Commission counsel for the Metropolitan Government suggested on several occasions that the Commission grant additional time to Metropolitan officials to consider such an amendment. These hearings extended over many months, commencing in October 1975 and concluding in April 1976. Pinal adjudication of the cases was not had in the Chancery Court until August, 1976. During this protracted period, while its ordinances were under sharp attack, the Metropolitan Government neither amended them nor called witnesses to justify them or defend them.

It is true that a number of pertinent facts were stipulated in the record. In addition to showing the established boundaries of the segregated zone, these stipulations revealed the population of the Urban Services District and the General Services District of Metropolitan Government, and included numerous census data as to population density and projections. From the stipulated facts the parties draw differing inferences and conclusions. Neither the history of the segregated zone, however, nor the reasons why Metropolitan officials feel that it is necessary were offered, in the face of multiple applications making a direct challenge to it.

The Urban Services District of the Metropolitan Government is designated by statute as a “municipality” for certain purposes, including the retail package sale of alcoholic beverages. T.C.A. § 6-3717. The record reveals that the boundaries of the Urban Services District have been substantially increased by annexation'since the establishment of Metropolitan Government in 1963, but it does not show any changes or expansion of the established zone for retail liquor outlets. Unlike the ordinance under consideration in the City of Chattanooga case, supra, the Metropolitan ordinance does not prescribe any fixed number of retail outlets which may be established in the segregated area. Further, it is much larger, proportionately, than the zone established by the Chattanooga ordinance. It is, however, confined to the inner city of metropolitan Nashville, well away from the growing centers of population in the Urban Services District. While the zone for retail package stores has remained unchanged, its boundaries do not by any means coincide with the areas in which licenses for the dispensation of liquor by the drink have been issued. Establishments dispensing liquor in this manner have been licensed widely throughout the Urban Services District. While the considerations for retail package sales may not be identical, nevertheless it is forcefully argued on behalf of the applicants for licenses in these cases that their applications are not, in most instances, being made in areas where alcoholic beverages are inaccessible.

Both the Alcoholic Beverage Commission and the Chancellor, in reviewing the record which was made before the Commission, concluded that the Metropolitan Government failed to justify the existence of its segregated area, at least in the sense that it failed to show any reason why the boundaries of the same should be considered ironclad or inflexible, and should not be extended into other areas of commercial activity and population growth. Both concluded that the ordinance was, therefore, arbitrary and unreasonable in light of changed conditions in the Urban Services District since the Metropolitan Government was instituted. From our review of the record, we are unable to say that these conclusions are without foundation or evidentiary support in the record.

In its first assignment of error the Metropolitan Government asserts that the Chancellor erred in holding that a municipality has no power to limit permissible locations for retail liquor stores. We do not find this to be the holding of either the Alcoholic Beverage Commission or the Chancellor. Both recognized that the existing Tennessee statutory scheme for regulation of such stores envisions a dual system of control, participated in both by the local governments and by the Commission. Indeed, in reviewing the various applications made to it, the Commission observed and enforced a number of metropolitan ordinances, other than that establishing the segregated zone. While these ordinances are not in the record, there are numerous references in the transcript showing adherence by the Commission to commercial zoning ordinances and to others fixing residence requirements for licensees and prescribing the location of liquor outlets with respect to schools, churches, other liquor stores and the like. The only Metropolitan ordinance which was challenged and the only one declared to be unreasonable or arbitrary was that fixing the boundaries of the segregated zone. Repeatedly the hearing officers indicated that they would be willing to co-operate with the Metropolitan officials in the adjustment or relocation of these boundaries.

