author: TODD, Judge.

text:
    CITY OF WHITWELL and Hazel Henderson, Complainants-Appellees, v. Arley WHITE, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Oct. 25, 1974.
    Certiorari Denied by Supreme Court June 2, 1975.

      Geary P. Dillon, Jr., Whitwell, for complainants-appellees.
    Billy Joe White, Tazewell, for defendant-appellant.
   OPINION

TODD, Judge.

This suit was filed by the complainants, City of Whitwell and Hazel Henderson to prohibit defendant, Arley White, from obstructing a certain right of way claimed by defendant as his exclusive property. Defendant denied all allegations supporting the right of way and by cross action sought removal of city water lines from the disputed right of way.

After hearing on oral evidence, the Chancellor found:

a. That the City of Whitwell had failed to establish any right of way as a public road.
b. That any right of removal of water lines was barred by the statute of limitations.
c. “That the complainant has established that she and her predecessors in title have established a private easement or roadway of ingress and egress ... by prescription. . . ”

By the Chancellor’s decree a 15-foot right of way from Ike Pickett Lane to Teague Road was declared to be a private way for ingress and egress in favor of complainant’s real estate described in the decree; and defendant was enjoined from interfering with the use of said way.

Since the claims of the City of Whitwell were rejected and the City has not appealed, it is not deemed to be a party to this appeal which concerns only the claims of complainant, Hazel Henderson.

The defendant has appealed and assigned the following errors:

“1. The Chancellor erred in holding that Complainant Henderson had right-of-way pursuant to oral agreement between Defendant and Henderson’s predecessor in title.
“2. The Chancellor erred in holding that there was enough evidence to establish a prescriptive right when the record is totally void of any use under claim of right or use adverse to Defendant. The Court further erred when he sustained objections when Defendant counsel asked about adverse claims of right and holding it was not a necessary element.
“3. The Chancellor erred in signing Decree establishing a fifteen (15) foot right-of-way when evidence showed a much narrower lane and which would result in a further taking of Defendant’s property.
“4. The Chancellor erred in holding that right-of-way was way of necessity without empannelling jury of view to set out most convenient right-of-way to all parties by metes and bounds.”

In support of the first assignment of error, appellant cites Menefee v. Davidson County, 195 Tenn. 547, 260 S.W.2d 383 (1953), wherein Menefee resisted the effort of Davidson County to remove his quarry equipment from County property, but admitted that he was occupying county property permissively, rather than adversely. He conceded that he could not hold adversely to the county in its governmental capacity, but insisted that the county held the property in a proprietary rather than governmental capacity. In rejecting the defense of Menefee, the Supreme Court cited Connor v. Frierson, 98 Tenn. 183, 38 S.W. 1031 (1897) and Fite v. Gassaway, 27 Tenn. App. 692, 184 S.W.2d 564 (1944), in both which cases the litigants were private individuals as in the present appeal. The cited authorities support the proposition that an enforceable permanent easement may not be conferred orally, and that an easement by prescription may not be obtained where the use is permissive.

Therefore, the first assignment of error is well-grounded to the extent "that the action of the Chancellor cannot be sustained upon the theory of oral permission to the predecessor of complainant-appellee.

For the same reason, the second assignment of error is well-grounded to the extent that the action of the Chancellor cannot be affirmed based upon alleged adverse or hostile use which was, in fact, permissive.

Nevertheless, as suggested by the Chancellor, the actual use of the right-of-way by appellee and her predecessors, whether permissive or not, constitutes circumstantial evidence of a right of easement of an entirely different origin; i. e., the prior situation and title of the entire tract of land, especially that the lands of appellee and appellant were at one time under a common ownership and that appellee’s predecessor received title under circumstances creating a “way of necessity.”

The fourth assignment of error complains that the Chancellor decreed an “easement of necessity” without following the procedure set out in T.C.A. §§ 54-1901 to 54-1917. Section § 54-1901 provides as follows:

“54-1901. Way of ingress and egress— Procedure for securing — Payment of damages — Maintenance as private road. — When the lands of any person shall be surrounded or inclosed by the lands of any other person or persons who refuse to allow to such person a private road to pass to or from his said lands, it shall be the duty of the county court, on petition of any person whose land is so surrounded, to appoint a jury of view, who shall, on oath, view the premises, and lay off and mark a road through the land of such person or persons refusing, as aforesaid, in such manner as to do the least possible injury to such persons, and report the same to the next court, which court shall have power to grant an order to said petitioner to open such road, not exceeding fifteen (15) feet wide, and keep the same in repair; and, if any person shall thereafter shut up or obstruct said road, he shall be liable to all the penalties to which any person is liable, by law, for obstructing public roads. The damage adjudged by the jury shall, in all cases, be paid by the person applying for such order, together with the costs of summoning and impaneling said jury. Gates may be erected on said roads. [Acts 1868-1869, ch. 14, § 1; Shan., § 1634; Code 1932, § 2745.]”

Appellant cites Bowles v. Chapman, 180 Tenn. 321, 175 S.W.2d 313 (1943). However, in said opinion, the Supreme Court held:

“The proof showed that complainant, his neighbors, and predecessors in title had used a roadway north through defendants’ land for more than fifty years; that the land north of complainant was mostly in timber; that when holes would form in the road complainant would travel around these rough places. The proof further showed that a hard-surfaced road was on the south side of complainant’s land, and that the road used by complainant over defendants’ land was one of convenience in going to said pike road to the north and in going to church.
“(1-3) The complainant insists that the road was one of necessity. However, the complainant cannot successfully claim a way of necessity, because it is not shown that his land and the land of the defendants were at one time owned by a common grantor, or that the immediate grantor of the dominant tract was at the time of the litigation the owner of the servient estate.”
180 Tenn. p. 323, 175 S.W.2d p. 313 (Emphasis Supplied)

Contrary to the facts of Bowles v. Chapman, supra, the evidence in the present case is abundantly clear that the land of appellant and that of appellee were formerly a part of a single tract and that the tract now owned by appellee was separated from that of appellant under circumstances which created a way of necessity. The evidence in this regard is found principally in the testimony of appellant, himself.

According to maps in the record, the appellant, Arley White, owns a tract which fronts 482 feet on the northerly side of Teague Road and runs back an unnamed distance to the property of appellee which adjoins it on the north (rear), and does not front on any public road. The property of a Mr. Pickett lies between the property of appellee and the next road, which is Sweet-water Road. A private road, called Pickett Road, has been used by permission of Mr. Pickett to reach appellee’s house from Sweetwater Road, but no right of use of said road is shown.

The testimony of appellant, referred to above, is as follows:

“Q. All right, would you point out to the Court the general boundaries of your property, what it is bounded by and general boundaries of it.
A. It’s bound on the south by the Teague Road, on the east by Williams, on the north, this section by Henderson.
Q. Of course, you have marked on that Tom White, that’s the party that owned it prior to Mrs. Henderson.
A. That’s the part that sold to Henderson,
Q. All right, and after you purchased it you sold to Tom White, a part as illustrated here.
A. Yes, I sold him four (4) acres more or less and beginning over here coming down to the John White land with the John White Lane a hundred and twenty-five (125) feet from stake in the east bank of the lane back to Williams and Williams back to the beginning point.
Q. What did you sell to Tom White in relation to the lane?
A. I just sold to, the Tom White property to what is known as the John White Lane with the John White Lane to an iron stake at the bank, which is the east bank if the stake is still there.
Q. All right, did you and Mr. Tom White have any type of agreement concerning this lane?
“A. That I would not sell him or give him any written rights to the lane, because it would give me trouble up by my house, but he had always used my land any way he wanted to, went across it any time he wanted to, and if he wanted to come up that lane it was alright, up or down it. And I’d let him use it by permission, but I wouldn’t make him a deed, I wouldn’t sell it to him or give it to him on account it would give me trouble maybe sometime later.” (Emphasis Supplied)

Thus, it is apparent that appellant owned the combined properties now held by himself and appellee; that appellant sold to one Tom White the property now held by appel-lee which was the rear portion of the tract not fronting on any public road; and that appellee is the successor in title of said Tom White.

Under these circumstances, a way of necessity was created when appellant sold a land-locked section of his property to Tom White, predecessor in title of appellee.

In Pearne v. Creek Mining & Mfg. Co., 90 Tenn. 619, 18 S.W. 402 (1891), it was held that a deed by a private person of land surrounded by other land of the grantor and strangers passes to the grantee a right of way over the surface of the grantor’s adjoining land.

In McMillan v. McKee, 129 Tenn. 39, 164 S.W. 1197 (1914), it was held that where a way of necessity has not been selected, the owner of the servient estate has a prior right to select the way, provided it be reasonable; but the route is to be determined by the reasonable convenience of both parties, and not by the sole interest of either. According to said authority, the route should be such as the grantor would reasonably select.

