author: HARBISON, Justice.

text:
    Kenneth W. JENKINS et ux., Petitioners-Plaintiffs, v. The COMMODORE CORPORATION SOUTHERN et al., Respondents-Defendants.
    Supreme Court of Tennessee.
    July 2, 1979.
    Rehearing Denied Aug. 20, 1979.

      Edward Sempkowski, Gary E. Brewer, Morristown, Fred L. Myers, Newport, for petitioners-plaintiffs.
    John W. Wheeler, Knoxville, Hodges, Doughty & Carson, Knoxville, of counsel, for the Commodore Corp. Southern.
    James C. McSween, Jr., Newport, for Freeman Mobile Home Sales, respondents-defendants.
   OPINION

HARBISON, Justice.

This action was brought by petitioners, plaintiffs below, for the wrongful death of their two-year-old son. The child was critically burned in a fire which destroyed the mobile home of petitioners. Defendants to the action were the manufacturer of the mobile home and the local dealer from whom petitioners purchased it at retail.

The case was submitted to the jury as to both defendants, respondents here, on theories of negligence, strict liability and breach of implied warranty. Both defendants denied liability and in addition contended that the plaintiffs were guilty of contributory negligence or assumption of risk.

The issues were sharply drawn, and the evidence highly conflicting. The principal claim of the petitioners was that an electric heater, or furnace, in the mobile home was defectively or improperly wired, and that it had malfunctioned for several weeks prior to the fire. The mobile home was purchased new and had been used by petitioners for approximately one year prior to the date of the fire, November 11, 1973. During the first winter of its use, petitioners had experienced no difficulty with the heating unit, but beginning in September 1973, when they again attempted to use it during cool weather, it failed properly to heat their home. Petitioners testified that they called this matter to the attention of the local dealer on several occasions and that he promised to send a service representative or repairman to investigate and make necessary repairs. He failed to do so, however, and in the interim petitioners testified that they simply followed instructions given to them by the dealer, which included re-engaging automatic switches on circuit breakers. They testified that on several occasions these switches had opened, cutting off current to the heating unit. Petitioner Kenneth W. Jenkins, father of the deceased child, testified positively that the fire which destroyed the trailer originated in this malfunctioning electric furnace. No evidence to the contrary, direct or circumstantial, was introduced by respondents.

Sharp issues of credibility of the parties developed at the trial. The dealer unequivocally denied receipt of any complaints by the petitioners concerning the heating unit. He indicated that the unit was still under warranty and that had he been notified of its improper functioning, he would have had proper attention given to it by a representative of the firm which manufactured the furnace.

Petitioner Kenneth W. Jenkins and other witnesses on his behalf testified that after the fire they examined the remains of the electric furnace and could find no evidence of copper wiring therein. It was their theory that the unit had been equipped with aluminum wiring, which, over a period of several months’ use during the winter of 1972-1973, had loosened from its fastenings, creating a situation resulting in arcing and overheating. Petitioners testified that they had detected an odor and had heard the sound of arcing electricity when they attempted to use the heater in the fall of 1973. Traces of melted aluminum were found in the ruins of the unit which, petitioners insisted, corroborated their theory that aluminum wiring had been used.

The manufacturer positively denied that aluminum wiring had been used when this unit was manufactured in 1972. Initially, however, its representative had testified on discovery deposition that he did not know whether the wiring was aluminum or copper. At trial, he testified that he had checked his records and had found that the company was not purchasing aluminum wiring for heating units during the period when this mobile home was manufactured, but he admitted that the company had used aluminum wiring at a later time, during 1974.

The fire which destroyed the mobile home was sudden and catastrophic. In the dense smoke which was emitted, petitioner and his wife lost contact with their two-year-old son, who was at that time their only child. The father was able to assist the mother out of the rear door of the trailer, nearest their bedroom, and frantically searched through the trailer in blinding smoke and intense heat, looking for the child, until he, too, was forced to leave by the rear door. He ran around the trailer and forced open the front door into the living room. He heard cries from the child and finally located the terribly burned infant. The child appeared to be unconscious when taken from the trailer, and the parents at first thought that he had died. He lived for an additional two and one-half days, however, before finally succumbing from his extensive burns. There is little evidence that he was conscious after having been found by his father, except that on one occasion in the hospital he was heard to call for his father.

Although petitioners, by amendment to their complaint, claimed punitive damages against the dealer, no issue as to punitive damages was submitted by the trial judge as to either of the defendants. After receiving the charge of the court, the jurors deliberated a little less than one hour and returned a verdict in favor of petitioners for $250,000, the amount of compensatory damages alleged in the complaint.

Both defendants filed a motion for post-trial relief, asserting errors in failure to' direct a verdict, in the admission and exclusion of evidence and in the jury instructions as well as in the amount of the verdict. The trial judge overruled all assignments of error except those pertaining to the amount. He found that the verdict of the jury was excessive and suggested a remitti-tur of $100,000. This remittitur was accepted by the plaintiffs without protest. Defendants nevertheless appealed to the Court of Appeals, still asserting numerous trial errors together with excessiveness of the verdict and a charge that the verdict was the result of passion, caprice or prejudice on the part of the jurors.

The Court of Appeals considered a number of the assignments of error made by the defendants, including their entitlement to a directed verdict, and concluded that jury issues were fairly raised by the evidence both as to theories of liability asserted by the plaintiffs and as to the defenses asserted by the defending parties. It did not discuss a number of assignments of error respecting instructions given to the jury by the trial judge.

From its review of the record, however, the Court of Appeals was of the opinion that the verdict was so shockingly excessive and the result of such apparently brief deliberation as to evidence jury misconduct. It concluded that the verdict was the result of passion, prejudice or unaccountable caprice on the part of the jurors. It accordingly held the verdict to be a nullity and ordered a new trial on all issues. The Court of Appeals did not attempt further to correct the verdict by suggesting an additional remittitur nor did it comment upon the reasonableness of the judgment as modified by the remittitur which had been suggested and accepted.

We have carefully reviewed the record in this case. While we agree with the Court of Appeals that the verdict originally rendered by the jury was excessive, as found by the trial judge and as now conceded by counsel for petitioners, nevertheless we are unable to concur in the conclusion of the Court of Appeals that the verdict was the result of jury misconduct. There is no extrinsic evidence whatever to support that conclusion. While the period of deliberation by the jurors was fairly short, the issues on liability were quite clear-cut and sharply drawn. Although the evidence was conflicting, no great period of time was necessarily involved in reaching a decision on the disputed issues. We therefore do not believe that the period of time consumed in jury deliberations warrants a conclusion of jury misconduct in the present case.

Nor are we able to conclude that the amount of the verdict rendered by the jury, despite its excessiveness, manifested any undue emotion, prejudice, or improper motive on the part of the jurors.

In this connection, although this Court rarely comments upon the tactics or strategy employed at the trial of cases, in view of the disposition made of this case by the Court of Appeals we feel constrained to comment briefly upon some issues which were injected into the record by one of the defending parties and not objected to by any other party. These were such, in our opinion, as might well give pause to experienced counsel in a jury trial for the wrongful death of a child. Had these tactics proved successful, they might have resulted in a verdict for the defendants, but, in the event of their failure, they were certainly not calculated to win the sympathy of the jury toward the party advancing them.

Petitioners in this case were young parents who had tragically lost their first-born child following very terrible injury in which there was at least some conscious pain and suffering. There was nothing whatever in the record to suggest anything more than ordinary contributory negligence or lack of care on their part. The dealer himself proved that there was a great deal of community sympathy for these young parents, who had lost their child, their home and all of their possessions. The dealer testified that he personally made a contribution to a fund being raised on behalf of the petitioners by sympathetic members of the community, and he exhibited in evidence a check which he had given for that purpose.

During the cross-examination of Mr. Jenkins, however, as to whom there was no other evidence or suggestion of bad character, reputation or misconduct, counsel for the dealer asked the following questions and received the following answers regarding the use of an extra bedroom in the trailer:

“Q. Did you store anything in the closet in there, in that room?
“A. No.
“Q. Do you remember ever telling anybody that in that closet was where you kept your moonshine whiskey?
“A. No, sir, I’m 30 years old and I take oath to die right now I’ve never tasted of whiskey, beer or liquor or smoked no grass either.
“Q. That wasn’t what I asked you, I appreciate your testimony, but did you sell it—
“A. No, sir.
“Q. Or store it for anybody?
“A. No, sir.
“Q. Did you ever tell anybody, even jokingly, that’s what you had in the closet?
“A. No, sir.”

Having laid this foundation, counsel for the dealer later introduced the testimony of the dealer’s son-in-law, who was an employee of the dealership and, therefore, hardly a disinterested witness. This witness testified that he had talked with Mr. Jenkins on several occasions about their common interest in bear hunting, and he then gave the following testimony:

“Q. Alright, did he ever give you any indication of what he had in the mobile home of an unusual nature?
“A. Yes, sir.
“Q. Would you just relate to the jury in your own words now where this conversation took place, now it came about and what he said?
“A. Okay, Mr. Jenkins and I had one thing kindly in common was hunting, and he was all the time talking about bear season, you know, and bear hunting and would I be interested in going with him and I told him yes, I felt one day I would, you know, like to go with them, and during this conversation he said he had some good moonshine that he would — I told him, I said, ‘well, I would be glad to go bear hunting, as far as the moonshine I would lay off that.’ And on numerous occasions Mr. Jenkins would talk about, you know, the bear season, about hunting, how many he had killed, and things of this nature, and I was invited but I never did have the opportunity to go with them.
“Q. Did he ever tell you where he kept the moonshine?
“A. Yes, sir, he said that he kept it in his mobile home, that any time we would, you know, have access to it if we did go hunting.
“Q. Did he tell you where in the mobile home he kept it?
“A. In the closet, in the bedroom, the small bedroom, which is directly behind the furnace .
“Q. Have you ever seen Mr. Jenkins when he had been drinking?
“A. Yes, sir.
“Q. You have any idea what his character and reputation is as far as drunkenness or sobriety?
“A. Well, as far as the drunkenness part, you know, I couldn’t say any relationship with that, but I have been with him on occasions when he had been drinking . . . .”