The supremacy of the state government and its regulating agency, the Tennessee Alcoholic Beverage Commission, in case of conflict between state and local regulatory measures, has been recognized by the courts since the enactment of the original statutes on the subject in 1939. Thus in the case of State ex rel Brown v. McCanless, 184 Tenn. 83, 195 S.W.2d 619 (1946), the Court sustained a regulation of the Commissioner of Finance and Taxation (predecessor of the Tennessee Alcoholic Beverage Commission) as against one promulgated by an ordinance of the City of Nashville. The Court said:

“The legislature did not intend to subordinate the statutory authority of the commissioner of finance and taxation to the varying wishes of varying boards of mayor and aldermen. If there is a conflict between the municipal (mayor and aldermen) and State (commissioner) regulations, that imposed by the latter would prevail, since by Chapter 49 of the Public Acts of 1939 the final authority to license the sale of intoxicating liquor is in the commissioner. Action of the municipal authority is advisory merely.” 184 Tenn. at 90, 195 S.W.2d at 622.

In the case of City of Lakewood v. Tennessee Alcoholic Beverage Commission, 219 Tenn. 510, 410 S.W.2d 897 (1967), this Court explicitly held that the Commission was authorized to pass upon the reasonableness of municipal ordinances, and that in reviewing ordinances it was exercising a quasi-judicial function which was expressly within its statutory grant of authority.

In light of these holdings, a municipality, faced with a broad-scaled attack upon its ordinances before the Commission, can hardly rely upon a general presumption of validity and make no active effort to justify the existence of ordinances brought squarely under the scrutiny of the Commission.

All parties in this litigation have cited and have given varying interpretations to the opinions of this Court in the case of City of Chattanooga v. Tennessee Alcoholic Beverage Commission, 525 S.W.2d 470 (1975). In that case a majority of the Court held that municipal governments have a legitimate role in regulating the number and location of retail package liquor outlets within their boundaries. Two members of the Court were of the opinion that local governments have had no statutory authority in this area since the enactment of certain amendments to the liquor statutes in 1949, other than in connection with the issuance of certificates of good moral character. While some members of the Court felt that cities might continue to exercise a degree of control through the granting or denial of certificates of good moral character, the majority disagreed and held that such certificates should be issued or denied without respect to the location or number of liquor stores, and solely with reference to the personal fitness of the applicants.

If accomplishing nothing else, perhaps the issuance of the various opinions by the members of this Court in that ease pointed up the lack of clarity in the existing statutes, and the need for revision of the same. It is recognized by this Court that the General Assembly has plenary power over the subject of sale and distribution of alcoholic beverages, including the authority to prohibit the same entirely within this State if it should see fit to do so. See Barnes v. City of Dayton, 216 Tenn. 400, 392 S.W.2d 813 (1965); State ex rel Major v. Cummings, 178 Tenn. 378, 158 S.W.2d 713 (1942). It has been stated in at least two cases that no regulation of intoxicating liquor is beyond the police power of the state. Terry v. Evans, 189 Tenn. 345, 225 S.W.2d 255 (1949); McCanless v. Klein, 182 Tenn. 631, 188 S.W.2d 745 (1945).

In the exercise of its very broad powers in this field, the General Assembly could wholly exclude local governments from any role whatever and place exclusive control of the sale and distribution of alcoholic beverages in the state government. It could even provide for a system of state-owned liquor stores, if it felt this were appropriate. On the other hand it could remove state government from regulation, and place the subject entirely in the hands of local government or, of course, it could remove all controls and permit alcoholic beverages to be dispensed in the same manner as ordinary articles of food and drink.

The members of the Court have not altered their opinions on this subject since the decision in the City of Chattanooga case, supra. The majority still are of the opinion that under existing state statutes, local governments do have a role in prescribing the location and number of retail liquor outlets within their boundaries. Under the opinions of the plurality in that case, such control can no longer be exercised through the granting or withholding of certificates of good moral character, except in actual character investigations of the applicants. In the opinion of the majority of the members of the Court, however, regulatory ordinances on the subject, such as those of the Metropolitan Government which were upheld by the Commission in this case, are permissible. We have previously mentioned that the Commission recognized and applied Metropolitan ordinances dealing with the residence of applicants, the location of retail outlets with respect to educational institutions, churches, etc., and commercial zoning ordinances.