In 28 C.J.S. Easements § 35-54 on the pages indicated, are found the following pertinent statements:

. . wherever one conveys property he also conveys whatever is necessary for its beneficial use and enjoyment, and retains whatever is necessary for the use of the land retained. The implication of an easement by necessity is based upon the inferred intent of the parties, which is to be determined from the terms of the instrument and the circumstances surrounding the transaction; p. 696
“The rules as to the acquisition of a private road by the exercise of the power of eminent domain, or as to the acquisition of a way by prescription, or as to the implication of an easement from the use made of the premises by the common grantor, have no application to the implication of ways of necessity. The rule requiring that an easement be apparent and continuous as a requisite to a grant or reservation thereof by implication does not apply to a way of necessity.” p. 697
“When there is a conveyance of a tract of land and there is no means of access thereto or egress therefrom except over the remaining land of the grantor, a way of necessity over such land is ordinarily granted by implication of law. . . . ” p. 699
“On a conveyance which leaves the land conveyed or retained surrounded by the land of the grantor or grantee and third persons, a way of necessity is implied in favor of the landlocked parcel.” p. 700
“Where the owner of a tract of land lays it out in streets and lots delineated on a map or plan and sells lots bounded by such streets, the legal effect of the grants is to convey to the grantees easements of way with respect to the streets as laid out. . . . ” p. 701
“. . . a right to a way so created cannot be defeated by showing that the owners have another convenient and accessible way of going to and from their premises.” 28 C.J.S., p. 719

In 25 Am.Jur.2d, Easements and Licenses, § 34, pp. 447, 448, is found the following:

“A way of necessity is an easement founded on an implied grant or implied reservation. It arises where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is shut off from access to a road to the outer world by the land from which it is severed or by this land and the land of stranger. In such a situation there is an implied grant of a way across the grant- or’s remaining land to the part conveyed, or conversely, an implied reservation of a way to the grantor’s remaining land across the portion of the land conveyed. The order in which two parcels of land are conveyed makes no difference in determining whether there is a right of way by necessity appurtenant to either.
“A way of necessity results from the application of the presumption that whenever a party conveys property he conveys whatever is necessary for the beneficial use of that property and retains whatever is necessary for the beneficial use of land he still possesses. Such a way is of common-law origin, and is presumed to have been intended by the parties. A way of necessity is also said to be supported by the rule of public policy that lands should not be rendered unfit for occupancy or successful cultivation.” 25 Am.Jur.2d, pp. 447, 448

Thus it appears conclusively, as a matter of law, that, when appellant, Arley White, sold to his uncle, Tom White, a landlocked portion of his (Arley White’s) land, there was implied and created a right of ingress and egress over the land of Arley White. Unknowingly, the parties to that transaction honored this rule by the oral easement. They were not aware that the rights created by the sale and confirmed by their oral agreement would pass to the successors in title of Tom White; but appellee, as Tom White’s successor, retains the right acquired by him when he purchased the land.

Arley White honestly thought, and now contends that the right of passage orally granted to his uncle might be denied to others and withdrawn by him at will. Such is not the case. The right attached to the land conveyed to Tom White and inures to his successors.

Appellant relies upon the fact that there is another, more convenient outlet available to appellee. The “John White Lane,” mentioned in the deed from Arley White to Tom White extended along the westerly margin of the Arley White land from Teag-ue Road to the rear boundary of the Arley White land. It did not extend to the next public road, Sweetwater Road; however, another private road, “Pickett Road,” extended from Sweetwater Road to the vicinity of the end of the John White Lane. Indeed, there is evidence that at one time the two private roads were joined, graded, gravelled, and used as a detour route from Teague Road to Sweetwater Road. This arrangement was temporary and discontinued many years ago.

When appellant first closed the John White Lane by felling trees near Teague Road, appellee was able to travel on John White Lane to Pickett Road and thence to the public way. Subsequently, appellant obstructed the remainder of John White Lane so that appellee could not travel over it to Pickett Road, at which time Mr. Pickett permitted appellee to cross his property otherwise to Sweetwater Road. These accommodations by Mr. Pickett in allowing the use of his private road, or other ways across his property, being temporary and not arising to the dignity of an enforceable right, cannot defeat the rights of appellee derived from her predecessor, Tom White.

This controversy actually arose under circumstances which explain the position taken by appellant. When appellee, Mrs. Henderson, purchased the Tom White land, the original Tom White residence was located thereon and she occupied it until she decided to build a new house. She requested that appellant permit her to improve the John White Lane from Teague Road to her home, and there was discussion of terms which were not agreed upon. Mr. Arley White felt he was justified in preventing the passage of heavy material trucks and other vehicles incident to the construction of a new house, and he did so.

This aspect of the situation suggests an interesting question of law which need not be answered here, namely, the extent of an implied way of necessity where the grantee subdivides the land or otherwise increases the number of beneficiaries of the way. The present record reflects that the new house was to be a substitute for the old house, and that Mrs. Henderson would occupy and use it in lieu of the old house. Thus her right to the continued use of the way of necessity cannot be questioned on this ground.

The remaining assignment for consideration is the third, which complains of the width of the easement decreed by the Chancellor. It is insisted that there is no evidence to sustain the grant of a 15-foot easement. This measurement doubtless is derived from the statute, quoted supra, which is not directly pertinent.

Appellant points out that the testimony of width ranges from “quite narrow” to “10 or 12 feet.” Evidence as to the width of the way actually used is not controlling as to the width which the appellee and her predecessors had a right to use under the principles of law above quoted. The extent of a way of necessity is limited only by the reasonable needs in contemplation of the parties at the time of the deed from which the way resulted. The rights of appellee do not limit the full use of the affected land, except that appellee’s way may not be obstructed. In this view of the matter, it cannot be said that the 15-foot width is unreasonable.

One other aspect of the case requires brief recognition. Although not discussed in briefs, there is room for the argument that the allegations of the complaint are not broad enough to include the grounds of the relief granted; i. e., a way of necessity.

If the facts had not been so fully developed at the trial, and if such facts did not so conclusively appear from the testimony of appellant, himself, this Court might be inclined to a result which would require the parties to re-plead and re-litigate their dispute. Since, under the incontrovertible facts, the rights of the parties are clearly delineated by the law, it is deemed more just and equitable to establish such rights in the present appeal than to invoke a technicality which would not change the ultimate result but which would impose unnecessary and unjust expense and litigation upon the parties.

The right to a way of necessity implies the right to maintain a passable way. It also implies the use of such way in such manner as to avoid unnecessary inconvenience to the owner of the subservient estate. For these and kindred reasons, the cause will be remanded to the Chancellor for enforcement and, if necessary, specific definition of the rights and obligations of the parties.

The decree of the Chancellor is affirmed. The costs of this appeal are taxed against appellant and his sureties. The cause is remanded for enforcement of the decree and for any necessary and appropriate proceedings.

Affirmed and remanded.

SHRIVER and DROWOTA, JJ., concur.


source: Caselaw Access Project

author: DROWOTA, Judge.

license: Public Domain

text:
    Lloyd J. KAISER, Plaintiff-Appellant, v. Reid Edwin CANNON, Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section.
    June 27, 1975.
    Certiorari Denied by Supreme Court Nov. 11, 1975.

      Wilkes Coffey, Jr., Murfreesboro and Daniel B. Boone, Louisville, Ky., for plaintiff-appellant.
    Schulman, McCarley, Hollins & Pride, Nashville, for defendant-appellee.
   OPINION

DROWOTA, Judge.

This case presents the issue whether addi-tur as applied to a non-consenting plaintiff violates the right to trial by jury guaranteed by Article 1, § 6 of the Tennessee Constitution.

Appellant filed suit in the Circuit Court for Rutherford County, Tennessee against Reid Edwin Cannon, seeking damages for injuries allegedly resulting from an accident involving automobiles driven by Cannon and by Stanley H. Kimmell. On the morning of May 11, 1970, appellant Kaiser was a passenger in an automobile being driven south on U. S. Highway 41 South by Stanley H. Kimmell. The automobile was leased from Perkins Leasing Company. Appellee Cannon was driving his automobile north on the same highway. At a point approximately seven miles south of the City of Murfreesboro, Cannon pulled into the southbound lane to pass an automobile pulling a trailer in front of him. When Cannon had pulled thirty or forty feet into the southbound lane, to a point even with the rear wheels of the trailer in the northbound lane, he observed the vehicle driven by Kimmell approaching in the southbound lane about 300 feet ahead. Unable to return to the northbound lane, Cannon applied his brakes and skidded toward the west side of the highway.

In an effort to avoid striking the Cannon automobile, Kimmell pulled his vehicle onto the shoulder of the road. The vehicle went into the ditch near the shoulder and proceeded 150 feet past the Cannon automobile, striking a tree in the front yard of a residence on the west side of the highway. Both Kimmell and Kaiser were injured.

Separate actions were filed against Cannon by Kaiser, Kimmell and Perkins Leasing Company. The cases were consolidated and tried before a jury. Kaiser offered evidence that as a result of the incident he had incurred special damages in the amount of $4,051.98 and a loss of earnings in the amount of $32,300.00. It was stipulated that Perkins Leasing Company had been injured in the sum of $100.00. Kimmell testified that he had been injured “very slightly”, and offered proof of $106.29 in special damages and lost earnings from missing three days of work.

The jury returned a verdict for Kaiser in the amount of $2,500.00 and for Perkins Leasing Company in the amount of $100.00 but found against Kimmell.

Kaiser and Kimmell each moved for a new trial. The grounds for Kimmell’s motion are not revealed in the record. Kaiser contended a new trial was appropriate in his cause for three reasons: that the verdict was contrary to the weight and preponderance of the evidence; that the verdict clearly demonstrated the jury did not follow the court’s instructions with reference to the loss of earning capacity and that the verdict was contrary to the weight and preponderance of the evidence with reference to special damages, loss of earning capacity, and temporary disability; and that the verdict was so small as to indicate passion, prejudice, or unaccountable caprice.

The Trial Judge granted Kimmell’s motion for a new trial. By Order of April 29, 1974 the court found that Kaiser’s motion for a new trial was well taken “insofar as it attacks the inadequacy of the verdict.” Pursuant to T.C.A. § 20-1330 the court suggested an additur of $6,500.00 and ordered a new trial unless the defendant accepted the increase. The Order provided that “if said suggestion be accepted the plaintiff[’]s [mjotion for a new trial will be overruled in all respects and judgment will be rendered against the Defendant, Reid Edwin Cannon, for the total amount of $9,000.00 and the cost of this cause.”