On rebuttal, Mr. Jenkins took the stand and categorically denied this testimony.

The trial of a case of this nature, involving the death of a young child, is almost bound, under any circumstances, to generate an atmosphere of emotion or sympathy. For a defendant to inject evidence such as the foregoing, unless it could be almost conclusively established, represents a trial strategy which, at a minimum, may be two-edged in nature. Although the testimony was injected without objection, its relevance, if any, on this trial record seems to be slight. Had it been believed by the jury, it might have destroyed the petitioners’ case. On the other hand, if it were rejected — as it undoubtedly was — it might have had exactly the opposite effect, and might have created a distinctly unfavorable impression in the minds of the jurors, because this evidence, in effect, accused a young father of drunkenness and illegal activity which the dealer, in some way, was attempting to relate to the death of the child.

Therefore, from our examination of this record, any emotion in the minds of the jurors legitimately and naturally flowed from the tragic facts of the case or from tactics employed by counsel for the defense and cannot be categorized as improper or unjustified. It is not every “passion” or emotion which is tantamount to jury misconduct. As stated by this Court many years ago, in the case of Reeves v. Catignani, 157 Tenn. 173, 176, 7 S.W.2d 38, 39 (1928):

“The right to revise even the amount of the verdict by the process of suggesting a remittitur is a delicate one and one that a court should be slow to adopt; and if it should appear that there was in the verdict an element of actual corruption, we think the proper course would be to set it aside. The words ‘passion, prejudice or caprice’ indicate that the jury was, in the opinion of the court, swayed to a more or less extent by their feelings, which after all are human and are not inconsistent with an honest intention, while, on the other hand, a verdict that is infected with the corruption of one or more of the jurors is to that degree a dishonest verdict.”

Probably the classic cases in this state in which a jury verdict was held not to be the result of improper passion, caprice or prejudice, despite the fact that it clearly reflected emotion and indignation, is that of Arnett v. Fuston, 53 Tenn.App. 24, 378 S.W.2d 425 (1963). In that case, which involved an action for wrongful death against the operators of two automobiles, one of the drivers was exonerated. The other, who had been drinking, was the recipient of the following verdict:

“We declare L. D. Fuston guilty of charge and recommend a judgment of Thirty thousand dollars against him and punitive damages from 1 to 5 years in prison.” 53 Tenn.App. at 27.

While the reader of the opinion is left to imagine the eloquence with which counsel for the plaintiff must have castigated that defendant and can only' guess what emotions were enkindled in the minds of the jurors, nevertheless the award for “punitive damages” was held by both the trial and appellate courts to amount to nothing more than “surplusage,” and the remainder of the verdict was upheld.

We have already stated that we think, as did the courts below, that the verdict rendered by the jury in the present case was substantially excessive. It did not, however, exceed the amount sued for, and the fact that it was rendered in the maximum amount claimed in the complaint does not, in and of itself, render it invalid or improper.

While excessive, in our opinion the verdict was one which could properly be corrected by use of the broad powers of the trial and appellate courts of remittitur. See Smith v. Shelton, 569 S.W.2d 421 (Tenn.1978). The trial judge made use of this power, and the Court of Appeals, if it had seen fit to do so, might have suggested a further remittitur or a restoration, in part or in whole. It did not do so, but, erroneously in our opinion, treated the verdict of the jury as a nullity.

It was for this reason that we granted the petition for certiorari filed on behalf of the original plaintiffs. There were a number of assignments of error which had been made in the Court of Appeals by the defendants which were pretermitted by that Court. Neither of the defendants, however, saw fit to preserve these issues by filing a cross-petition for certiorari or assignments of error in this Court after the plaintiffs’ petition was granted. T.C.A. § 27-823.

The only issue in the case, therefore, in its posture before this Court, is whether or not the verdict of the jury should have been treated as a nullity by reason of misconduct. Since we have concluded that it should not, we are constrained to reinstate the verdict as modified by the trial court and remand the cause to that court for enforcement of the judgment and for such further orders as may be necessary or proper. All costs in the cause are adjudged against the respondents.

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

      . There was a discrepancy between this testimony and that of Mr. Jenkins, in that the dealer testified that he personally gave Jenkins the check, while Jenkins said that he recalled no conversation with the dealer but received the check along with a group of others.

      . This case and a number of others were seemingly disapproved by the Court of Appeals in Kaiser v. Cannon, 529 S.W.2d 235 (Tenn.App.1975) on constitutional grounds. While we agree with the statements in that opinion that a jury must be fair and impartial, we do not believe that a verdict is constitutionally unsound merely because it is excessive or inadequate, or that parties may deliberately employ incendiary tactics and then charge jury misconduct when these fail.


source: Caselaw Access Project

author: HENRY F. TODD, Special Justice.

license: Public Domain

text:
    QUALITY CARE OF NASHVILLE and the Travelers Ins. Company, Defendants-Appellants, v. Lina Mai WALLER, Plaintiff-Appellee.
    Supreme Court of Tennessee.
    July 30, 1979.
    Michael J. Philbin, Nashville, for defendants-appellants.
    Kathryn Behm Celauro, Nashville, for plaintiff-appellee.
   OPINION

HENRY F. TODD, Special Justice.

The defendants, Quality Care of Nashville and Travelers Insurance Companies have appealed from a judgment of the Trial Judge awarding to the plaintiff, an employee of Quality Care, benefits under the Workmen’s Compensation Law.

On appeal, no issue is made as to the amount of the award. The only question raised by appellants is the applicability of the Workmen’s Compensation Law to the injury of plaintiff under the special circumstances of the case.

The facts are not controverted. Plaintiff is a nurse’s aide and is employed from time to time by Quality Care which furnishes nursing personnel to various health-care institutions. For this purpose, Quality Care maintains a registry or list of available personnel. As need requires and request is made, Quality Care assigns employees from its available list to work in such institutions. Such individuals are paid by Quality Care which in turn receives payment from the institution for the services of the individual.

Plaintiff was so registered with Quality Care on December 31, 1976, when she was notified by Quality Care to report to the Sunnyview Nursing Home for work. Plaintiff had worked for Quality Care before, but had not previously worked at Sunny-view. Quality Care instructed plaintiff as to the location of Sunnyview which was on premises which extended from 17th to 18th Avenues South at Horton Street. Said premises are surrounded by a wall with openings on 17th Avenue and 18th Avenue; however, Quality Care instructed plaintiff to approach the building by way of the 18th Avenue opening in the wall because the 17th Avenue opening was an exit. Plaintiff was also instructed to enter the building through a particular door.

Quality Care assumed no responsibility for plaintiff’s transportation, and she was not paid for time spent en route to her assigned place of work (Sunnyview).

Weather conditions were such that snowy and icy conditions prevailed generally throughout the area.

Plaintiff drove her own automobile to the vicinity of Sunnyview, where she parked her car in the “lower lot” which was outside the wall. She proceeded on foot through the 18th Avenue entrance and across a parking lot on the premises toward the designated building entrance.

While walking across the parking lot toward the building entrance, plaintiff slipped on ice and fell, breaking her wrist. This injury is the subject of the present suit.

Plaintiff admits that her injury occurred before she reported for work and that she received nothing from Quality Care as a result of her activities on the day in question, i. e., going to the premises of Sunny-view where she fell.

In Woods v. Warren, Tenn.1977, 548 S.W.2d 651, this Court affirmed a judgment denying compensation under the following circumstances:

“Claimant was employed as a maid in the Warren House Apartments where she also resided. Her normal modus operands was that she would walk from her apartment to the manager’s office or apartment, ‘clock-in’, and pick up a master key, her cleaning supplies, and a list of apartments to be cleaned. Her apartment was at the opposite end of the complex from the manager’s office and apartment, which were located adjacent to each other. Normally she walked to her work, but, on occasions, she drove her automobile. No particular route was prescribed.
On the day of the accident she drove her automobile to work because it had been snowing and snow and ice covered the sidewalks. She parked near the office, in a space of her own selection, where she was permitted, but not required, to park. She emerged from her automobile, took a few steps along the icy sidewalk and fell, severely injuring her knee. All this occurred at approximately 8:00 o’clock, a. m. The sidewalk is owned by, and located upon, the premises of the apartment complex.