We are not prepared to hold, nor do we hold in this case, that a municipality could never establish a “segregated zone”. In the present day of widespread commercial activity and the grouping of retail outlets in shopping centers near areas of great population density, however, real and substantial reasons for the existence of a segregated zone must be demonstrated by municipal authorities. It is sufficient to say that such reasons were not demonstrated in the present case, or in the Chattanooga case.

Even those members of the Court who believe that existing statutes authorize a legitimate role for local government in this field have difficulty with the position of the Metropolitan Government as developed in the present records. From the standpoint of inspection, regulation, police protection or the general welfare, it is possible that a segregated zone such as that established by the Metropolitan Government may serve a legitimate purpose. Such ordinances have been upheld in a number of other states. See 45 Am.Jur.2d, Intoxicating Liquors, § 139. On the other hand, in a day of rapid transit in a large urban community, such a zone may be utterly useless. These are matters of proof, to be established by competent evidence. The Metropolitan Government simply offered none, in the face of persuasive evidence by the applicants that they should be permitted licenses near shopping centers and other commercial areas.

As pointed out in the opinion of Justice Henry in the City of Chattanooga case, the regulation of the liquor industry is frequently an emotionally-charged issue. If, as the majority of this Court have concluded, present statutes do authorize the existence of a dual system of control, with the State and its agencies having the dominant role, it is indeed unfortunate when conflicts and friction develop between the regulatory bodies. In the absence of further legislative action on the subject, however, we are constrained to hold, as the Court did in the City of Lakewood case, supra, that the Commission has the authority to review local ordinances and to determine their reasonableness or consistency with state statutes and policy. The action of the Commission itself is subject to judicial review. As previously stated, from our review of the record we are unable to reach any different conclusions from those expressed by the Chancellor when he upheld the action of the Commission.

The Metropolitan Government has not challenged on appeal the qualifications of any of the twelve applicants involved in its appeal. Its assignments of error deal only with its ordinance creating a segregated zone and the application of that single ordinance in the denial of certificates of good moral character. We therefore have not deemed it necessary to discuss the individual applications separately.

The assignments of error of the Metropolitan Government in each of the cases which it appealed are overruled.

III. Appeal of the Alcoholic Beverage Commission

The Alcoholic Beverage Commission considered a massive group of applications for retail liquor licenses outside of the segregated zone of the Urban Services District in hearings held between October 1975 and April 1976. Ultimately it granted twelve applications and denied the remainder. Nine of the persons whose applications were denied filed petitions for judicial review in the Chancery Court under the Uniform Administrative Procedures Act, and seven of these remain in the case before this Court.

After concluding that the Metropolitan ordinance creating a segregated zone was arbitrary and unreasonable, the Chancellor overruled the assignments of error made to him by the Metropolitan Government, and affirmed the Commission in granting the twelve applications involved in the Metropolitan Government’s appeal.

With respect to the seven applicants who had been denied a license, however, the Chancellor concluded that the Commission itself had acted arbitrarily and capriciously, and without established criteria to differentiate between those applications which were granted and those which were denied. He accordingly ordered all seven of these applications to be granted, apparently assuming in each case that all requirements of state law and of local ordinances had been complied with by the applicants, other than with respect to the location of their proposed outlets.

This assumption on the part of the Chancellor is not borne out by an examination of the record. Unfortunately, the Chancellor probably was misled by the form and method in which the Commission disposed of all nineteen applications which were brought to him for review. Instead of making detailed findings of fact and conclusions of law in each case, with specific reference to each applicant, the Hearing Examiners wrote a six-page opinion, which was mimeographed and used in each of the cases. This opinion discusses in a general manner the approaches which the examiners utilized in granting some licenses and denying others. It summarizes the opinions of this Court in the Chattanooga case, supra, and contains the ultimate conclusion that the Metropolitan ordinance creating a segregated zone is arbitrary and unreasonable. After reciting several general factors which the Hearing Examiners had taken into account, including local ordinances, business ability of the applicants, desirability of the proposed sites, and other general statements, each order concludes abruptly with a recommendation that a particular license be granted or denied.