The Order further reflects that the defendant “did accept said additur in Open Court,” that the court granted judgment against defendant for $9,000.00 plus costs, and that “the motion of the Plaintiff for a new trial in this cause is in all respects overruled.” Plaintiff’s prayer for an appeal was granted in the same Order.

On April 29,1974 appellant filed a motion to set aside the order and to grant a new trial on three grounds: that the court did not consider the effect of the “tainted” verdict rendered in the Kimmell case on the verdict in this cause; that the court did not consider the effect of the “inconsistent” verdicts rendered in the Kaiser and Perkins Leasing Company cases on the verdict in this cause; and that the court’s action in suggesting an additur in the amount of $6,500.00 was error because a “tainted” verdict cannot be corrected by additur. By Order of April 30, the Trial Court overruled the motion.

I.

Appellant contends that the trial court’s substitution of an additur in an amount unsatisfactory to plaintiff for the granting of a new trial, where the trial judge as the thirteenth juror finds that the jury verdict is inadequate, constitutes a denial of the right to trial by jury guaranteed by Article 1, § 6 of the Constitution of the State of Tennessee.

In McCall v. Waer, 487 S.W.2d 308 (Tenn.1972), the Supreme Court expressly left open that issue. In McCall a defendant challenged the constitutionality of the addi-tur statute, T.C.A. § 20-1330. The Court found that since the additur is conditioned on the defendant’s acceptance he may refuse the additur with the result that a new trial will be ordered in which a jury will be available. Consequently, the Court held the statute constitutional as applied to defendants. It noted, however, that “should a plaintiff disagree with the amount of the additur, and demand a new trial ... a serious question would be presented.” 487 S.W.2d at 310-11.

Before turning to the Tennessee Constitution, an examination of the additur practice in other jurisdictions is in order. In many of the early cases in which additur was considered it was held unconstitutional, at least in instances in which the plaintiff did not consent. See, e. g., Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935); Shanahan v. Boston & N. St. Ry. Co., 193 Mass. 412, 79 N.E. 751 (1907); Lori v. City of Detroit, 145 Mich. 265, 108 N.W. 661 (1906); Mohr v. Williams Case, 95 Minn. 261, 104 N.W. 12 (1905); Bradwell v. Pittsburg, etc. R. Co., 139 Pa. 404, 20 A. 1046 (1891), relied upon in Raymond L. J. Riling, Inc. v. Schuck, 346 Pa. 169, 29 A.2d 693 (1943). A number of more recent cases are in accord. See, e. g., Dorsey v. Barba, 38 Cal.2d 350, 240 P.2d 604 (1952); Sarvis v. Folsom, 114 So.2d 490 (Fla.App.1959); In re Ohio Turnpike Comm'n 101 Ohio App. 474, 140 N.E.2d 328 (1955). The courts reasoned that additur was unknown at common law, and substituted a judicial decision on damages for that of a jury.

A number of jurisdictions have permitted additur only where damages are liquidated. See, e. g., Yep Hong v. Williams, 6 Ill.2d 456, 128 N.E.2d 655 (1955); Rudnick v. Jacobs, 39 Del. 169, 197 A. 381 (1938); Kraas v. American Bakeries Co., 231 Ala. 278, 164 So. 565 (1935); Fall v. Tucker, 113 Kan. 713, 216 P. 283 (1923); E. Tris Napier Co. v. Gloss, 150 Ga. 561, 104 S.E. 230 (1920). In such cases there can be no argument that the province of the jury is invaded because no jury could properly have awarded more to the plaintiff than is provided for by the additur. Similarly, in cases of unliquidated damages, some courts have allowed the substitution of an additur for a new trial only where the trial judge suggests a recovery in the highest amount allowable as a matter of law. See O’Connor v. Papertsian, 309 N.Y. 465, 131 N.E.2d 883 (1956). Other courts have required that the suggested award of damages be set at the lowest amount that an unprejudiced jury could find for the plaintiff, who is given the option of either accepting it or a new trial. See, e. g., Risch v. Lawhead, 211 Wis. 270, 248 N.W. 127 (1933). Still others have given plaintiff the option of stipulating to the lowest estimate of damages made by defendant’s witnesses or accepting a new trial. See Bingaman v. City of Seattle, 139 Wash. 68, 245 P. 411 (1926).

Beginning in the late 1950’s an apparent trend developed in the state courts in favor of the constitutionality of the additur practice as applied to plaintiffs in cases of unliq-uidated damages. See Jehl v. So. Pac. Co., 66 Cal.2d 821, 59 Cal.Rptr. 276, 427 P.2d 988 (1967), overruling Dorsey v. Barba, supra; Bodon v. Suhrmann, 8 Utah 2d 42, 327 P.2d 826 (1958) (dictum); Caudle v. Swanson, 248 N.C. 249, 103 S.E.2d 357 (1958); Fisch v. Manger, 24 N.J. 66, 130 A.2d 815 (1957); Genzel v. Halvorson, 248 Minn. 527, 80 N.W.2d 854 (1957), overruling Mohr v. Williams Case, supra. The courts reasoned that the plaintiff could not be prejudiced since he was receiving more than the jury had given him, and emphasized the practical advantages of additur.

In Tennessee, the Article 1, § 6 guarantee “that the right to trial by jury shall remain inviolate” was incorporated into the Constitution of 1870 from the Constitution of 1796. It protects the right of trial by jury as it existed at common law. Woods v. State, 130 Tenn. 100, 169 S.W. 558 (1914); State v. Sexton, 121 Tenn. 35, 114 S.W. 494 (1908); Marler v. Wear, 117 Tenn. 244, 96 S.W. 447 (1906).

Whether additur violates the constitutional guarantee cannot be determined without inquiry into the historic powers of the jury. At common law at the time the right to trial was written into the first Tennessee Constitution a jury verdict in personal tort cases could not be disturbed, and a new trial granted, merely because the judge found the damages as assessed to be either excessive or inadequate. Sedgwick on Damages, § 349 at 688-89 (9th ed. 1912).

In 1864 the English Court of Common Pleas unanimously rejected the proposition that a jury verdict could be overturned merely because of excessive damages. The Court could find only one earlier case in which a new trial had been granted solely on that ground. In reviewing that decision the Court observed,

The principle on which [the new trial] was granted . . . was to give the defendant a chance of another jury: this is a very bad reason; for if it was not, it would be a reason for a third and fourth trial, and would be digging up the constitution by the roots; and therefore we are free to say this case is not law; and that there is not one single case (that is law) in all the books to be found, where the Court has granted a new trial for excessive damages in acts for torts.

Beardmore v. Carrington, 2 Wils.K.B. 244, 249, 95 Eng.Rep. 790, 793. The Court noted that an exception existed where the damages are “monstrous and enormous indeed, and such as all mankind must be ready to exclaim against, at first blush.” Id.

Early American cases took a dim view of the granting of new trials because of dissatisfaction with the amount of the damages, regarding the practice as an invasion of the province of the jury. See, e. g., George v. Law, 1 Cal. 363 (1851); Payne v. Pacific Mail S. S. Co., 1 Cal. 33 (1850). The earliest Tennessee cases on the subject were in accord with the common law view. In Boyers v. Pratt, 1 Humph. (20 Tenn.) 90, 93 (1839), it was said that a new trial should never be granted in a civil action for a personal tort on the ground of excessive damages unless the damages were so flagrantly outrageous as to evince passion, partiality or corruption. In Goodall v. Thurman, 1 Head (38 Tenn.) 209, 217-18 (1858), the Court observed:

After all, we do not feel authorized to grant a new trial in this case upon the single ground of excessive damages, although we consider the amount entirely disproportionate to the case made out in the proof. The law on this subject is correctly laid down in 2 Greenl. sec. 255: “In trials at common law, the jury are the proper judges of damages; and where there is no certain measure of damages, the court, ordinarily, will not disturb their verdict, unless on grounds of prejudice, passion, or corruption in the jury.” To this rule we have conformed our practice, and it is the only safe one on the subject.

In Tennessee Coal and Railroad Co. v. Roddy, 1 Pickle (85 Tenn.) 400, 404-410, 5 S.W. 286 (1887), the Court reviewed the Boyers and Goodall cases as well as various standard texts and reaffirmed Tennessee’s “harmony” with the common law rule, holding that in actions for damages for personal torts a trial judge could not set aside a jury verdict merely on the grounds of excessive damages, but that a new trial was appropriate where the damages evinced passion, prejudice, partiality, caprice, or corruption.