After discussing numerous authorities, this Court held:

“. . .in order to avoid the application of the general rule of nonliability for an injury sustained en route to or from work, the employee must show that:
a. at the time of the injury he was using a route required or furnished by the employer; [Travelers Indem. Co. v. Charvis, 221 Tenn. 593, 428 S.W.2d 797] Charvis, supra, and such route was on the premises of the employer, Little; [Little v. Johnson City Foundry etc., 158 Tenn. 102, 11 S.W.2d 690] Camel Mfg. Co.; [Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771] Aluminum Co. of North America, supra, [Aluminum Co. of America v. Baker, Tenn., 542 S.W.2d 819] and
b. the use of the required route subjects the employee to a definite special hazard. Camel Mfg. Co.; Charvis; Aluminum Co. of North America, supra, or
c. that the risks of travel are directly incident to the employment itself. Central Sur. & Ins. Corp. [Central Sur. & Ins. Corp. v. Court, 162 Tenn. 477,36 S.W.2d 907]; Douglas, supra [Douglas v. Lewis Bros. Bakeries, Tenn., 477 S.W.2d 202]

All of this is qualified by the fact that the ‘premises’ are that part of the property where the employee actually works or which he is required to use for ingress and egress. Bennett, [Bennett v. Vanderbilt University, 198 Tenn. 1, 277 S.W.2d 386] and McKinney, supra, [McKinney v. Hardwich Clothes, 217 Tenn. 457, 398 S.W.2d 265]

When we apply these rules to the instant case wherein the employee was unquestionably on the premises of her employer, we must reluctantly hold that there was no coverage under the act. She was not pursuing a required route, but was on a way of her own selection.

Assuming arguendo that the employee was, in effect, on a required route, coverage would not attach in view of the fact that her injury was not attributable to a definite special hazard. It is to be borne in mind that the phrase ‘rising out of employment’ refers to ‘the origin of the injury’, while ‘in the course of employment’ refers to ‘time, place and circumstances’ of the injury. Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765 (1966).

It takes a combination of these criteria to establish coverage under the act. See. 50-902, T.C.A. Therefore, the fact that the injury arises in the course of employment, standing alone, is insufficient. It must also rise out of the employment.
We cannot in good conscience hold that general snowy and icy conditions were definite special hazards of employment in this case. We must hold that these conditions were common to the general public and not peculiar to the nature of the employment or to the conditions under which that employment was required to be performed.”

Applying the rule just quoted, it may be said that plaintiff was (a) “using a route required or furnished by the employer.” When injured, plaintiff was walking across the premises of Sunnyview from the designated street entrance (on 18th Avenue) to the designated door in the building. Defendants insist that the door to the building was not “designated”, but the uncontradict-ed testimony of plaintiff on this subject is as follows:

“She said, ‘Go in down the steps after you get inside the wall . There is a nurses station right there in front of the door, and ask’ ” (BE p. 40)

A picture in the record (Exhibit 10) shows the area in which plaintiff fell, including the door to the building which is below the level of the parking lot and steps leading down from the parking lot to the door.

Plaintiff admits that she had her choice of routes across the parking lot to the door of the building, but this is not deemed important, because directions to approach through a particular parking lot entrance to reach a particular doorway would presuppose that the employee would use the most direct route from the entrance to the door.

The relationship of Sunnyview to Quality Care was such that, for purposes of this appeal, the premises of Sunnyview must be considered the premises of the employer.

The next requirement (b) of Woods v. Warren, above, is that the required route subjects the employee to a definite, special hazard. Here, some difficulty is encountered, for it is uncontroverted that the snow and ice was general and widespread. Plaintiff testified of its presence at her home and en route. It is not shown that the route across the parking lot was any more hazardous than any other comparable route elsewhere in the city at the time. However, the parking lot was not used by the general public, but was for the use of employees and visitors to Sunnyview.

The alternate requirement (c) of Woods v. Warren, above, is that the risks of travel be incident to the employment itself. Plaintiff’s uncontroverted testimony is that when defendant’s supervisor requested her to report to Sunnyview, she responded that she would have to ascertain whether she could arrange transportation to Sunnyview; that she found a heavy snow on the ground; that the battery had been stolen from her automobile; that she obtained another battery; and that she finally telephoned defendant that she would be able to report for duty at the assigned time. Under these special circumstances, it may be said that, at the urgent request of defendant, plaintiff did attempt a journey from her home to Sunnyview under conditions known to both parties to be hazardous.

Thus, in summary, the facts of this case conform to requirement (a), may not conform to requirement (b), and may conform to requirement (c) of Woods v. Warren.

In the case of Frazier v. Normak International, Tenn.1978, 572 S.W.2d 650, the Trial Judge denied recovery; but this Court reversed and remanded (for determination of benefits) under the following stated circumstances:

“Mrs. Frazier slipped and fell on a sheet of ice . . .as she was going to work . . . . The weather had been bad for several days; there was ice on the ground and it was snowing.”
“The Normak plant . . . has four entrances, two on 17th Street and two on an alley which runs between the buildings in the warehouse complex. The alley is closed to the general public, but is used by three other companies for shipping and receiving. A gate which leads to the alley is locked nightly and reopened each morning for employees to enter. Mrs. Frazier had walked through the gate and was headed toward the building in which she worked when she fell. The gate was the only means of access to the building at the time Mrs. Frazier arrived.”

Distinguishing the facts from those of Woods v. Warren and other cited cases, this Court observed:

“‘[2] Mrs. Frazier- was on Normak’s premises when she fell, not on a public way. The premises of an employer . which he is required to use for ingress and egress.’ Bennett v. Vanderbilt University, 198 Tenn. 1, 277 S.W.2d 386, 388 (1955)
[ 3] . . . Employees such as Mrs. Frazier were required to use the entrances off the alley. Under the facts, the alley was a required route for compensation purposes. See Aluminum Co. of America v. Baker, Tenn., 542 S.W.2d 819 (1976).
[ 4^6] . . . the hazard must be one to which the general public is not exposed. Normak urges us to follow the conclusion reached in Woods v. Warren, supra, that general snowy and icy conditions are not definite special hazards of employment. Woods is not controlling here, the icy condition was not a general one, the hazard created by the ice on the alley was peculiar to the personnel of Normak and the companies which used the alley. The general public is not allowed to enter the alley and even though three other companies used the alley, it is a part of Normak’s premises for compensation purposes. Mallette, [Mallette v. Mercury Outboard and Supply Co., 204 Tenn. 439, 321 S.W.2d 816] supra.
Normak was aware of the icy condition and its president knew that other employees had fallen. It had even salted the alley on prior occasions due to the hazardous conditions created by the weather.
In Potts v. Heil-Quaker Corp., Tenn., 482 S.W.2d 135 (1972), an employee slipped and fell on a film of oil which had accumulated on his employer’s premises. The oil was held to be a definite special hazard within the meaning of our case law. Similarly here the ice on the alley was a definite special hazard known to Normak. Access to the alley was restricted and employees arriving early were required to use entrances off the alley ...”

The above quotation clearly indicates that this Court has held that icy conditions on the required route across the employer’s premises constitute a “special hazard” even though icy conditions prevail elsewhere and even though persons other than employees (but not the general public) are allowed to enter the area where the injury occurred.

The present case falls squarely within the rule just stated. Plaintiff was directed to a particular door where she would report and receive directions. The only route to that door was across the parking lot where she fell. The parking lot was therefore a “required route.”

The fact that the parking lot is somewhat larger and offers a greater freedom of choice of precise route is immaterial. There is no evidence of a safe choice of route across the parking lot to the door. The entire lot was covered with ice.

Moreover, the parking lot was not “open to the public” in the sense that the general public was exposed to its dangers. The wall excluded the general public, and only persons having a legitimate business on the premises were invited therein. Thus, the ice which was a “general hazard” on the public streets became a “special hazard” on the premises where only employees and legitimate visitors were allowed.

The existence of the gate, locked at night, in the Frazier case and the open gateway through the wall in the present case is not deemed to be a material distinction between the Frazier case and the present case. Also, the actual knowledge of icy conditions in the Frazier case is not deemed to be a material distinction, since the parking lot in the present case was under the sole control of Sunnyview which was the “alter ego” of Quality Care.

Therefore, on the authority of Frazier v. Normak, the judgment of the trial judge is affirmed. Costs of this appeal are adjudged against appellants.

The cause is remanded to the trial court for further proceedings.

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

       (Residence within the apartment complex was not a condition of employment.)”

       (Punctuation has been slightly altered to clarify meaning).


text:
    Edward Richard CHILDS, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Aug. 6, 1979.

      Joe B. Jones, Memphis, for petitioner.
    Robert A. Grunow, Asst. Atty. Gen., Nashville, for respondent; William M. Leech, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

HARBISON, Justice.

Petitioner was convicted of murder in the second degree and sentenced to serve thirty years and one day in the state penitentiary. His conviction was affirmed by the Court of Criminal Appeals.

We granted certiorari to consider the admissibility of statements made by petitioner and of evidence discovered as a result thereof. As the case comes to this Court, these are the only questions presented, there being no challenge to the sufficiency of the evidence.

Charges against petitioner resulted from the homicide of Claudette Williams on Monday, April 4, 1977. Her body was not discovered until Wednesday, April 6 when a concerned relative went to her apartment. Her death was caused by manual strangulation. A stereo record player, some jewelry, a fur coat and other items of personal property were missing from the apartment. Descriptions of these were given to the police by a relative of decedent.