This form of findings of fact and conclusions of law does not comply with T.C.A. § 4-519, which requires that in contested cases

“A final decision shall include findings of fact, conclusions of law, and reasons for the ultimate decision. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.”

None of the seven unsuccessful applicants could tell from the findings of the Hearing Examiners why his particular application was denied. Both the Chancellor and this Court are in the same situation.

Nevertheless, the liquor industry is highly regulated, and no individual seeking a retail liquor license has any inherent right to be granted one. Safier v. Atkins, 199 Tenn. 574, 288 S.W.2d 441 (1956). The Commission has wide discretion in the granting or denying of liquor licenses, and courts do not lightly interfere with the exercise thereof. State ex rel Nixon v. McCanless, 176 Tenn. 352, 354, 141 S.W.2d 885 (1940).

We have undertaken to examine the record in each of the seven cases in which applications were denied, and we are not convinced that the Commission acted as arbitrarily or capriciously as the Chancellor concluded, because there is material evidence apparent in at least some of the transcripts upon which denials could have been predicated. Unfortunately the pleadings before the Chancellor were cast in the most general terms, and neither in pleadings nor in briefs has counsel for the Commission delineated the reasons, on a case-by-case basis, upon which these seven applications could have been denied. We will discuss them briefly, however, before making a disposition of the assignments of error filed on behalf of the Commission to the action of the Chancellor in granting all seven applications.

In his application for a license, Mr. Emmett Webb, Jr., showed that he resided at an address in Williamson County, Tennessee. He testified before the Commission that he had lived in Williamson County during all of the time when his application for a retail liquor license in Metropolitan Nashville had been pending. There is, according to the record, an ordinance of the Metropolitan Government requiring that an applicant for a retail liquor license reside in Davidson County for at least two years prior to the date of his application. One of the questions contained on the application submitted by Mr. Webb to the Metropolitan Government was whether or not he had so resided in Davidson County, and his answer on the application was in the affirmative. Nevertheless, when he testified before the Commission, he testified that he had lived in Williamson County for more than two years prior to applying.

In his mimeographed proposed findings of fact and conclusions of law, applicable to all nineteen of the present cases, the Hearing Examiner stated:

“We have tried to observe city ordinances if they were reasonable and in at least one instance an applicant did not reside in Davidson County as required by city ordinance.”

From our examination of the records, Mr. Webb was the only unsuccessful applicant who did not reside in Davidson County, so that the hearing examiner probably was referring to this application. He did not so state in his recommended findings, however, and the Commissioners simply entered a form order to the effect that Metropolitan Government had not acted arbitrarily or unreasonably in denying this application. From our review of the record, it appears that there may be material evidence to support this conclusion of the Commission.

In connection with the application of Thomas S. Garmon, the Metropolitan Government did not stipulate that his proposed liquor outlet was situated more than fifty feet from a private residence, as required by local ordinances. There is no evidence in the record that the site does lie more than the required distance from private residences, and, again, this may be a sufficient reason to support the Commission’s conclusion that Metropolitan Government had not arbitrarily denied Mr. Gar-mon’s application.

Two of the applicants who were denied did not seek new licenses but made requests for transfers of existing licenses. These were the cases of Thomas W. Moon and Paul L. Budslick, Jr.

There is, of course, no absolute right for the holder of a license at one prescribed location to transfer the same. The statutes on the subject provide:

“Except as expressly authorized, there shall be no transfer of any permit from the holder thereof to another, nor, except in special instances to be fixed by rule or regulation of the commission, any transfer thereof from one location to another." T.C.A. § 57-125. (Emphasis added).