See also Turner v. Turner, 1 Pickle (85 Tenn.) 387, 390, 3 S.W. 121 (1887). The same year, in Chesapeake, O. & S. W. R. Co. v. Higgins, 1 Pickle (85 Tenn.) 620, 4 S.W. 47 (1887), the Court ruled that “it was error in the Circuit Judge to set aside the verdict of a jury and grant a new trial, in an action for damages for a personal tort, on the ground that the amount awarded was insufficient and inadequate, there being no evidence to show passion, prejudice, or partiality on the part of the jury.” In Jenkins v. Hankins, 98 Tenn. 545, 549-50, 41 S.W. 1028, 1029 (1896), the Court again considered the issue of “inadequate” damages in such eases:

We therefore proceed to the determination of the question as to correctness of the action of the Circuit Judge in setting aside the verdict of the jury, which was done manifestly because the Circuit Judge thought the amount given was too small. There can be no doubt that the Circuit Judge has the same power to set aside the verdict of the jury when the verdict is so inadequate as to indicate passion, prejudice, corruption, or unaccountable caprice, as he has to set aside similar verdicts so excessive as to indicate the same condition of mind on the part of the jury. McCampbell v. Thornburgh, 3 Head, 109; Tennessee Coal, Iron & Railroad Co. v. Roddy, 1 Pickle, 400, 5 S.W. 286.
It is not within the exercise of the legitimate power of the Circuit Judge to set aside verdicts as trifling or excessive, unless they appear to be the result of passion, prejudice, corruption, or capricious action on the part of the jury. It will be observed that this particular verdict was set aside by the Circuit Judge because, in his opinion, it was “against the evidence,” and it is insisted that in such case he has exhibited dissatisfaction with the verdict, and his dissatisfaction cannot be questioned if there were evidence pro and con considered by the jury, and by him in his action setting it aside. But the dissatisfaction of a Circuit Judge, which, appearing here, will invalidate a verdict, must be as to the finding upon an issue. If there was evidence pro and con, and an issue which was found in favor of one of the parties, and set aside at the instance of the other, the rule is applicable, but it has no application to the question of the amount. Tennessee Coal, Iron & Railroad Co. v. Roddy, 1 Pickle, 400, 5 S.W. 286; Turner v. Turner, 1 Pickle, 387, 3 S.W. 121.

In accord is Burckell v. Memphis Street Ry. Co., 2 Tenn.Civ.App. 576, 583-84 (1912) (trial courts have the same power to set aside verdicts upon the ground of inadequacy as in cases of excessiveness).

Interestingly, there grew up a second line of cases, seemingly contrary to the first, permitting the granting of a new trial for excessive damages or the use of a remitti-tur as a substitute. The Goodall case, supra, argued in the December term at Nashville in 1858, was decided in an opinion written by Justice Caruthers. In the April term at Jackson in 1858 the Court had heard argument in the case of Branch v. Bass. In an opinion written by Justice McKinney, reported at 5 Sneed (37 Tenn.) 366, the Court held that a trial court has the discretion to set aside the verdict in an action for tort, where the court thinks the awarded damages to be excessive. Furthermore, it was held that the court as an alternative might suggest to the plaintiff that he release the damages in an amount which the court deems to be reasonable and just and, upon such release being made, may render a judgment for the balance. The Court cited no cases supporting its position, asserting that the proposition that a court may set aside a verdict in an action of pure tort on the ground that the judge believed the damages to be excessive “cannot be questioned.” Branch was followed in several subsequent cases, including Young v. Cowden, 98 Tenn. 577, 588, 40 S.W. 1088 (1897).

Thus existed two conflicting and independent lines of authority, neither taking note of the other.

As late as 1912 and 1913 the Court of Civil Appeals was following the former line of cases. In Burckell v. Memphis Street Ry. Co., 2 Tenn.Civ.App. 576, 583-84 (1912), Justice Higgins, for the Court, wrote:

. Circuit Judges are not authorized to set aside verdicts simply because they are dissatisfied with the amounts, when there is nothing to indicate passion, prejudice or caprice upon the part of the jurors. According to the view of the writer, this must always be, so long as we have jury trials as at common law, and so long as the respective functions of court and jury are preserved. In the absence of a measure of damages of reasonable certainty, it is the province of the jury to make the award. . . . While this salutary view has not always been observed, the fundamental principle is still alive, and it should be kept in mind by the trial Court and the reviewing Court.

In Grant v. L. & N. R.R. Co., Court of Civil Appeals, Maury County (1913) (unpublished), Justice Wilson passionately dissented from the use of a remittitur as a substitute for a new trial on the ground of excessive damages because he found no evidence of passion, prejudice, or caprice and, relying upon the common law rule as enunciated in Boyers, Goodall, and Roddy, found that the jury verdict could not be disturbed. The other appellate judges upheld the trial judge’s use of the remittitur because they found that the verdict evinced passion or prejudice. Id. at 14. Justice Wilson wrote:

It is gravely argued that, although the principle and rules announced in the Rod-dy case have never been overruled or modified by any decision of our Supreme Court, and in print published authoritatively, nevertheless, in practice it has been frequently disregarded. For myself, I want to say that until the Supreme Court sees proper to modify the rules thus announced and frequently announced in written opinions, I propose to follow them in this class of cases. ⅜ * The vital and fundamental question is: “Do judges in personal tort cases involving physical injuries and consequent mental and physical suffering, have the right and power to substitute their judgment for that of juries as to the amount of damages that should be awarded, unless the amount of their verdicts are so large as to show that they are the product of prejudice, partiality, caprice or corruption and are such as all reasonable men would pronounce unreasonable?”
If such is to become the rule of action in this class of cases in this state I trust as before stated that our able and learned Supreme Court will in a written and published opinion so announce, and then I will cheerfully follow its guidance, and that it will also announce, if such be the law, whether or not we can interpose our judgment in such cases for that of the trial judge or that of the jury or both. As before stated, I have no objection to the announcement of such a rule if it can be made under our constitution and laws fixing and governing the right of trial by jury. This is all I desire to say on the subject of the abatement of the verdict of the jury in the case as it stood in the Court below against defendant Thompson, except to say that if a trial judge is the thirteenth jury [sic] to pass upon the awardable damages in this class of cases overruling the constitutional twelve jurors selected by the litigants, let the Supreme Court say so, and if we are over the trial judges in the matter, let the Supreme Court say so. I have no objection. But until it does say so I prefer to stand by the rule announced by the fathers, as stated by Judge Lurton in the Roddy case.

On appeal, the Supreme Court acknowledged Justice Wilson’s position. Citing Branch and subsequent cases relying upon it, the Court stated that “[t]he power to suggest remittiturs was long ago established in Tennessee, in cases of tort involving unliquidated damages, as well as in other cases. There is no intimation in our earlier decisions that this power can be exercised only when passion, prejudice, or caprice appears in the verdict of the jury . . .” Grant v. L. & N. R.R. Co., 129 Tenn. 398, 407, 165 S.W. 963, 965 (1914). Roddy was distinguished on the ground that it did “not consider the question of remitti-tur at all, but deals with the duty of the court as to setting aside verdicts in toto.” 129 Tenn. at 409, 165 S.W. at 965. The Court did not explain how in personal tort cases a remission of part of the plaintiff’s jury award could be required as a condition for not granting defendant a new trial on the ground of excessive damages if Roddy held that a jury verdict could not be set aside and a new trial granted in such cases solely on that ground.

Whatever the basis of the trial judge’s power to disturb a verdict merely because of his dissatisfaction with the amount of damages in a case involving personal torts, the authority is recognized in many jurisdictions in this country, see 58 Am.Jur.2d “New Trial” § 148 et seq., and rests in this state on more than a century of precedent and practice. It is too late to revoke that authority, if we desired to do so, and we are bound by the rulings of the Supreme Court. It is clear, however, that a motion for a second trial based on inadequate damages is an appeal to the conscience of the trial court and is granted if at all “in spite of, rather than because of, the constitutional right of trial by jury.” Dorsey v. Barba, 240 P.2d 604, 612 (1952) (Traynor, J., dissenting). A new trial not being mandated by Article 1, § 6 there can be no constitutional objection to its denial being made conditional on the defendant’s agreement to the award of such additional sum as in the opinion of the trial judge is just and reasonable. Having had his day before a jury, plaintiff has had what the Constitution gives him, and more.

II.

We turn to the question whether additur can be used to avoid a new trial in cases in which prejudice, passion, or caprice by the jury has affected the award of damages. In Western Union Tel. Co. v. Frith, 105 Tenn. 167, 58 S.W. 118 (1900), the Supreme Court held that a verdict so excessive as to indicate such a state of mind by the jury could be cured by a remittitur rather than a new trial. In Alabama Great Southern R. Co. v. Roberts, 113 Tenn. 488, 82 S.W. 314 (1904), the Supreme Court abandoned its “usual practice” of remedying such verdicts by awarding a new trial, and held that, like the trial court, it could suggest a remittitur. In Grant v. Railroad, supra, the Court noted the observation by a text writer that Frith was against the weight of authority from other jurisdictions and carried the doctrine of curing verdicts improperly influenced to a further extent than other courts had gone, but found the practice to be firmly established in the State. See also Reeves v. Catignani, 157 Tenn. 173, 175, 7 S.W.2d 38 (1928). The reason the Court concluded that passion, prejudice, or caprice in the award of damages should be curable by a remittitur was explained in the Roberts case. In response to the argument put forward by some courts that the prejudice might also have affected the entire verdict, so as to have influenced or caused the finding of liability where none existed, the Supreme Court answered that if such be the ease the verdict can be set side on the ground there is no evidence to support it. 113 Tenn. at 498, 82 S.W. 314.

Regardless whether such reasoning is a sound rejoinder to the argument that remit-titur should not be allowed because the prejudice may have tainted the finding of liability, it is no answer, of course, to any constitutional objection to the practice. The constitutional argument was not before the Supreme Court and was not considered by it. Indeed, in none of the cases holding that verdicts so excessive as to demonstrate prejudice, passion, or caprice can be rehabilitated by remittitur has the Supreme Court squarely considered the constitutional question. Thus Frith, Roberts and Grant are no barrier to an unfettered consideration by this Court of the Article 1, § 6 issue involved in the analogous practice of additur.