There were no immediate suspects known to the police or to relatives and friends of decedent. She lived alone in her apartment and had resided there only a short time. She was known to have been seen socially with several different persons. Photographs and names of a number of men were found in the apartment. Police began an extensive investigation into the homicide. Among those interviewed by them was Bessie Anderson, the sixteen-year-old daughter of a friend of the decedent. She told police that the deceased had stopped briefly at the home of the witness on the evening of April 4, 1977, accompanied by a male companion. Another friend of decedent told the police that decedent had a new boyfriend whose name she thought was “Giles.” It was her understanding that the two had met in a bowling alley. Upon further investigation of decedent’s apartment, the police found in a waste basket a piece of paper bearing the name “Eddie Childs” and a telephone number. The number was that of one Pat Brunson, with whom petitioner was then living. Police contacted petitioner at that telephone number and requested that he come to police headquarters for questioning. Petitioner did so but found when he arrived that the officers in charge of the investigation were in Mississippi interviewing two other persons previously associated with the decedent. Accordingly the petitioner was not questioned on that occasion and was not contacted again by the police for some time.

Following all possible leads, the police officers interviewed Ms. Brunson with whom petitioner was living and learned from her that he had done some volunteer work for a Boy Scout program. They also learned that he was working at a truck delivety service. Upon contacting the employer, however, they discovered that petitioner was using the name of Eddie Woods; apparently he used the name Childs in his Boy Scout work.

On the evening of April 13,1977, approximately nine days after the homicide, Sergeants East and Wilson of the Memphis Homicide Division met petitioner and Ms. Brunson at the latter’s apartment upon their return from work. They identified themselves to petitioner and requested him to enter the police car so that they could question him.

At no time during the development of the trial record, either during a suppression hearing or before the jury, did the petitioner testify or call any witnesses. Accordingly, the only evidence as to what occurred during the next several hours is the testimony of police officers, which was not impeached in any manner. Sergeant Wilson was not called as a witness by either side. The only evidence concerning the initial questioning of petitioner was that given by Sergeant East.

According to his testimony, petitioner voluntarily entered the police vehicle. He admitted knowing the decedent but inquired as to why he was being questioned. Sergeant East testified:

“We told him we were investigating a criminal homicide of Claudette Williams. And that we wanted to talk to him because we found his name and phone number in a garbage sack, in a garbage can in her apartment. And told him that we talked to everybody whose names come up in the investigation.”

Petitioner told the officers that he sometimes used an alias and that he had previously served a prison term following a forgery conviction under the name “William Turner.”

The officers then asked petitioner for some identification. He requested Ms. Brunson to bring his billfold to the police car and handed it to Sergeant East. East took the wallet into the front seat and took out a Boy Scout card to copy information from it. When he removed this card, he discovered a small piece of yellow paper beneath it. He recognized this as a pawn ticket, which he then removed from the billfold and found thereon the name “Eddie Woods” with the notation that an Olympic record player and speakers had been pawned for $50.00 on April 7, 1977. The address on the pawn ticket was not the address at which petitioner was being questioned, nor was there any identification of the property pawned to connect it with the decedent.

Petitioner admitted to the officers that he had used the name Woods previously, and they asked him if he had any further identification showing that name. He stated that he did and accompanied the officers into his apartment where he produced a driver’s license issued in that name. Sergeant East then testified.

“We asked Mr. Childs if he would go downtown so that we might talk to him further about it and get his fingerprints and photograph so we could find out who he was. He had three names. He agreed to do so and we got in the car and drove down to headquarters.”

The interview with petitioner at the police car began at about 5:15 p. m. and lasted some fifteen or twenty minutes. At that time Sergeant East testified that he considered the petitioner a possible witness, but not yet a suspect, and at that stage the interview was simply part of the general investigation being conducted into the homicide. He testified:

“Anytime there’s a homicide we talk to everyone that we can find that knows the victim, has ever known her, in any way. We try to talk to them; maybe they have seen her. We try to establish the last time she was seen alive and of course we do that by talking to people that she knows and knows her that might have seen her at a club or might have seen her someplace.”

At that time, the investigation involved the names of some five or six men whom the victim had known, and the officers were gathering information concerning all of them.

Both Sergeant East and other police officers who testified stated that the petitioner was cooperative at all times. East said that he readily agreed to go to the police station. As previously noted, this testimony is unre-butted and uncontradicted.

Arriving at the police station about six o’clock, petitioner accompanied East and Wilson to a room in the homicide office where he was questioned further. The only information given by him at that time was exculpatory. Petitioner told the officers that he had never dated the deceased, that he knew her only casually, having met her at a bowling alley, and that he had never been to her apartment or to the apartment complex where Bessie Anderson lived and where decedent was last seen on the evening of April 4. H

Sergeant East testified that the investigation into the death of Ms. Williams was being coordinated under Sergeant Hester of the Homicide Division. When petitioner arrived at police headquarters, Sergeant Hester was notified and said that he would check police records concerning him. Petitioner had been questioned for a few minutes when Hester came to the door and advised Sergeant East that petitioner’s fingerprints had been found to match some prints taken in the victim’s apartment and also that an outstanding arrest warrant had been discovered in which petitioner was charged with forgery. This occurred at about 6:30 p. m. Petitioner was immediately placed under arrest and given Miranda warnings.

Subsequently, during the evening, petitioner made both an oral and a written confession to the homicide, stating that he had met the victim at a bowling alley, had later sold her some marijuana for which she did not pay, and that in a struggle in her apartment he had put his arm around her neck and knocked her to the floor. He said that he did not know that she was dead when he left her apartment. He admitted burglarizing the apartment and taking several items for the purpose of paying the persons who had supplied him with marijuana.

Subsequent investigation confirmed that petitioner had pawned a stereo record player, and this was identified as being the property of decedent. A thumbprint of the person pawning the property, taken at the pawn shop, matched the print of petitioner. Other witnesses at the trial testified that petitioner had admitted knowing the decedent and that he had exhibited to them some of the property which was taken from her apartment.

Petitioner challenges the admissibility of the statements which he gave to the police on the grounds that they resulted from an illegal arrest or detention and also that they resulted from a custodial interrogation occurring after suspicion had been focused upon him, in violation of the rules laid down in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The trial judge conducted a lengthy jury-out hearing and found that there had been neither an illegal arrest nor any violation of petitioner’s constitutional rights prior to the time he was formally arrested and charged. The Court of Criminal Appeals concurred in these findings.

These issues, of course, are primarily factual in nature. We have carefully reviewed the record and conclude that the findings of the courts below are supported by material evidence and that there is no countervailing or contradictory proof which might be said to preponderate against them.

We recognize that the United States Supreme Court, both in the case of Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) and in the very recent decision of Dunaway v. New York, - U.S. -, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), has held that compliance with the requirements of Miranda v. Arizona and the protection of the Fifth Amendment rights of an accused do not necessarily afford sufficient protection against invasion of Fourth Amendment rights involving illegal arrest and detention. In the Dunaway case, the Court held that a statement which complied with the Miranda requirements was nevertheless inadmissible when it resulted from an illegal detention or arrest without probable cause.

The facts of that case, however, were quite different from those of the present case. There a juvenile was picked up on orders of a detective and brought to police headquarters for interrogation, although it was conceded that there was no probable cause for his arrest at that time. Although he was given Miranda warnings, his unlawful arrest and custodial interrogation were held to render inadmissible some incriminating statements and other information given by him.

In the case of State v. Chandler, 547 S.W.2d 918 (Tenn.1977), this Court considered in detail the decision in Brown v. Illinois, supra, noting that in addition to Miranda warnings, additional factors must be considered in determining the admissibility of a statement under both the Fourth and Fifth Amendments. There the Court said:

“The additional factors are:

“(1) The length of time between the arrest and the time the confession was made;
“(2) The presence of intervening events between the arrest and confession, such as arraignment;
“(3) The purpose and flagraney of the official misconduct.”
547 S.W.2d at 920.

In the present case, it is clear that the petitioner had on one occasion, prior to the night when he was arrested, gone voluntarily to police headquarters in response to a telephone call, in order to submit to questioning. On the night of April 13 he was questioned by police at the place where he was living and then agreed to go with them at their request.

When petitioner was taken to the police station, the officers had general information that he was acquainted with the decedent. In addition they knew that he had been using three different names, that he had pawned a stereo unit, and that a stereo record player had been stolen from the decedent’s apartment. Whether there was any similarity between the unit pawned and the missing one, however, was by no means established. Petitioner denied having ever been with the decedent to her apartment or to the apartment building where Bessie Jackson lived, so the officers had no knowledge of any relationship between him and the decedent, except his statement that he had met her and their finding of his name in her apartment. While a number of photographs of young men had been found in her apartment, none of these was shown to have been a photograph of the decedent. The names of five or six other men had been found, and investigation was proceeding as to all of these.

While counsel for petitioner argued at the trial and argues here that Sergeant East was not a credible witness and that the petitioner was involuntarily detained, not free to leave the officers’ presence and in fact actually under arrest, these are factual issues to be determined from all of the circumstances. In the absence of any countervailing evidence whatever, and in view of the fact that both the trial and intermediate appellate courts have accredited the testimony of the police officers, we are unable to sustain the contention of petitioner that his initial questioning, either at the apartment or at the police station, amounted to anything more than general inquiry or investigation or that it constituted an unlawful arrest or illegal detention.

Not until the police learned that petitioner’s fingerprints matched some of those which had been found in the decedent’s apartment did they clearly have probable cause to suspect him of the homicide. At that time, they immediately placed him under arrest and gave full Miranda warnings. There is no evidence that the statements thereafter given by him were the result of duress or coercion. The uncontradicted testimony is that after petitioner was arrested, he saw another police officer, Sergeant Burgess, in the station and asked to talk to him. He gave this officer incriminating information and later in the evening signed a written statement which implicated him in the homicide.