Whether the Commission has any rules governing such transfers simply does not appear in this record, but certainly neither of these persons can claim any vested right to a transfer. Mr. Moon had had a license for some three or four months on a liquor store which he had purchased on Eighth Avenue, North, and Mr. Budslick had had a license for a few months at a site located at 193 North First Street. There were several applications already pending before the Commission for new licenses in the general area where these applicants proposed to transfer. Therefore, again, in connection with these two cases it is not clear to us as a reviewing court that the Commission acted arbitrarily or capriciously in the denial of the transfer applications. It may have had sufficient reasons for doing so.

Its reasons for denial in the other three cases, those of Robert Alvin Burns, Mrs. Jane Eakes and Mel J. Friedland were not stated, but questions as to the desirability or appropriateness of each of their proposed sites do appear to have been raised in their respective hearings.

The Commission was perhaps faced with an unusual and unprecedented situation in dealing with a large number of applications in a city where it found a local regulatory ordinance to be invalid or insufficient. It is apparent from an examination of all of the records in these cases that the validity of the segregated zone was the central issue. Almost all other issues became blurred or pushed into the background. Many of the hearings were quite abbreviated. Nevertheless, on several occasions, the Hearing Examiner stated to counsel that the validity or invalidity of the segregated zone was not the sole criterion upon which a retail liquor license should be granted or denied to any particular applicant on petition to the Commission, even though this may have been the only reason assigned by Metropolitan Government for its original denial of a certificate of good moral character or a license transfer. The Commission is the primary regulating body, and must take into account many factors, most of which were simply sketched in very lightly or not treated at all in the instant hearings, because of the primary focus upon the ordinance restricting liquor store sites to downtown Nashville.

Since the hearings in the present case, and primarily as a result of the opinion of the Chancellor in reviewing them, the Commission has published in the Tennessee Administrative Register, Vol. 2, No. 9, under date of September 15, 1976, some emergency amendments to its rules, purporting to establish criteria and factors which it will take into account in cases where it finds a regulatory ordinance of local government to be arbitrary or unreasonable. It had not published such standards or criteria at the time of the hearings in question, but we have already stated that there does appear, at least in some of the applications which were denied, material evidence upon which the applications might have been denied, wholly unrelated to the issue of the segregated zone of Metropolitan Government.

For this reason, we reverse the action of the Chancellor in ordering all seven of these licenses granted as applied for, and remand all seven cases to the Commission for the entry of explicit and detailed findings of fact and conclusions of law in each case, showing why the application of each of the named individuals should or should not be granted. In its discretion the Commission may permit the introduction of further evidence, and its actions will be, of course, subject to further judicial review if desired. In light of the evidence which was adduced in the present records, we do not approve a blanket order directing that all of the licenses issue, nor are we satisfied with the denial of any of the applications without an express statement by the Commission of its reasons for such denial.

IV. Conclusion

It results that the action of the Chancellor is affirmed, insofar as he upheld the action of the Commission in ordering the issuance of the twelve applications involved in the appeal of the Metropolitan Government. His action is reversed insofar as he ordered the seven other applications to be granted, and those seven cases are remanded to the Commission for further proceedings consistent herewith.

The costs, in each of these consolidated cases are taxed to the respective applicants. T.C.A. § 57-127 expressly prohibits the taxation of costs against the Commission in all cases where review of its action is sought, and we do not deem it to be in the public interest to tax costs to the Metropolitan Government in the cases of the twelve successful applicants. At least in these cases, we are of the opinion that the accrued costs should properly be regarded as a part of the expenses incurred in the licensing process.

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

HENRY, J., not participating.

      . Actually the Commission denied some twenty-four or more applications. In only nine cases was judicial review sought. Two of them involved proposed sites in the General Services District, and the Chancellor concurred with the Commission in denial of those because that District is not a “municipality” under the liquor laws involved here. No appeal has been taken in those two cases.