After careful consideration of the question, we conclude that in cases in which a jury award is so low as to evince prejudice, passion, or caprice a denial of a new trial by the Circuit Judge on the ground that defendant has accepted a suggested additur violates plaintiff’s right to trial by jury, in the absence of plaintiff’s consent to the amount of the additur. Cf. Blessing v. Angell, 66 Mont. 482, 214 P. 71 (1923); Rhyne v. Turley, 37 Okla. 159, 131 P. 695 (1913); Thomas v. Womack, 13 Tex. 580 (1855). The right to trial by jury is the right to a fair trial by jury. Two values underlie that ancient right: that a party is entitled to an impartial fact-finding and that justice is more likely to be done when the verdict results from the collective conscience of his peers than when it is rendered by one person, whose judgment is unchecked and unaided. Imposition of an ad-ditur over plaintiff’s objection merely substitutes an impartial, solitary decision by the judge for the biased, collective decision of the jury. Thus plaintiff is denied the impartial judgment of a cross-section of the community that he had originally demanded and to which he was constitutionally entitled.

In summary, if the verdict of the jury is the result of misconduct, such as passion, prejudice or caprice, then the aggrieved party has not had a jury trial as contemplated by the constitutional guaranty and such denial of a jury trial may not be constitutionally corrected by an additur or remittitur not accepted by both parties. If, however, there is no jury misconduct, such as passion, prejudice or caprice, then the aggrieved party has had a jury trial and his only remedy is to appeal to the trial judge, acting as a thirteenth juror, to grant a new trial or to suggest adjustment of the amount of the verdict. In such latter case, the aggrieved party is not deprived of a jury trial by an adjustment favoring him, because he has had a fair jury trial the results of which might properly have been approved by the trial judge if he had seen fit to do so.

III.

After reviewing the evidence, we are unable to conclude that the jury was actuated by prejudice, passion or caprice. To set aside a jury verdict on such ground requires either direct proof thereof or circumstances permitting the inference that such improper influences were at work. If the conclusion is to rest solely on an inference drawn from the size of the award, the award must be outside the range of verdicts which a reasonable and impartial jury could have returned before it can properly be regarded as evidence of prejudice, passion, or caprice. In this case there is no direct evidence of any partiality, emotional influence, or irrational conduct on the part of the jury. Furthermore the amount of the award is not so unreasonable as to evince an improper state of mind on their part.

Dr. Badenhausen testified that as a result of the accident on May 11, 1970, plaintiff suffered a chipped fracture of the second lumbar vertebra and a back sprain, but that these back conditions were healed by the end of August, 1970, and should result in no further disability. The medical testimony was in agreement that Kaiser also suffered from Legg-Perthes disease of the left hip predating the accident. Although plaintiff testified he had never been troubled by his hip before the accident and Dr. Leatherman testified the accident aggravated the condition, Dr. Badenhausen testified the hip abnormality would have created medical problems for Kaiser even had he had no accident and that the injury caused no additional damage to his chronic hip problem. Mr. Kaiser never explained why he had x-rays taken in 1968 showing his abnormal hip condition if it had never troubled him. If the jury gave Dr. Badenhausen’s testimony credence, it could have concluded that many of plaintiff's complaints at the time of the trial resulted from the hip condition and not from the accident and that several items of special damages were not sufficiently related to defendant’s conduct to hold him accountable therefor. The following examples will suffice to show that a jury not actuated by prejudice, passion, or caprice could have substantially reduced plaintiff’s claim for special damages.

1. Yard Work ($1,065.00). The expenses were not documented and were supported solely by plaintiff’s testimony. The yard work was from the date of the accident in May of 1970 to the time of trial in December of 1973. Plaintiffs inability to do his own yard work could have been attributed, at least after August of 1970, to the hip condition rather than the accident. In addition, the jury could have attributed the expenses partly to a philanthropic intent, since plaintiff testified that “the church I belong to supports a place called Brookha-ven, which takes in young boys. And this was an opportunity for me to get some help for my yard and to help these young fellows, and to this day I still employ them.”

2. Replacement of golf clubs and cart ($525.78). The trunk of the automobile in which Kaiser was a passenger contained his golf equipment. Plaintiff testified that he hadn’t the “slightest idea” what happened to the equipment after the accident, although Kimmell told him it was damaged. The equipment was a year old and he replaced it with new equipment bought at a country club.

3. Dr. William Schreiber ($50.50). Although plaintiff testified the visit to Dr. Schreiber, an internist, was because of problems related to the accident, the examination was more than a year after the accident and the charge appears to be a periodic physical examination and associated tests.

4. Norton Infirmary ($529.70). The charge is for hospitalization in 1973 for the purpose of traction. Based on Dr. Baden-hausen’s testimony the jury could rationally have concluded the expense was not attributable to the accident.

5. Yale Shoes ($97.00). Dr. Badenhau-sen testified he treated plaintiff with built-up shoes for his hip condition.

6. Dr. Leatherman ($334.00). The jury could have concluded this medical expense was primarily for treatment of plaintiff’s hip condition.

7. Dr. Hughes Nichols ($23.00). Dr. Nichols is plaintiff’s dentist and the expense is for an examination of plaintiff while he was hospitalized at St. Anthony’s. The dentist found a chipped molar, which plaintiff attributed to biting down too hard at the time of the impact.

8. Jacket, trousers, shirt ($200.00). This is the value plaintiff placed on his clothing which was damaged beyond use in the accident.

The jury could have concluded plaintiff did not incur significant loss of wages as a result of the accident. Plaintiff’s claim of $32,300.00 in lost income was based on the number of days which he was unable to work because of hospitalization, doctors’ visits, and pain, and was arrived at by determining an average daily wage, which was multiplied by the number of lost days. Mr. Kaiser at the time of trial was a corporate vice-president and general manager. There is no evidence any sums were deducted from his salary as a result of days missed from work. Furthermore, the jury could have concluded that not all the lost work was attributable to the accident. The evidence showed the following yearly income, including bonuses, in the years preceding and following the accident:

1969 $27,840 (includes bonus for 1968)
1970 28,534 (includes bonus for 1969) (year of accident)
1971 30,302 (includes bonus of $5,302 for 1970)
1972 38,414 (includes bonus of $11,518 for 1971)
1973 42,650 (estimate, including bonus for 1972)
1974 48,000 (estimate, including bonus for 1973)

Although Mr. Kaiser contended he could have increased the size of his bonuses, which are based on the sales and profits of his division, had he been able to devote full time and attention to his work, the evidence was that his bonuses may not exceed 50% of his base income. Evidently, Kaiser’s base income was $25,000.00 in 1971, the year following the accident. His bonus for that year was $11,518.00, or only $732.00 below the maximum allowable. A jury could rationally have denied plaintiff any significant sum as lost wages.

Judging the credibility of witnesses and resolving conflicts in the evidence was for the jurors, and they apparently resolved such questions in defendant’s favor, on the issue of damages. The actual award is within the range of verdicts which a reasonable and impartial jury might have returned, although it is near the bottom of the permissible limits, given these facts. Although the award of damages is smaller than we, as fact finders, might perhaps have made, the additur suggested by the trial court, and accepted by defendant, substantially increases plaintiff’s compensation. There being no indication of prejudice, passion, or caprice by the jury, we find no abuse of discretion in the trial judge in granting an additur or in the amount thereof.

The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against appellants.

Affirmed.

SHRIVER, P. J., and TODD, J., concur.

      . For purposes of constitutional analysis, the uses of additur and remittitur are logically indistinguishable. At issue in both instances is the authority to disturb the jury’s verdict on grounds of dissatisfaction with the award of damages and the relative roles of the judge and jury. The inseparability of the two practices was recognized by the Tennessee Supreme Court in McCall v. Wear, supra, in which it noted that the problem involved in the instant case also inheres in the use of the remittitur. 487 S.W.2d at 311. Consequently, available cases dealing with remittitur will be examined as well as those dealing with additur.
      In Dimick v. Schiedt, supra, the U. S. Supreme Court attempted to distinguish the two practices. It asserted that “[wjhere the verdict is excessive, the practice of substituting a remission of the excess for a new trial is not without plausible support in the view that what remains is included in the verdict along with the unlawful excess, — in that sense that it has been found by the jury — and that the remittitur has the effect of merely lopping off an excrescence. But where the verdict is too small, an increase by the court is a bald addition of something which in no sense can be said to be included in the verdict.” The distinction is not persuasive, for the sum remaining after the remittitur is no more the verdict of the jury than the sum resulting from the additur. In reaching a verdict for a given amount a jury has presumably rejected all possible verdicts both below and above that amount. A close reading of Dimick reveals that the distinction was merely a practical one, resulting from the necessity of finding a basis that would allow the Court not to disturb the remittitur, which had been upheld in numerous cases the Court was loath to overrule, but at the same time would permit it to avoid extension of “doubtful precedent.” 293 U.S. at 485-86, 55 S.Ct. 296. For the same reason, the distinction was employed by the California Supreme Court in Dorsey v. Barba, supra, although the court acknowledged that “there may be no real distinction between the powers to increase and decrease an award of damages . . . .” 240 P.2d at 609.

      . In 1911 the General Assembly passed a statute permitting appellate review of a re-mittitur if the trial judge assigned as reason for suggesting it “passion, prejudice, partiality, corruption, or unaccountable caprice on the part of the jury.” Tenn.Pub.Acts 1911, Ch. 29. The wording of the Act created some confusion, and lower court judges occasionally interpreted it as permitting a suggestion of remittitur only when such a state of mind was found on the part of the jury. See, e. g., Third Nat. Bank v. Am. Eq. Ins. Co. of N. Y., 27 Tenn.App. 249, 264, 268, 178 S.W.2d 915 (1943). The effect of the Act, however, was not to define the circumstances under which remittitur could be used, but to delineate the circumstances under which that use could be reviewed. See Waller v. Skelton, 186 Tenn. 433, 211 S.W.2d 445 (1948); Hooker, “The Adequate Award; Tennessee Trends,” 23 Tenn.L.Rev. 760, 763 (1955). The statute was amended in 1949 and now permits appellate review regardless of the ground suggested for the remitti-tur. T.C.A. § 27-118.