In the case of State v. Morris, 224 Tenn. 437, 456 S.W.2d 840 (1969), this Court discussed the implications of Miranda v. Arizona, supra, and the factors to be considered in determining whether the police had proceeded beyond an investigatory stage into an accusatory or custodial stage when questioning an accused. There a statement had been taken from the defendant following an automobile accident in which a fatality occurred. Defendant sought to suppress the statement at trial. Discussing his contention the Court said:

“The question presented to us is as heretofore stated, were Morris’ rights under Miranda violated, and was he denied the protection extended by the Constitution of the United States?
“The police officer testified that he was investigating this accident; that Morris was not in custody; that the statements made by Morris were freely and voluntarily made. That, in effect, he was acting in an investigatorial capacity, and that the finger of suspicion had not as of then been pointed to Morris as a suspect; that no warrant had been sworn out against him.
“We realize that there is a hairline of distinction between the investigatory stage and the accusatory or custodial stage. A careful examination of many decisions construing Miranda indicates to us that the courts have generally considered the totality of the circumstances in deciding whether the suspect was subjected to ‘custodial interrogation’ requiring Miranda warnings.
“The rules with reference to such questions are laid down under the following general headings:
1. The nature of the interrogator.
2. The nature of the suspect.
3. The time and place of the interrogation.
4. The nature of the interrogation.
5. The progress of the investigation at the time of the interrogation.”

224 Tenn. at 442-43, 456 S.W.2d at 842. The Court concluded that each case must be controlled by its own facts and that all of the circumstances must be taken into consideration. In view of the fact that the trial court sees and hears the witnesses and is in a superior position to that of the appellate courts in determining their credibility, the Court concluded that the trial judge should be permitted wide discretion in deciding the factual issues presented and that appellate courts should not intervene unless it clearly appeared that there had been an abuse of discretion and a violation of the rights of the accused. For authorities from other states on the subject of custodial interrogation, see Annot., 31 A.L. R.3d 565 (1970).

The factual issues presented in the present case are, arguably, close, and differing conclusions or inferences might be drawn from them by a trier of fact. Not all interrogation in a police vehicle or at a police station is “custodial” within the meaning of the Miranda decision, and certainly not all such interrogations are the result of illegal arrests or unlawful detentions. Obviously, had petitioner been questioned on the first occasion when he went to police headquarters in response to a telephone call, it could hardly have been contended that he was the victim of an illegal arrest. The fact that he had made such a voluntary appearance on a previous occasion lends some credence to the testimony of Sergeant East that he accompanied the police voluntarily on the evening of April 13.

In the present case it seems clear that until the officers had obtained the pawn ticket from the petitioner, there was no custodial interrogation of any sort. There was only brief general questioning in the police car, and the investigation certainly had not focused upon petitioner, who was then considered only a possible witness.

By the time the pawn ticket was discovered, the police knew that petitioner had been using more than one alias and that he had pawned a stereo unit on the day after the body of the deceased was discovered, which was three days after the date of the homicide. It is contended that at this point the investigation did begin to center on the accused, and that he was not then free to walk away from the interrogation. However, there was no testimony to that effect, nor was the question even asked. The only evidence in the record is that the accused cooperated readily with the police and voluntarily accompanied them to the station.

Petitioner was not questioned more than a few minutes in the police station before being formally arrested and charged. During that interval he gave information which indicated only that he had met the deceased at a bowling alley, but at this time he denied having ever been in her apartment or having any close association with her.

If custodial interrogation could be said to have begun at that point, it was almost simultaneously that the police learned that the fingerprints of the accused had been found in the victim’s apartment. He was thereupon arrested and given Miranda warnings.

We are of the opinion that the evidence supports the conclusions of the courts below that the investigation in this case did not shift from general to custodial until petitioner was actually arrested and given Miranda warnings. Even if a contrary conclusion could be sustained, petitioners subsequent confessions would not necessarily be tainted and rendered inadmissible under the circumstances shown here. If anything had occurred which might have “let the cat out of the bag” prior to the time when petitioner was formally arrested, it was the discovery of the pawn ticket in his possession, not the later interrogation and exculpatory information which he had given. The pawn ticket itself, however, as we have already noted, did not contain petitioner’s current address nor did it contain any information suggesting that the items pawned belonged to the decedent.

After carefully considering the assignments of error, we are of the opinion that the oral and written statements given to the police by petitioner were not the result of improper detention, unlawful arrest or improper custodial interrogation. The assignments of error are overruled, and the judgment of the Court of Criminal Appeals is affirmed at the cost of petitioner.

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

      . At the conclusion of the evidence petitioner did take the stand for the purpose of stating that his decision not to testify was voluntary.

      . See also Vandergriff v. State, 219 Tenn. 302, 409 S.W.2d 370 (1966); Underwood v. State, 465 S.W.2d 884 (Tenn.Cr.App.1970).

      . See Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); State v. Bohanan, 220 Kan. 121, 551 P.2d 828 (1976); State v. Inman, 350 A.2d 582 (Me.1976).


author: HENRY, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Defendant-Appellant, v. Maurice E. WING, Deceased, by Gladys Faye Wing as Administratrix of the Estate of Maurice E. Wing, Plaintiff-Appellee.
    Supreme Court of Tennessee.
    Aug. 6, 1979.

      James L. Kirby, Memphis, for defendant-appellant.
    Walter Buford, Memphis, for plaintiff-ap-pellee.
   OPINION

HENRY, Justice.

Defendant Travelers Insurance Company appeals a worker’s compensation award for 20% disability benefits to Gladys Wing, as Administratrix of the estate of Maurice Wing, for a work-related injury suffered by her deceased husband. After instituting the compensation suit, Mr. Wing died from causes unrelated to his compensable injury. The trial court’s award was based upon a settlement agreement reached after Mr. Wing’s death. For the reasons set out below, we reverse.

I.

On June 23,1976, Maurice Wing suffered an injury while working for Town and Country Plumbing. Appellant, Town and Country’s insurance carrier, paid Wing benefits for temporary total disability until April 11,1977. On May 6, 1977, Wing filed a worker’s compensation action seeking benefits for total disability to the body as a whole. Travelers admitted that the injury arose in the scope of Wing’s employment, but denied the manner in which the accident occurred and the extent of the disability.

On June 22,1977, Wing died as a result of causes unrelated to his accidental injury. One month later, Wing’s attorney offered to settle the suit on the basis of 25% disability to the leg. The final paragraph of that letter informed Travelers of Wing’s death as follows:

Mr. Wing left three minor children at his death on June 22, 1977. We make claim for the above on their behalf and feel that this settlement would be in their best interests. .

Bob Wilson, Travelers’ claim adjuster, responded that Travelers’ final offer was benefits on the basis of a 20% disability. Wing’s attorney’s office orally accepted this offer the next day. The notes of that conversation stated that Travelers “will do it on release only.” Two weeks later, on the advice of Travelers’ attorney, Wilson repudiated the settlement agreement on the grounds that Wing’s death had extinguished the claim.

Thereafter, on December 2, 1977 Travelers filed a suggestion of death upon the record pursuant to Rule 25, Tenn.R.Civ.P. After more than 90 days had passed without substitution of parties, Travelers filed a motion to dismiss. On April 21, Gladys Wing filed an answer to the motion to dismiss and a motion to revive the action as Administratrix of her husband’s estate. It appears that although Mrs. Wing asked the attorney to pursue the suit immediately after her husband’s death, she did not employ him as Administratrix until after the motion to dismiss was filed. The trial court granted the motion to revive in an order providing that the cause

be prosecuted in the same plight and condition as before the death of the Plaintiff, Maurice E. Wing.

Gladys Wing thereafter filed a supplemental complaint alleging breach of the settlement agreement. Following trial, in which the parties presented testimony relating solely to the events surrounding the settlement agreement, the trial court ruled that benefits for Wing’s alleged injury had accrued at the time of his death and that Travelers was estopped to deny the 20% settlement agreement reached after notice of Wing’s death.

On appeal, Travelers claims that the trial court erred in failing to dismiss the action because: (1) no substitution of parties was made within ninety days as required by Rule 25; (2) suits for worker’s compensation benefits do not survive to the personal representative of an employee who dies from causes unrelated to the occupational injury; (3) no proof supported the trial court’s finding that Wing had a disability; and (4) the settlement agreement had not been approved by the court as required by T.C.A. § 50-1006.

We agree with appellant’s contention that Wing’s benefits did not survive to his personal representative, and reverse on that basis.

II.

We note initially that although appellee Wing seeks to characterize this suit as a contract action to enforce the settlement agreement, it is in fact an action stemming directly from “the rights and remedies” granted by the worker’s compensation law. Thus, absent a legally enforceable right to benefits under that law, there would be no consideration to support the settlement agreement. Royal Indemnity Co. v. Schmid, 225 Tenn. 610, 474 S.W.2d 647 (1971), relied upon by appellee, presented a different question and therefore has no application to the case at bar.

It is clear that the rights and benefits under our worker’s compensation law do not survive to the personal representative unless the employee’s death is a direct result of the accidental injury. See, e. g., Lenoir Car Works v. Hill, 163 Tenn. 578, 44 S.W.2d 321 (1931). T.C.A. §§ 50-1010 and 50-1013 provide compensation for dependents, but only if the employee dies as a result of a work-related injury.