      . The provisions of this new and significant statute were discussed in a symposium published in the Memphis State University Law Review, Vol. 6, No. 2 (1976). One of the articles in the issue was devoted entirely to the coverage of the Act. See Blank, Scope of the Tennessee Uniform Administrative Procedures Act, 6 Memphis State L.Rev. 159 (1976).


author: COOPER, Chief Justice.

text:
    TENNESSEE PUBLIC SERVICE COMMISSION, Appellant, v. SOUTHERN RAILWAY COMPANY, Appellee.
    Supreme Court of Tennessee.
    Aug. 15, 1977.
    Eugene W. Ward, Gen. Counsel, Thomas Eldridge, Asst. Gen. Counsel, Tenn. Public Service Com’n, Nashville, for appellant.
    F. Clay Bailey, Jr., Nashville, Clyde W. Key, Knoxville, for appellee.
   OPINION

COOPER, Chief Justice.

On September 11, 1975, a small wooden bridge passing over tracks owned by the Southern Railway Company caught fire and was completely destroyed. The bridge, and the unimproved gravel road which it carried, had provided Mrs. Sally Young with access to her home. On January 20, 1976, the Tennessee Public Service Commission issued an order, requiring the Southern Railway Company to appear and show cause why it should not be required to rebuild the bridge. The order was issued under the authority of T.C.A. § 65-331, which in pertinent part provides as follows:

The Tennessee public service commission shall have the power and authority to inspect the conditions existing on trains or along the rights of way, yards, and terminals of all commercial railroads, . to the end that safety, health and comfort of the general public and employees may be preserved and that dangerous or unhealthy conditions on trains or along the rights of way, yards, and terminals, if found to exist, may be abated by the order of the commission.

After a hearing, the Commission found that the absence of the bridge, in that it deprived Mrs. Young of any reasonable means of reaching her property, constituted a dangerous or unhealthy condition along the Southern right-of-way within the meaning of the above statute. Accordingly, the Commission ordered the railroad to rebuild the bridge.

The railroad appealed the order to the Chancery Court for Davidson County. The chancellor reversed the decision of the Commission and set aside the order, holding that the Commission had no authority to order the restoration of the burned out bridge, in that it was not such a condition as fell within the purview of the statute.

Any authority exercised by the Public Service Commission must be as the result of an express grant of authority by statute or arise by necessary implication from the expressed statutory grant of power. Pharr v. Nashville, Chattanooga and St. Louis Railway, 186 Tenn. 154, 208 S.W.2d 1013 (1948); Nashville, Chattanooga and St. Louis Railway v. Railroad and Public Utilities Commission et al., 159 Tenn. 43, 15 S.W.2d 751 (1929). In either circumstance, the grant of power to the Commission is strictly construed. Pharr v. Nashville, Chattanooga and St. Louis Railway, supra. Had the legislature intended to invest the Commission with the authority to insure the safety and convenience of the public in crossing a railroad right-of-way, it would have been a simple matter for it to have done so explicitly. It did not, and therefore we must presume that it did not intend such a result. Our conclusion on this issue is supported by the fact that, to the extent that jurisdiction over rail-highway crossings has been expressly granted to a state agency, it has been given primarily and in the first instance to the State Department of Transportation. See, e.g., T.C.A. § 65-1107 et seq.; T.C.A. § 65-1208; T.C.A. § 59-846. '

Our action this day should not be taken to imply that Southern Railway has no duty to restore the bridge, or that it could not be compelled to do so in an appropriate proceeding. The common law and statutory duty of a railroad to maintain adequate crossings for public highways is well established. Southern Railway Company v. Maples, 201 Tenn. 85, 296 S.W.2d 870 (1956); Chesapeake, Ohio, & Southwestern Railroad Co. v. Dyer County, 87 Tenn. 712, 11 S.W. 943 (1889); T.C.A. § 65-1101. We merely hold that the Public Service Commission has no authority to compel the railroad to fulfill that duty.