      . The Court’s attempt to reconcile the cases has created a curious result. A trial judge is unable to grant a new trial because of the amount of damages awarded unless he finds passion, prejudice or caprice. He may grant a new trial because of the amount of damages awarded without a finding of passion, prejudice or caprice, however, provided only the opposing party refuses to adjust the verdict. The distinction is still adhered to in our cases. See, e. g., Board of Mayor and Aldermen of Covington v. Moore, 33 Tenn. App. 561, 569, 232 S.W.2d 410 (1950).

      . If the verdict is influenced by “an element of actual corruption”, however, the verdict should be set aside and a new trial ordered. Reeves v. Catignani, 157 Tenn. 173, 176, 7 S.W.2d 38 (1928). Even in cases in which remittitur may be suggested the process is a “delicate one . . . that a court should be slow to adopt”. Id

      . The general view today also seems to be that passion, prejudice, or caprice may not be cured by a remittitur. Annot., 65 A.L. R.2d 1331, 1347 — 48 § 6; 66 C.J.S. “New Trial” § 209(d) at 524; 3 W. Barron & A. Holtzoff, Fed.Prac. & Proc., § 1305.1 at 375 (1958).

      . It should- be noted that the power to set aside a verdict not supported by evidence is not complete protection against effect of prejudice on the finding of liability. It is rare for a case to reach a jury if there is no evidence indicating liability. In cases of marginal or unclear liability a prejudiced jury may render a verdict that an unprejudiced jury would not have reached.

      .The final paragraph of the Roberts decision contains the statement that “[w]e are of the opinion, therefore, that it is good law, sound policy, and no invasion of the rights of parties or the province of the jury, and no exercise of original jurisdiction, to adopt the practice of requiring remittiturs in this court at the option of the appellee . .” 113 Tenn. at 499, 82 S.W. at 316. It is clear, however, that the statement is a sentence summarizing the Court’s conclusion on the several points considered in the opinion. The reference to there being “no invasion of the rights of parties or the province of the jury” is to the Court’s holding that the use of remittitur in actions for unliquidated damages in tort in general is no invasion of the right to a jury trial, and not to the narrower issue whether prejudice, caprice, or corruption in such cases can be cured by remittitur. See 113 Tenn. at 495-96, 82 S.W. 314.


author: SHANNON, Justice.

text:
    Henry TOUNGATE, Appellant, v. L. C. TOUNGATE et ux., Appellees.

    No. 12324.
    Court of Civil Appeals of Texas, Austin.
    Nov. 5, 1975.
    Rehearing Denied Dec. 3, 1975.
    Harold L. Coit, Austin, for appellant.
    James Max Moudy, Georgetown, for ap-pellees.

       Editor’s Note: The decision in Howard v. Allright Garage, Inc., published in the advance sheets at this citation (529 S.W.2d 247) was withdrawn from the bound volume at the request of the Supreme Court after dismissing the entire appeal as moot.

   SHANNON, Justice.

Appellant, Henry Toungate, filed suit in the district court of Williamson County against his uncle and aunt, Lum and Lorene Toungate, appellees. By his suit appellant sought, among other things, to impose a constructive trust for his benefit on a parcel of land. The land consists of a half acre out of a ten-acre tract purchased by appel-lees in 1946 and is located about fifteen miles southwest of Georgetown in Williamson County. Upon trial to the court, judgment was entered that appellant take nothing. The judgment declared further that the title and interest in the land was in appellees. We will affirm that judgment.

Appellant’s trial pleading was his first amended original petition. In connection with his claim for the ijmposition of the constructive trust appellant alleged that he bought the half acre of land from his uncle and aunt in December, 1972, for the sum of eighty-five dollars. Appellant pleaded that the appellees continued to hold record title to the land though they have recognized his claim to the land and have agreed to deliver title to the land to him. Appellant averred further that because of the relationship of trust which existed between the parties, he did not demand delivery of title, but instead had faith that his uncle and aunt would give him a deed when requested to do so. The appellees refused to deliver title to appellant.

Appellant’s position at trial and on appeal is best summarized by a line of his testimony on cross-examination, “I am saying that he [Lum] is trying to beat me out of my land.” At trial appellant testified that there had always been a close relationship between him and Lum. In fact appellant “ . . . thought more of him [Lum] than anybody alive, except my daddy.” In December, 1952, appellant had been discharged from the United States Army. He had some cash representing his mustering-out pay. About that time Lum was “hurt financially.” Appellant testified that he “ . . . wanted that piece of property [the half acre] because I bought it for my mother.” At that time appellant’s mother and father lived on land adjacent to the half acre. Appellant recalled that, “Lum needed some money and he offered me the piece of land . . . ” Appellant testified, in effect, that he accepted Lum’s offer. Appellant introduced into evidence the check which he gave Lum on December 6. On that check there appears the following notation, “ V2 acre of land on south side of farm road 620.” With respect to any promise to make and deliver a deed to the property, appellant testified that, “Lum told me he wasn’t in shape to survey it, and when he got out of á bind, he would have it surveyed and give me my deed.”

In the intervening years, appellant said that he had asked Lum twice for a deed to the half acre. Lum’s reply to the first request, appellant said, was that the land was under mortgage, and his reply to the second request was that Lorene would not sign such a deed. Appellant testified that he had paid the school taxes on the half acre for about four years.

Appellant called as a witness his brother, Curtis Toungate. Curtis testified that he was present at the time of the transaction between appellant and Lum. Curtis understood the transaction to be that appellant had bought the property and “ . . .it was his [appellant’s] property.” Curtis recalled Lum saying that he would sell it to appellant because “ . . . mother had property there, and it joined her property, and he [Lum] would not ever think of selling it to anybody else.”

Appellant’s mother, Rachel Toungate, his aunt, Julia Toungate, and his brothers, Curtis and Raymond Toungate, had heard Lum or Lorene refer to the half acre of land as appellant’s land.

Lum explained the December, 1952, transaction between him and appellant in the following manner, “Henry gave me a check where I wouldn’t sell that land to nobody as long as his mother and dad should live.” Lum recalled that on the day of the transaction appellant, appellant’s father, and he had been killing hogs or “something like that.” He testified that appellant gave him the check and said that he did not want Lum to sell the half acre as long as appellant’s mother and father were alive, and that he agreed not to sell the land. Lum did not recall any statement by appellant to the effect that he wanted to buy the land.

Lum testified that he had been approached by several prospective purchasers for the half acre. He has not tried to sell the land for the reason of the agreement between him and appellant that he would not sell for so long as appellant’s parents were alive. He testified further that he had always paid taxes on the whole ten acres, including the half acre.

Lum and Lorene both denied that they had ever referred to the half acre as appellant’s land.

The testimony was that appellant never made any use of the half acre other than to store thereon some deer blinds, barrels, and reinforcement steel.

Upon request, the court filed findings of fact and conclusions of law, and upon further request, the court filed additional findings and conclusions. The court found, among other things, that on December 6, 1952, appellant delivered his check in the sum of eighty-five dollars to Lum Toun-gate. The check bore the notation, “ ½ acre of land on south side of farm road 620.” At the time of the delivery of the check, a very close familial relationship, one of trust and confidence, existed between the parties. Appellees were in need of money in December, 1952. The sum of eighty-five dollars was at least the equivalent of the fair market value of the land.

The court found further that the evidence was conflicting as to whether appellant gave the check to Lum for the purchase of the land and title thereto, or whether, as claimed by Lum, that the check was given to Lum in consideration for his agreement to withhold selling the land for so long as appellants were alive and residing next to the property.

The court found as a fact that appellant had never continuously used or cultivated the land, nor had he made any improvements thereon, nor had he ever resided there, nor had he manifested a claim to the land prior to filing suit. The court found that the appellees have never recognized ownership of the land to be in appellant. The appellees have paid all pertinent taxes on the land since 1946, and appellant has paid school and county taxes on the land, but not continuously since December, 1952. Appellant’s mother still lives next to the land in controversy.

The court concluded, among other things, that the check was signed by appellant and delivered to Lum, but that the record did not establish by a preponderance of the evidence that a purchase and sale of the land was intended or effectuated.

The threshold finding and conclusion which appellant must overturn in order to prevail on his theory of constructive trust is the finding which provides that the evidence was conflicting concerning whether appellant gave the check to Lum to purchase the land and the title thereto, or whether appellant gave the check to Lum in consideration for his agreement to withhold selling the land for so long as appellant’s parents were alive and residing next to the property, and the conclusion which provides that the record did not establish by a preponderance of the evidence that a purchase and sale of the land was intended or effectuated. Appellant attacks the finding by his point of error number one which we construe to mean that the finding is so contrary to the great weight and preponderance of the evidence so as to be clearly wrong.

In a nonjury case the trial court is the judge of the credibility of the witnesses and the weight to be accorded to their testimony. Great American Insurance Company v. Murray,, 437 S.W.2d 264 (Tex.1969); Wilmans v. Hubble, 153 S.W.2d 228 (Tex.Civ.App. 1941, writ ref’d). Where there is evidence of probative force to support the findings and the judgment of the trial court, such findings will usually not be disturbed, even though the evidence is conflicting and the reviewing court might have concluded otherwise. Corn v. First Texas Joint Stock Land Bank, 131 S.W.2d 752 (Tex.Civ.App.1939, writ ref’d).