In Bry-Block Mercantile Co. v. Carson, 154 Tenn. 273, 288 S.W. 726 (1926), the Court first ruled that the right to receive compensation does not survive to the personal representative if the employee died from causes unrelated to the accidental injury:

Reasons given in the cases are that it is the purpose of workmen’s compensation acts to make industry take care of its casualties. To that end compensation is provided for injured workmen in lieu of wages. Wages cease with death, and likewise compensation received in lieu of wages miist cease with death. If the employee die [sic] from natural causes, his representatives have no claim against the employer. If the death results from injuries received in the industry, there are special provisions to take care of the employee’s dependents. It would put an additional burden on the employer, not contemplated by the statutes, to require him to pay either wages or compensation to representatives of an employee who died from natural causes. If an employee had a vested right in compensation, he could will it away, and the employer would be paying this substitute for wages to persons with whom he had no connection. 154 Tenn. at 277-78, 288 S.W. at 728.

This rule subsequently has been applied in Rose v. City of Bristol, 203 Tenn. 629, 315 S.W.2d 237 (1958), and Jones v. Huey, 210 Tenn. 162, 357 S.W.2d 47 (1962).

Thus, Wing’s claim for compensation benefits did not survive to his personal representative. The judgment of the trial court is reversed and the cause is dismissed.

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


text:
    Kenneth O. PATTERSON, Appellant, v. TUCKER STEEL COMPANY, Appellee.
    Supreme Court of Tennessee.
    Aug. 6, 1979.
    Daniel J. Goodman, Knoxville, for appellant.
    John W. Baker, Jr., Knoxville, for appel-lee.
   OPINION

HENRY, Justice.

Appellant Kenneth Patterson filed this worker’s compensation claim alleging that his employment as a welder for appellee Tucker Steel resulted in a disabling lung disease. The trial court, after excluding certain portions of Dr. Haraf’s testimony on behalf of Mr. Patterson, dismissed the action for failure to prove that the lung condition was employment-related. Patterson claims that the court erred in excluding this testimony, which would have justified an award in his favor. We affirm the dismissal of the action.

I.

Mr. Patterson was employed by Tucker Steel on January 25,1972, and worked as a welder from February 19, 1973 until April 10, 1975. He ceased working because of shortness of breath and lack of stamina. Although his doctors state that he could do sedentary work,, Patterson has been employed as a laborer all his life and has not been able to do such work since leaving Tucker Steel. The three physicians that testified by deposition all agreed that Patterson has a chronic lung condition that impairs his ability to work. They differed, however, over whether the condition was caused by his work as a welder or by smoking less than one pack of cigarettes a day for the past twenty-two years.

Dr. Swann, a pulmonary surgeon, who testified on behalf of Patterson, stated that “the only cause I can find for his present problem is his occupational exposure during the course of working as a welder.” Dr. Hudson, a pulmonary specialist testifying on behalf of Tucker Steel, disagreed that Patterson had “welder’s lung” or that his exposure as a welder caused the impairment:

Q. Doctor, do you have an opinion, based upon a reasonable degree of medical certainty, and when I say that I mean more likely than not, as to whether or not Mr. Patterson has welder’s lung? ******
A. Well, when you say welder’s lung, you mean there is the possibility of a shadow cast by iron oxide. I can’t exclude that possibility but I don’t believe he has any significant functional impairment due to his two or three year exposure of welding at Tucker Steel. ******
A. . . .1 think that in all probability his pulmonary disability comes from his years of cigarette smoking.

The testimony excluded by the trial court was given by Dr. Haraf on behalf of Mr. Patterson. Dr. Haraf was qualified as a hematologist and an oncologist, and specifically stated during the deposition that he was not an expert in the area of lung diseases resulting from toxic fumes. His diagnosis, contained in a letter to Mr. Patterson, noted “pulmonary lung scarring of a chronic nature, consistent with chronic lung disease, possibly relating from smoking in addition to possible lung damage from work as a welder.” This letter was introduced into evidence at the outset of Dr. Haraf’s testimony without objection. At trial, the court sustained several objections and struck those portions of Dr. Haraf’s testimony in which he stated that the lung condition “possibly” was related to Patterson’s exposure as a welder.

Appellee Tucker Steel claims that even if the Judge erred in striking the testimony, the error was harmless because Dr. Haraf’s letter, which contained the same analysis, was introduced without objection.

Appellee also relies on other proof as providing material evidence to support the action of the trial court. Evidence was presented indicating that the welding machine Patterson principally used produced no fumes. In addition, Dr. Swann acknowledged a latency period before abnormalities appear on an x-ray, and Dr. Hudson stated that the latency period- was “in almost all cases a minimum of ten years.”

II.

There are a number of Tennessee decisions discussing the degree of medical certainty required to establish a causal connection between a physical impairment and employment conditions. These cases most recently were reviewed in Owens Illinois, Inc. v. Lane, 576 S.W.2d 348 (Tenn.1978), in which Justice Fones stated that:

medical testimony as to the possibility of a causal connection between an accident or subsequent death or impaired physical condition will not support a finding of such relationship. Expressions such as “might have”, “may have” or “could have” are classified as being in the “possibility” category. But, the likelihood or probability of a causal connection has been held sufficient in some jurisdictions, and rejected in others. This category includes such expressions such as “probably”, “likely” and “apt.” The expressions that find general acceptance as sufficient to establish causal connection in most jurisdictions are, “to a reasonable certainty” or “to a reasonable medical certainty.” See Annot., 135 A.L.R. 541 et seg. and cases cited therein, (emphasis in original) 576 S.W.2d at 349-50.

The Court also quoted the following language from P&L Const. Co., Inc. v. Lankford, 559 S.W.2d 793, 794 (Tenn.1978):

In a workmen’s compensation case, a trial judge may properly predicate an award on medical testimony to the effect that a given incident ‘could be’ the cause of the plaintiff’s injury, when he also has before him lay testimony from which it may reasonably be inferred that the incident was in fact the cause of the injury. 576 S.W.2d at 349.

The issue presented in Owens Illinois was whether equivocal medical testimony on the permanency of the employee’s injury would support an award. Thus, the discussion of causal connection cases was included to provide an analogy, as pointed out in the opinion on petition to rehear.

For the most part, the equivocal language used by medical experts has appeared in eases involving the issue of causal connection rather than permanency, and that is the reason those cases were included in the opinion. 576 S.W.2d at 550.

Although the Owens Illinois discussion of causal connection cases was dictum, it accurately reflects the law relating to equivocal medical testimony establishing a causal connection between physical impairment and employment. It is thus apparent that such equivocal medical testimony is admissible in this context. However, whether such statements are sufficient to support a finding of causal connection depends upon whether there is additional material lay testimony supporting the conclusion that the injury was employment related. P&L Constr. Co., Inc. v. Lankford, supra.

•III.

Under the circumstances presented in this case, however, the exclusion of those equivocal portions of Dr. Haraf’s testimony was harmless error. As shown by Dr. Ha-raf’s statements on direct examination, he was not an expert in this area of diagnosis and had little or no familiarity with the condition known as welder’s lung:

A. I am aware of the term welder’s lung from previous training. I have never made that diagnosis before. I am aware that such an entity exists and could be a possible cause of his disease. And this is why I brought it up to him and included that comment in my record as a possible cause for what appears to be in the x-ray changes in his lung. As far as the exact mechanism and things of this nature, I did not have any detailed knowledge of that. Again, reading any recent articles on it within the last four years, I have not.
% * * * ⅜ *
I don’t personally recall ever reading any articles, in reading what is generally referred to as internal medicine textbooks, they refer to such things as exposure to toxic fumes as causing lung damage; and vaguely from my training, I remember the term welder’s lung.
‡ ⅜ ‡ ⅝: j|e ⅜
I am suspect that this is still a valid diagnosis. I don’t know. I am not an expert in this area.

Secondly, the erroneously excluded evidence actually was before the Court in Dr. Haraf’s letter, which was introduced without objection. This letter attributed Patterson’s lung condition possibly to smoking “in addition to possible lung damage from work as a welder.” Finally, there was other material evidence to support the action of the trial court. Dr. Hudson’s diagnosis, as well as testimony concerning the absence of toxic fumes, provides material evidence to support the finding of the trial court. Although Mr. Patterson stated that the Dart welding process produced fumes, this was contradicted by other lay testimony and never proved by an expert.

For these reasons, we hold that the exclusion of the equivocal portions of Dr. Haraf’s testimony was harmless error. The judgment of the trial court is affirmed.

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


author: HENRY, Judge.

text:
    Timothy Allen TRUE, Appellant, v. AMERAIL CORPORATION, Appellee.
    Supreme Court of Tennessee.
    Aug. 6, 1979.

      Bob McD. Green, Johnson City, for appellant.
    James E. Brading, Herndon, Coleman, Brading & McKee, Johnson City, for appel-lee.
   OPINION

HENRY, Judge.

The sole question in this Workmen’s Compensation action is whether a Tennessee resident, employed principally in Tennessee under a contract made in Tennessee, who is injured while working in Virginia, and who accepts benefits under the Virginia Workmen’s Compensation law, is barred from a recovery under Tennessee Law. The Chancellor sustained the employer’s motion for a summary judgment. We affirm.

I.

Plaintiff is a resident of Washington County, Tennessee, where Amerail maintains offices and where the contract of employment was made. He was employed principally in Tennessee; however, he was injured on a job site in Clintwood, Dicken-son County, Virginia.