The judgment of the chancellor is affirmed. The costs incident to this appeal will be taxed to the appellant.

FONES, BROCK and HARBISON, JJ., concur.

HENRY, J., not participating.


author: FONES, Justice.

text:
    JAMES E. STRATES SHOWS, INC., Petitioner, v. Jack Louis JAKOBIK, Respondent.
    Supreme Court of Tennessee.
    Aug. 15, 1977.

      Hugh C. Gracey, Jr., Gracey, Maddin, Cowan & Bird, Nashville, for petitioner.
    James C. Vance, Nashville, for respondent.
   OPINION

FONES, Justice.

Plaintiff sued defendants for personal injuries received in defendants’ “fun house” on the Midway at the State Fair. After an adverse jury verdict, plaintiff’s motion for a new trial was granted on November 10, 1975. The order expressed the dissatisfaction of the trial judge, as thirteenth juror, with the verdict of the jury.

On November 12,1975, defendants filed a one sentence motion, “. . .to ask this Court to reconsider its prior ruling . in granting plaintiff’s motion for a new trial.” Apparently, oral argument was heard on November 21, 1975, and the motion to reconsider taken under advisement, but no minute entry of that action was made.

On January 28, 1976, the trial judge granted the motion to reconsider, overruled plaintiff’s motion for a new trial and reinstated the jury verdict in favor of defendants.

The Court of Appeals reversed, holding (1) that the comments of the trial judge in the second order, reversing his decision to grant plaintiff a new trial, did not cure the dissatisfaction he had expressed as thirteenth juror in the previous order and (2) that the trial court lost jurisdiction to alter his November 10, 1975, decision to grant a new trial, after the lapse of thirty (30) days.

We agree with the Court of Appeals on the first issue, which requires that the case be remanded for a new trial. The second issue is therefore moot and we pretermit it.

The November 10, 1975, order granting a new trial provided, in part:

. . After due consideration of the entire record, the Court expressed that it was, as thirteenth juror, dissatisfied with the verdict of the jury and that a new trial should be granted to the plaintiff.”

The January 28,1976, order reversing the prior order and reinstating the jury verdict reads in part:

“. . After careful consideration of the entire record in this cause, the Court is of the opinion that its dissatisfaction with the jury’s verdict in favor of the defendants was actually a dissatisfaction with the proof as presented by the plaintiff. The Court is of the opinion that there was evidence to support the verdict of the jury in its finding for the defendants and the Court cannot say that the verdict was unreasonable in light of the evidence presented by both sides in this case. The Court therefore, grants the defendant’s motion to reconsider the Court’s prior ruling and accordingly, by such action, reinstates the verdict of the jury in favor of the defendant in the above-styled cause.”

Where the motion for a new trial asserts that the verdict was contrary to the weight of the evidence it is the duty of the trial judge to weigh the evidence and determine whether it preponderates against the verdict, and if so, to grant a new trial. Vaulx v. Tennessee Central Railroad Company, 120 Tenn. 316, 108 S.W. 1142 (1907).

In performing his duty as thirteenth juror, the trial judge is not bound to give any reasons for his action, anymore than the jury is bound to do so. But, in passing on a motion for a new trial, if it appears from reasons assigned or statements made, that the trial judge was not satisfied with the verdict, it is the duty of the appellate courts to grant a new trial. Telephone and Telegraph Company v. Smithwick, 112 Tenn. 463, 79 S.W. 803 (1903).

In Vaulx the trial judge’s remarks in disposing of the motion for a new trial revealed that he sustained the verdict of the jury because there was evidence to support it. In holding that it was improper for the trial judge to sustain the verdict because there was some evidence to support it and thereby fail to weigh the evidence, the Court said:

“[w]here the bill of exceptions shows that the circuit judge has not given the parties the benefit of his reflections at all — that is, has not weighed and considered the evidence — here is presented a case of breach of duty on the part of that officer for which there must always be granted a new trial.” (Emphasis supplied). 120 Tenn. at 322, 108 S.W. at 1144.