We have read the statement of facts, much of which has been summarized in this opinion. We are of the opinion that the finding attacked by point of error one is supported by probative evidence. Even though we are not certain that we would have concluded in the same way as the trial court, had we been the fact finder, still we are satisfied that the finding of the trial court was not so contrary to the great weight and preponderance of the evidence so as to be clearly wrong.

The judgment is affirmed.


author: NYE, Chief Justice.

text:
    VICTORIA COMFORT AIR COMPANY, Appellant, v. ALAMO EXPRESS, INC., Appellee.
    No. 1003.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 18, 1975.
    Rehearing Denied Oct. 16, 1975.
    Motion to Amend Record Denied Nov. 6, 1975.

      Nathan P. Hoffman, Victoria, for appellant.
    Steve Q. McManus, Victoria, for appellee.
   OPINION

NYE, Chief Justice.

This is a freight damage suit brought by Victoria Comfort Air Company against Alamo Express, Inc. After trial in Justice of the Peace Court in Victoria County which favored the plaintiff, Alamo appealed to the County Court at Law where a trial de novo was had. The trial court entered a take nothing judgment in favor of Alamo, whereupon plaintiff appeals.

The case was tried before the court without the benefit of a court reporter. The transcript includes the pleadings, the judgment, the trial court’s findings of fact and conclusions of law. The balance of the record, which is a transcription of the hearing before the court on plaintiff’s motion for judgment and the parties’ statements in their briefs, indicates that the trial court refused to permit the introduction of the deposition testimony of plaintiff’s witness John Henry Smith. Smith’s testimony was essential to establish plaintiff’s claim for money damages. During the course of the trial, plaintiff’s attorney offered Smith’s deposition. The defendant objected on the grounds that the deposition did not comply with Rule 189, T.R.C.P., in that the plaintiff had failed to set out the proper mailing address of the officer taking the deposition in his notice. The plaintiff argues that it was too late for defendant to object to the deposition since the interrogatories had been on file with the clerk of the court for many months prior to trial and that plaintiff could not now object, citing Rule 212, T.R.C.P. The trial court sustained the defendant’s objection anyway, and ruled that the plaintiff should take nothing.

On appeal, the plaintiff argues that Rule 212 is decisive and that we should reverse the trial court’s judgment and render judgment for the plaintiff. The “Rule” says:

“When a deposition shall have been filed in the court at least one entire day before the day on which the case is called for trial, no objection to the form thereof, or to the manner of taking the same, shall be heard, unless such objections are in writing and notice thereof is given to the opposite counsel before the trial commences. As amended by order of March 19, 1957, effective Sept. 1, 1957.” Rule 212, T.R.C.P.

The “Rule” is clear. If a deposition has been on file for more than one day, any such objection thereof as to the form, must be made in writing with notice to the opposing counsel before the trial begins. See Bankers Multiple Line Insurance Company v. Gordon, 422 S.W.2d 244 (Tex.Civ. App. — Houston [1st Dist.] 1967, no writ); Morgan v. Morgan, 519 S.W.2d 276 (Tex.Civ.App. — Austin 1975, n. r. e.). Since the subject deposition had been on file for a long period of time (in excess of one day), and defendant’s objection came for the first time in court, the trial court erred in sustaining defendant’s objection. But did the appellant perfect this error?

Rule 372, T.R.C.P., states that if either party during the progress of a trial is dissatisfied with any ruling, opinion or other action of the court, he may except thereto at the time such ruling is made and at his request, time shall be given to embody such exception in a written bill. The reason for requiring the offering attorney to state his exceptions to the trial court’s ruling is to inform the trial judge of the attorney’s claim of admissibility, and by having such exception in writing, it permits the appellate court to understand the scope and the effect of such ruling. On appeal an exception to the trial court’s ruling on the admissibility of evidence, briefly stated, is necessary, unless the statement of facts contains all of the evidence requisite to explain the bill. This permits the reviewing court: 1) to determine the character and nature of the disputed evidence that was excluded; 2) to estimate the influence that such evidence might have in proving up the essential elements of plaintiff’s case (or the opposing attorney’s defense); and 3) to determine the substantial fact issues to which it relates.

The plaintiff argues here on this appeal that it was impossible for him to offer a bill of exceptions since there was no court reporter. This is not true. The attorney can, and the trial court must allow the attorney to make his bill of exceptions. Smith v. State, 490 S.W.2d 902, at page 908 (Tex.Civ.App. — Corpus Christi 1973, writ ref’d n. r. e.). This would be the same either with or without a court reporter being present. The appellant (plaintiff) should have offered the deposition into evidence on his bill of exceptions. He should have stated to the court what he believed the evidence would prove, and what the testimony of the witness would have been. One of the purposes of the bill is to show what the answer of the witness would have been to the question or questions propounded. After the trial, the bill of exceptions should have been reduced to writing and presented to the trial court, for his approval as to substance and form, and signed by the trial judge. The rule provides for the guarantee of the accuracy of such exceptions. In the absence of such a bill of exceptions, no error on the part of the trial court is shown on appeal. Without this bill before us, we have no way of knowing actually what transpired. See LeNoble v. Weber, Hall, Cobb and Caudle, Inc., 503 S.W.2d 321 (Tex.Civ.App. — Tyler 1973, no writ).

The plaintiff continues to argue that we should pass upon the deposition testimony because the written interrogatories and answers thereto were ordered by him to be placed in the transcript and are now before this Court on appeal for our inspection. This does not comply with the proper form of a bill of exceptions and as such does not preserve the same for appellate review. See Bowles v. Bourdon, 213 S.W.2d 713 (Tex.Civ.App. — Galveston), aff’d, 148 Tex. 1, 219 S.W.2d 779 (1949). See McCormick & Ray, 2d Ed. Vol. 1, § 21 to § 30, pages 18-32. With no statement of facts and no bill of exceptions, this Court is without authority to review plaintiff’s appeal based upon the trial court’s ruling on plaintiff’s evidence.

There being no reversible error, the judgment of the trial court is affirmed.

OPINION ON MOTION FOR REHEARING

Appellant in its motion for rehearing asserts that this Court erred in holding that its points of error numbers 1, 2, 3 and 5 were not properly preserved because there was no statement of facts or bill of exceptions in the record that was before this Court.

Appellant first asserts that there was a statement of facts, it being in the nature of an “agreed statement of facts” which contained the objections to and ruling of the court on the exclusion of the deposition testimony and, therefore, a bill of exceptions which included the deposition testimony, was unnecessary. Both parties admitted that there was no court reporter present during the trial. The record does not contain any findings of fact or conclusions of law. On February 18,1975, the day the trial court actually entered judgment for the appellee, appellant filed its motion for judgment during which a hearing was had on the motion. This hearing was transcribed by a court reporter. The transcription was denoted “Hearing on Plaintiff’s Motion for Judgment”. It was separately bound, contains statements by appellant’s attorney as to some of the facts testified to by each witness, presumably the objections and rulings by the trial court with respect to the exclusion of the deposition testimony, and the court’s ruling on appellant’s motion for judgment. This, appellant argues, is the agreed statement of facts of the trial on the merits of the case. At the end of the transcription in question appears the following:

“AGREEMENT OF COUNSEL
We, the undersigned counsel of record for both the Plaintiff and Defendant herein, agree and stipulate that pages numbered 1 through 9 hereof, constitute a full, true and accurate statement of all facts and documentary evidence adduced upon the trial of the above entitled and numbered cause, and same as such may be filed as the statement of facts on appeal hereof.”

The Eastland Court was faced with a similar situation in the case of Goodpasture, Inc. v. Myers, 458 S.W.2d 490 (Tex.Civ.App. —Eastland 1970, writ ref’d n. r. e.). The attorneys’ agreement with reference to the statement of facts stated that the foregoing “pages and one separate box of original exhibits being set up by agreement — constitute a full, true and correct transcript in question and answer form of all the testimony and proceedings had, and all documentary evidence introduced during the trial — ”. The record that was sent to the appellate court did not contain a certificate from the court reporter or the trial judge nor did it contain any agreement that certain complained of arguments were actually made nor did the record state that the arguments, objections and rulings thereon as shown in the statement of facts were actually made as therein shown. The court held that such points concerning the alleged error in the arguments were not properly preserved for the Court of Civil Appeals.

The separately bound document denoted “Hearing on Plaintiff’s Motion for Judgment” was just that. It was not an abbreviated statement of facts as appellant argues. The mere fact that appellee’s and appellant’s attorneys agree that such will constitute a statement of facts cannot make it a statement of facts. It is merely the transcription of plaintiff’s motion for judgment and nothing more.

It also appears that such transcription does not constitute an abbreviated statement of facts as contemplated by the Rules of Civil Procedure. Rule 378 provides as follows:

“The parties may agree upon a brief statement of the case and of the facts proven as will enable the appellate court to determine whether there is error in the judgment. Such statement shall be copied into the transcript in lieu of the proceedings themselves.’’ (Emphasis supplied.)

The document was separately bound and does not appear in the transcript as the rules require. We conclude that the document entitled “Hearing on Plaintiff’s Motion for Judgment” does not suffice as an abbreviated statement of facts adduced upon the trial of the case. However agreed by the parties, it is not an accurate reproduction of what took place during the trial of the case on its merits. Therefore, there was no statement of facts presented which would show the objection and ruling of the trial court with respect to the excluded deposition testimony.