Plaintiff sued for workmen’s compensation benefits in the Chancery Court of Washington County, Tennessee on December 9, 1976, demanding judgment “for the benefits due him under the Workmen’s Compensation Laws of the State of Tennessee.” While the complaint is somewhat meager, we treat it as a suit for full compensation benefits, including medical expenses, based upon injury to the shoulder and back.

Amerail’s principal defense was that plaintiff had the choice of proceeding under Tennessee or Virginia law; that he elected to proceed under the Virginia law; and had received payment from Amerail’s insurance carrier from September 13, 1976 (the approximate date of the injury) through December 5, 1976. Thus, Amerail says that plaintiff has elected his remedy under the laws of the Commonwealth of Virginia and is now estopped to proceed under the Workmen’s Compensation Laws of Tennessee.

Subsequently Amerail filed its motion for a summary judgment under Rule 56, Tenn. R.Civ.P. relying upon its answer, the exhibits thereto, and the affidavit of the claims manager of its insurance carrier, Hartford Accident and Indemnity Company.

This motion asserts (1) that plaintiff “instituted a proceeding and procured a recovery of compensation in the Commonwealth of Virginia in which his injury occurred and that such action was a clear renunciation of the contract of employment made in the State of Tennessee,” and (2) that the award by the Virginia Industrial Commission is entitled to full faith and credit and is a bar to plaintiff’s right to prosecute the instant suit.

The record shows that at an undisclosed date in December 1976, the plaintiff executed a Memorandum of Agreement as to Payment of Compensation on a form prescribed by the Industrial Commission of Virginia. This document recites that the parties “have reached an agreement in regard to compensation for the injury,” under the terms of which plaintiff shall receive weekly compensation, in a stated amount, payable during the period of incapacity from and including the 20th day of September 1976 “until terminated in accordance with the provisions of the Workmen’s Compensation Law of the State of Virginia.” This memorandum was filed in December 1976.

A copy of an “Award — Approval of Agreement” issued by the Industrial Commission of Virginia on December 14, 1976 appears in the record. It bears no signature but appears on an official form. In this document the Commission approved the Memorandum of Agreement and entered an award in accordance therewith. It bears the notation that “before closing the file, we will require a final medical report.”

Additionally, there appears on an official form, an undated Agreed Statement of Fact, signed by the plaintiff, but not executed by the insurance carrier, in which it is agreed that plaintiff was able to return to work on December 6, 1976. It will be noted that the instant suit was filed three (3) days later. It is specifically recited that the termination on December 6,1976 is “subject to approval by the Industrial Commission.” It is further provided that “[t]he employee may reopen the claim pursuant to § 65.1-99. SEE NOTE BELOW.” The note reads:

The signing of the above agreement is not a requirement for payment. This agreement is neither a receipt for money nor a release of claim. Should further disability result, the claim can be reopened by written application received by the Industrial Commission within twelve months from the last date for which compensation was paid .

From the affidavit of the Claims Manager it appears that plaintiff was paid at the rate of $86.33 per week, beginning September 13, 1976 through December 5, 1976, making a total of $1,035.93.

Plaintiff filed no countervailing affidavits as permitted by Rule 56.03, Tenn.R. Civ.P., and as required by Rule 56.05. Instead he elected to rest upon the allegations of his abbreviated complaint. Thus, the matter is before the Court on a record built by Amerail.

Three significant facts emerge, viz:

1. Plaintiff invoked the Workmen’s Compensation Law of Virginia.
2. He received benefits thereunder.
3. The plaintiff’s Virginia claim was pending final determination before the Industrial Commission of Virginia on the date the instant suit was filed.

The Chancellor sustained the motion for summary judgment in toto.

II.

The Tennessee Workmen’s Compensation Law has extraterritorial application, providing coverage for injuries sustained while working outside the boundaries of this State if they are such as would be compen-sable if sustained within the State, providing the employment was localized within the State, or the contract of hire was made within the State. § 50-917, T.C.A.

The precise question we are called upon to answer is whether the application for and acceptance of benefits under the Virginia Workmen’s Compensation Law bars the instant suit.

A discussion of this issue must start with Tidwell v. Boiler & Tank Co., 163 Tenn. 420, 43 S.W.2d 221 (1931). Plaintiff’s deceased husband was killed while working in Ohio pursuant to an assignment by his employer, a Chattanooga based activity. His employment was principally in Tennessee.

After her husband’s death, plaintiff began proceedings in Ohio under the Workmen’s Compensation Law of that state and obtained death benefits in the sum of $4,800.64, payable at the rate of $11.54 per week for 416 weeks. At the time of the trial she had received $1,927.18.

The sole defense to her Tennessee suit was the proceeding in Ohio.

Mr. Chief Justice Green, speaking for the Court, declared:

[W]hen petitioner instituted the proceedings in Ohio to recover compensation for her husband’s death, this was a clear renunciation or disaffirmance of the contract. 163 Tenn. at 424, 43 S.W.2d at 223.

After noting the general rule of law that “[t]he obligations of the contract cannot be repudiated in one suit and benefits of that contract be claimed in a subsequent suit”, the Court said:

There can be no question but that the election thus made was irrevocable because petitioner has taken the benefit of the Ohio suit and defendant will doubtless take the detriment of that suit. 163 Tenn. at 424, 43 S.W.2d at 223.

The case of Thomas v. Transport Ins. Co., 532 S.W.2d 263 (Tenn.1976) is relevant to the issue. There the issue was whether the workmen’s compensation claim was governed by Tennessee or Arkansas law. The accident occurred at the employer’s place of business in Memphis. While there were significant factual issues precluding a summary judgment and necessitating a remand, sufficient findings appear to develop the analogy to the case at bar. Plaintiff contended that the insurance carrier had wrongfully commenced payments under the Workmen’s Compensation Law of Arkansas. The defendants, on the other hand, asserted that plaintiff had made a binding agreement to receive compensation under the Arkansas law by accepting payments under that law for more than one year.

• Pertinent to the present case is the following language,

[I]f the employee has taken any affirmative action to seek a recovery under the law of that state, or has voluntarily, deliberately and with full knowledge of his options, accepted benefits under Arkansas law, he may well be precluded by the election and may not be entitled to proceed in Tennessee. (Citing Tidwell). On the other hand, if the employee, while seriously injured and disabled, was simply sent checks by a workmen’s compensation carrier, with no information as to the nature of the benefits being received, he may not be so precluded. 532 S.W.2d at 267.

We indicated by this language that under an appropriate factual situation consideration would be given to a liberalization of the Tidwell rule. We did not, however, give any indication that we would depart from Tidwell in any case where the injured workman had made a binding election to accept the benefits of another state by affirmatively seeking those benefits. This is precisely the situation presented by the instant case.

This is not a case where an injured workman passively accepted benefits. Moreover, we cannot presume from a silent record that plaintiff did not have full knowledge of all his options. This is the type of proof that should have been presented by opposing affidavits to the motion for summary judgment.

Counsel for the appellant earnestly and ably has sought to persuade the Court that it should recede from Tidwell. We are cited to 4 Larson, Workmen’s Compensation Law § 85.00 and to Restatement (Second) of Conflict of Laws § 182 (1969). On the basis of these authorities we are implored to hold that successive awards 'may be made in different states, deducting the amount of the first award from the second. Courts of last resort in various sister states have adopted this approach.

These authorities are appealing; however, we are not persuaded to sanction a course of conduct that would result in what is essentially a single cause of action being made the subject of lawsuits in two states, absent compelling considerations such as those enumerated in Thomas, supra. We are persuaded that the Tidwell rule represents a fair approach in those cases wherein the injured workman has made a binding election as indicated by affirmatively seeking and accepting benefits in another state.

While the Trial Judge did not specifically sustain so much of the motion for summary judgment as relied upon the full faith and credit clause, lest there be any confusion about the matter, we hold that the full faith and credit clause does not preclude the Tennessee suit. Industrial Commission of Wisconsin v. McCartin, 330 U.S. 622, 67 S.Ct. 886, 91 L.Ed. 1140, 169 A.L.R. 1179 (1947).

Affirmed.

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

      . Plaintiffs present counsel of record did not file the complaint.

      . This agreement was not executed by the insurance carrier.

      . This has reference to the employment contract which, as a matter of law, incorporates the Workmen’s Compensation Law.

      . The employer’s principal place of business apparently was in Arkansas.


author: DROWOTA, Judge. DROWOTA, Judge.

text:
    MEMPHIS MOBILE TELEPHONE, INC., Plaintiff-Appellant, v. Honorable Z. D. ATKINS, Honorable Robert N. Clement, Honorable Frank D. Cochran, Constituting the Tennessee Public Service Commission, Mahaffee Message Relay, Inc., and Airsignal International, Inc.
    Court of Appeals of Tennessee, Middle Section.
    March 5, 1979.
    Rehearing Denied April 6, 1979.
    Certiorari Denied by Supreme Court Aug. 13, 1979.

      John M. Ballenger, Major, Sage & King, Alexandria, Va., Hammond Fowler, Rock-wood, for plaintiff-appellant.
    F. P. Cribbs, Jr., Houston, Tex., Phil M. Canale, Jr., and Edward A. Kizer, Memphis, for appellee Mahaffee Message Relay, Inc.
    William M. Luck, Memphis, and Patrick J. O’Shea, Elmhurst, N. Y., for appellee Airsignal International, Inc.
    Eugene W. Ward, Gen. Counsel, and Thomas Eldridge, Nashville, for Tenn. Pub. Serv. Commission.
   OPINION

DROWOTA, Judge.