In Hamburger v. Illinois Central R. R. Co., 138 Tenn. 123, 196 S.W. 144 (1917), the remarks of the trial judge and the action he had taken on two (2) motions resulted in this Court concluding that it was impossible to say whether or not the jury verdict had his approval. The case was remanded for a new trial.

In Curran v. State, 157 Tenn. 7, 4 S.W.2d 957 (1928), the remarks of the trial judge in overruling defendant’s motion for a new trial led this Court to conclude that he had not weighed the evidence and determined, as thirteenth juror, where the preponderance lay. The opinion contains an excellent review of the earlier authorities.

Recently, the Court of Appeals, Eastern Division was presented with a case involving remarks by a trial judge stating his reasons for approving a jury verdict. The Court concluded from his remarks that he had disassociated himself from the deliberative process and instead had merely deferred to the verdict of the jury. In Sherlin v. Roberson, Administrator, 551 S.W.2d 700, filed October 15, 1976, certiorari denied March 14, 1977, an opinion designated for publication, Judge McAmis, writing for the Court said:

“To say, as the trial judge did in this case, that before the trial judge, acting as the thirteenth juror, should set aside a verdict it would have to be a verdict that he could not live with would be to adopt a standard relieving the judge of the duty to take an unbiased and dispassionate view of the evidence, weigh it and determine whether the evidence preponderates in favor of the plaintiff or defendant or is equally balanced.
If the trial judge abdicates this important duty justice could often miscarry. On appeal the evidence cannot be weighed as in the trial court. As has been said so often, a verdict in a civil case approved by the trial judge cannot be overturned if there is any credible material evidence to support it. In view of the finality of his determination of the weight of the evidence as the thirteenth juror, it will not do to weaken the rule by implying approval by. the trial judge from countervailing and irreconcilable remarks. To do so would be to strike at the very foundation of our judicial system as it pertains to jury trials.”

For other cases interpreting remarks of the trial judge as negating the performance of his duty to weigh the evidence and approve or disapprove the verdict see e. g. Mize v. Skeen, 63 Tenn.App. 37, 468 S.W.2d 733 (1971); State ex rel. Richardson v. Kenner et al., 172 Tenn. 34, 109 S.W.2d 95 (1937); Carter v. Pickwick Greyhound Lines, 166 Tenn. 200, 60 S.W.2d 421 (1933); and Railroad v. Neely, 102 Tenn. 700, 52 S.W. 167 (1899).

In this case, the order of November 10, 1975, unequivocably expressed dissatisfaction with the jury verdict in favor of defendants and was an implicit adjudication that the evidence preponderated against the verdict. Over two (2) months later, having reconsidered the same evidence, the trial judge said that, (1) his dissatisfaction was actually with the proof as presented by the plaintiff; (2) there was evidence to support the verdict; and (3) he could not say the verdict was unreasonable.

The Court of Appeals observed that the January 28, 1976, order, “contains a puzzling combination of expressions.” Nevertheless, it is clear to us that in stating his reasons the trial judge affirmatively predicated his ruling upon a finding that there was some evidence to support the verdict and that viewing all of the evidence the verdict was not unreasonable. The clear implication from his remarks is that he did not weigh the evidence and determine whether it preponderated in favor of the plaintiff or defendants or was equally balanced, but merely determined that there was some evidence to support the verdict.

Under the authorities above cited we are required to remand this case for a new trial.

The judgment of the Court of Appeals is affirmed and this case is remanded to the Circuit Court of Davidson County for a new trial. Costs of the appeal are adjudged against the defendant, James E. Strates Shows, Inc.

COOPER, C. J., HENRY and BROCK, JJ., and LEECH, Special Justice, concur.