Appellant further argues that the court refused to allow appellant’s counsel time to go get authority to convince the court that the appellant’s objection was not good. Even after reviewing appellee’s purported statement of facts, such does not appear to be the case. There is nothing there that indicates the court refused to allow appellee to get his authorities, nor was there a showing that appellee’s attorney made the request for such additional time.

Even if such a document can be considered an abbreviated statement of facts, which we hold it is not, in the absence of a bill of exceptions showing what the deposition testimony would have been, no error on the part of the trial court is shown on appeal. Appellant contends in its motion for rehearing that this Court erred in holding that it was necessary to include the contents of the deposition in a bill, formal or informal, because the objection made and sustained related to the proper method of taking the deposition, not to its contents. Appellant seems to be arguing that our review is confined or limited to the sole issue of whether the trial court erred in excluding the deposition testimony based on Rule 189, T.R.C.P. and that once it is determined that such exclusion was erroneous, appellant is, without having to proceed further, entitled to a reversal of the trial court’s judgment. We disagree.

It is well settled that where there is no showing of what the witnesses’ excluded testimony would have been, either by bill of exception or in a statement of facts, nothing with respect to exclusion of the testimony is presented for review. LeNoble v. Weber, Hall, Cobb and Caudle, Inc., 503 S.W.2d 321 (Tex.Civ.App. — Tyler 1973, no writ). Although appellant has satisfactorily shown error in the trial court’s judgment in excluding the evidence, he must proceed further, showing what the improperly excluded evidence was, and that such error was reversible error. Rule 434, T.R.C.P., reads in part as follows:

“. . .no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, . . .”

Without a showing by either a bill of exception or statement of facts as to what the excluded deposition testimony would be, we are unable to accurately determine whether there was reversible error, i. e., that the error complained of amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.

Appellant’s motion for rehearing is overruled.

OPINION ON MOTION TO AMEND RECORD

Appellant has filed its motion to amend the record. Rule 413, T.R.C.P., provides:

“A cause will be properly prepared for submission only when a transcript of the record exhibits a cause prepared for appeal in accordance with these rules, and filed in the court under the rules, with briefs of one or of both the parties. All parties will be expected, before submission, to see that the transcript of the record is properly prepared.” (Emphasis added).

Although our Court has discretion to supplement the transcript or statement of facts, we do not believe that we should exercise such discretion where such motion has been filed after the first motion for rehearing has been overruled as this would interfere with the orderly administration of justice and does not comport with the provisions of the above cited rule. See Archer v. Storm Nursery, Inc., 512 S.W.2d 82 (Tex.Civ.App. — San Antonio 1974, no writ), and cases cited therein. See also Sympson v. Mor-Win Products, Inc., 501 S.W.2d 362 (Tex.Civ.App. — Fort Worth 1973, no writ); Bituminous Casualty Corporation v. Moore, 396 S.W.2d 249 (Tex.Civ.App. — Tyler 1965, writ ref’d n. r. e.).

Motion denied.


author: REYNOLDS, Justice.

text:
    R. A. WILKES, dba Wilkes Clock Shop, Appellant, v. Don MASON and Ann Loewenstern, Appellees.
    No. 8606.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 14, 1975.

      Robin M. Green, Amarillo, for appellant.
    Culton Morgan Britain & White, Sam R. Cummings, Amarillo, for appellees.
   REYNOLDS, Justice.

Aggrieved by a take-nothing summary judgment rendered in his suit for property damages, R. A. Wilkes has appealed, contending that the trial court erred in denying his motion for summary judgment and in granting the summary judgment motion of defendants. The record does not establish the right of either party to summary judgment. Reversed and remanded.

R. A. Wilkes operated a business under the name of Wilkes Clock Shop on orally leased premises in a building owned by defendants Don Mason and Ann Loewenstern. Water leaked from a broken pipe through the ceiling onto Wilkes’ merchandise and, by this suit, he sought to establish defendants’ liability in the amount of $1,986.27 for the damage caused by the water. The pleaded theory of recovery was that defendants had negligently failed to properly repair the water pipes after orally contracting to do so as an inducement for Wilkes’ continued occupancy of the leased premises.

Both Wilkes and the defendants moved for summary judgment. Wilkes relied on his affidavit to establish the elements of his pleaded cause of action, and defendants submitted the deposition testimony of Wilkes to show that defendants had no duty to keep the premises repaired. Each party controverted the summary judgment motion of the other. The court denied both motions.

Thereafter, defendants again moved for summary judgment on the ground that there had been an accord and satisfaction of the claim made by Wilkes. The motion was accompanied by the affidavit of defendant Don Mason and a copy of a $100 check admittedly endorsed by Wilkes, who received the proceeds. The check was dated subsequent to the time Wilkes’ claim arose and bore the printed notation, in very small capital letters: “THIS CHECK IS IN FULL SETTLEMENT AS SHOWN HERE ACCEPTANCE BY ENDORSEMENT CONSTITUTES RECEIPT IN FULL,” above four lines on which could be indicated the purpose for which the check was drawn. None of the lines was completed to show the purpose of the check. As it is material to the defense of accord and satisfaction, Mason’s affidavit reads:

. We told Mr. Wilkes that we wanted him to have this check for the damages and inconvenience caused him by virtue of the water leakage. Mr. Wilkes made statements to the effect that he thought that we were not treating him fairly. Nevertheless, we left the check and returned to our offices.
The check was tendered with the intent of fully discharging any claim that Wilkes had towards Ann Loewenstern and myself by virtue of the water damage. We did not intend nor did we tell Mr. Wilkes that this check would be in part payment of any claim that he might have against us.

In controverting this summary judgment motion, Wilkes formally asserted that at the time the check was handed to him, he said he did not want it, and then he was told, “Well, this will help you to clean up the place and get the place cleaned up.” Further, Wilkes vowed that it was not his intention at any time to accept the check, which was laid on a table, in payment of the damages.

The trial court granted defendants’ second summary judgment motion and rendered judgment that Wilkes take nothing. Wilkes has appealed, challenging the judgment by his second point of error.

Summary judgment should be granted, and if granted should be affirmed, only if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). To establish a right to summary judgment as a matter of law, the moving party must present summary judgment proof of the absence of any genuine issue of material fact respecting his plea for relief and that, as a matter of law, he is entitled to judgment. Lokey v. Texas Methodist Foundation, 479 S.W.2d 260 (Tex.1972). Thus, the movant for summary judgment has the burden of proof, and all doubts as to the existence of a genuine issue of a material fact are resolved against him, Parrott v. Garcia, 436 S.W.2d 897 (Tex. 1969), the evidence being viewed in the light most favorable to the party opposing the motion for summary judgment. Valley Stockyards Company v. Kinsel, 369 S.W.2d 19 (Tex.1963). In this connection, the testimony of an interested witness, which generally does nothing more than raise a fact issue, does not establish a fact as a matter of law on motion for summary judgment unless it is clear, direct and positive, with no circumstances in evidence tending to discredit or to impeach such testimony. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972).

Thus, when defendants moved for summary judgment on the ground of accord and satisfaction, they were required to conclusively establish that affirmative defense, an essential element of which is an assent of the parties to an agreement that the $100 check was paid and accepted in full satisfaction of the claim of Wilkes for $1,986.27. Jenkins v. Henry C. Beck Company, 449 S.W.2d 454 (Tex.1969). This defendants failed to do. The summary judgment record reveals no more than an unresolved fact issue respecting the intent of the parties concerning the tender and acceptance of the check. Even the affidavit of Mason, considered apart from Wilkes’ controverting affidavit, shows that there was no meeting of the minds on the settlement of the claim.

Notwithstanding, defendants contend that the act of Wilkes in endorsing and accepting the proceeds of the check with the printed notation thereon constituted an acceptance of the check in satisfaction of his claim under the holding in Avent v. Stinnett, 513 S.W.2d 89 (Tex.Civ.App.— Amarillo 1974, no writ). The holding in Avent is not that broad. There, although the check bore the same printed notation as the check now before us, the printed notation was prominently displayed and followed by a typed notation of the purpose for which the check was drawn; here, the printed notation was in fine print without any information inserted in the spaces provided to signify the purpose of the check. Moreover, creditor Avent was the actor in obtaining his check and he voiced no objection to the amount, while Wilkes did not solicit the check at issue here and he protested its tender as full settlement of his claim.

Since defendants failed to discharge their burden of proof, they were not entitled to summary judgment. The second point of error is sustained, and we must consider the first point contending that the court erred in denying Wilkes’ motion for summary judgment. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958).

The motion for summary judgment filed by Wilkes did not state the specific ground therefor as required by Rule 166-A, Texas Rules of Civil Procedure. The motion was supported only by his affidavit which, to prove the absence of any genuine issue of fact that defendants negligently failed to properly repair the water pipes, merely states that defendants

did make one or more ineffectual attempts to repair the pipes in this building. At the time they were making these repairs, I was not aware of the method or the purpose which they intended to use in repairing or replacing the pipes. It was only after other circumstances arose that I became aware that they had negligently and willfully failed and refused to properly repair the pipes in this building.

Obviously, the statements are conclusions without the recitation of any facts upon which the conclusions are based; indeed, the affidavit negates the knowledge of facts upon which the conclusions could be based. The affidavit does not meet the requirements of Rule 166-A, which requires the setting forth of facts that would be admissible in evidence, Crain v. Davis, 417 S.W.2d 53 (Tex.1967), and conclusions are not competent evidence to support summary judgment. Hidalgo v. Surety Savings and Loan Association, 487 S.W.2d 702 (Tex.1972). The trial court properly denied summary judgment to Wilkes, and his first point is overruled.

The summary judgment rendered by the trial court is reversed and the cause is remanded.