Appellant, Memphis Mobile Telephone, Inc., appeals from the decree of the Chancery Court of Davidson County dismissing its Petition for Review and affirming the action of the Public Service Commission in rescinding the certificate of public convenience and necessity which had previously been issued to appellant.

The threshold question for determination by this Court is whether the record before us is adequate for appellate review. Appel-lees aver that the record is inadequate since it fails to contain the transcript of the proceedings before the Public Service Commission.

On January 16, 1979, appellee, Mahaffee Message Relay, Inc., filed its motion to dismiss Memphis Mobile Telephone’s appeal. Appellee avers that appellant failed to file a bill of exceptions and that the very nature of appellant’s three assignments of error requires a review of the transcript before the Commission. On January 22, the date set for oral argument, appellee renewed its motion to dismiss. Appellant failed to appear, however it did file a reply to appel-lee’s motion to dismiss and later on February 2 filed a “first supplement” and on February 23, over a month after oral arguments, filed a “motion to compel” directed at the Public Service Commission.

Appellant states in its “motion to compel” that the nature of its appeal is such that an appropriate review of the Commission’s decision cannot be obtained without the entire record being before this Court. However, appellant takes the position that no bill of exceptions is necessary and that under T.C.A. § 4-523(d) of the Administrative Procedures Act, the Commission is required to transmit the record to this Court, thus the motion to compel. T.C.A. § 4-523(d) does state that “the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review.” The reviewing court referred to in this section is the trial court and has no application to the Court of Appeals.

Appellant also apparently relies upon T.C.A. § 4-524 as authority for no longer requiring a bill of exceptions and placing the burden on the Commission and the Clerk of the Chancery Court to assemble and transmit the transcript of the proceedings before the Commission. T.C.A. § 4-524 captioned “Appeals to Court of Appeals” states that:

An aggrieved party may obtain a review of any final judgment of the chancery court under §§ 4-507—4-527 by appeal to the Court of Appeals of Tennessee as in chancery cases. The record certified to the chancery court by the agency and the record in the court shall constitute the record in an appeal. Evidence taken in court pursuant to subsection (g) of § 4-523 shall become a part of the record upon authentication thereof by the chancellor. (emphasis added)

The above language does not indicate to us that the burden is upon the agency to get a proper record for the Court of Appeals. Once the agency complies with T.C.A. § 4—523(d) and transmits the record to the reviewing (trial) court it has no further duties with respect to the record. It is well established that the appellant has the sole duty to prepare and present the record in its proper form.

Appellant avers that a bill of exceptions is not required to be filed in an appeal of this nature, that the Administrative Procedures Act supersedes the prior requirement that a bill of exceptions be filed, and that the Act supersedes the holding of the Supreme Court in Lindsey v. Fowler, 516 S.W.2d 88 (Tenn.1974), requiring a bill of exceptions.

We do not feel that the Administrative Procedures Act has in any way overruled Lindsey v. Fowler. Appellant in this cause is proceeding upon the assumption that the record of the proceedings before the Commission would be transmitted to this Court as part of the technical record. In Lindsey v. Fowler the Chancellor refused to sign the bill of exceptions because it was not timely filed, however the clerk transmitted to the Supreme Court the conventional transcript and also a large envelope which contained a label “Transcript from the Tennessee Public Service Commission.” Inside the envelope were a two (2) volume transcript and thirty-three (33) documents, certified collectively by the Public Service Commission as a transcript of the proceedings before the Commission. Each document and the transcripts were marked “Filed” by the Deputy Clerk and Master. Appellant argued in Lindsey v. Fowler, as appellant argues in this cause, that the transcript of the proceedings before the Commission was filed in the Chancery Court and thus comes to the appellate court as part of the technical record. In Lindsey v. Fowler the Court held that the transcript before the Commission can come before the appellate courts in one of two ways, it “may either be made a part of the bill of exceptions, or, in proper cases, converted into a bill of exceptions by the simple expedient of having the trial judge sign a directing order that the original transcript be sent up as a part of the record and reciting affirmatively that such transcript contains all the evidence heard in the lower court. In either event the transcript must be properly authenticated by the Trial Judge.” 516 S.W.2d at 91.

The obvious purpose of the above procedural requirements is to afford the appellate courts reasonable assurance of the integrity of the record to be reviewed. The appellant was in error in assuming that the transcript before the Commission would be sent to this Court as part of the technical record. Appellant is before this Court on the technical record alone, which contains only the pleadings and orders of the trial court.

Appellant infers that the Chancellor may not have had the entire transcript to review. If appellant had any question concerning the transcript of the proceedings before the Commission and whether the entire record was before the Chancellor, the time to raise such objection was in the Chancery Court, not the appellate court.

Appellant’s three assignments of error require a review by this Court of the evidence submitted to the Commission and without a transcript of those proceedings it must be presumed that every fact admissible under the pleadings was found or should have been found favorable to appellees. Wilson v. Hafley, 189 Tenn. 598, 605, 226 S.W.2d 308 (1950). The assignments of error must therefore be overruled for lack of an adequate supporting record, and the judgment of the Chancellor is affirmed. The costs of this appeal are taxed to appellant.

Affirmed.

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

OPINION ON PETITION FOR REHEARING

DROWOTA, Judge.

Appellant, Memphis Mobile Telephone, Inc., by counsel, has filed a petition for rehearing which presents no new issues, nor points to any material matters or authorities overlooked by this Court in our original opinion filed March 5, 1979. To the con-, trary, the petition essentially reargues the same propositions heretofore fully considered by this Court.

We will however respond to certain arguments raised in appellant’s petition because counsel for appellant obviously fails to understand the significance of, the effect of, and our reliance on Lindsey v. Fowler, 516 S.W.2d 88 (Tenn.1974).

We must first point out that we were aware that appellant was submitting its case to this Court on briefs. Appellant was not required to be present on the date set for oral argument, however appellant cannot cancel oral argument. Appellees were entitled to appear and present oral arguments, which they did. The reason we used the words “appellant failed to appear” is that had counsel appeared for oral argument to respond to appellees’ motion to dismiss he would have readily seen, at that time, that this Court had real concerns over the adequacy of the record presented for our review.

Appellant was not prejudiced for not arguing its case orally. However, this was a case where, in light of appellees’ motion to dismiss, it would have been in appellant’s best interest to appear and answer certain questions which the Court had concerning the state of the record.

Appellant states in its petition that “the review by the Chancery Court was confined wholly to the record developed before the Tennessee Public Service Commission.” (emphasis added).

Appellant also states “at the time appellant appeared before the Chancery Court, appellant was under a good faith belief that the Tennessee Public Service Commission had complied with its statutory obligation and had, in fact, filed the entire record with the Chancery Court. Only subsequently did appellant learn that the Tennessee Public Service Commission failed to carry out its express statutory obligation.”

Appellant then states that “immediately after appellant learned of the failure of the Tennessee Public Service Commission to comply with the applicable statutory requirements, appellant corresponded with the Tennessee Public Service Commission on January 19, 1979 and January 31, 1979.” The record was filed in this Court on November 14, 1978. Oral arguments were scheduled and heard in this Court on January 22, 1979, at which time the case was taken under advisement. On February 23 appellants filed a “Motion to Compel the Tennessee Public Service Commission to Comply with Section 4-523(d).”

It thus appears that the Chancellor had only a portion of the record developed before the Tennessee Public Service Commission. It is difficult to understand how appellant can now ask this Court to compel the PSC to forward the record (or portions of the record) of the proceeding under review to the Chancery Court and for the Clerk of that court to transmit the record (or portions of the record) to this Court for our review of the Chancellor’s decision, when the Chancellor obviously would not have had the record (or portions of the record) to consider in making his decision. Appellant asks this Court to reverse the Chancellor. We could not reverse the Chancellor based on a record which the Chancellor did not have before him.

Appellant’s “Motion to Compel” should have been filed in the Chancery Court prior to the final hearing in that court, and if the entire record was not before the Chancellor, he could at that point in time rectify the situation. But for this Court to have portions of the record, not considered by the Chancellor, sent to this Court for our review would be erroneous.

It should be clear to appellant that unless the record of the proceedings before the PSC were authenticated by the Chancellor, we would not be in a position to know what he did or did not consider in making his decision. The state of the record in this case gives ample reason for the requirement in Lindsey v. Fowler for authentication of the proceedings before the PSC (the bill of exceptions) by the Chancellor.

The reason we emphasized in our opinion the word authentication as found in T.C.A. § 4-524, was to show that when evidence is taken in court pursuant to § 4r-523(g) a bill of exceptions is necessary in order that we might know what the Chancellor considered. It cannot be successfully argued that we should not have the record of the proceedings before the PSC authenticated. In this case it is obvious from reading the Chancellor’s six page memorandum opinion that he did in fact have a record or portions of a record before him for review. Without his authentication of the record (or portions of the record) which he considered we would be unable to have “assurance of the integrity of the record to be reviewed.”

Appellant states in its petition that “the problems which have arisen result from the failure of the Tennessee Public Service Commission to comply with its statutory obligation to assemble the record upon appeal and transmit the same to the Chancery Court.” This may be true, however appellant is the creator of its own misfortune, for if the record was incomplete in the Chancery Court it should have been corrected in that court before the Chancellor heard this case and before he filed his memorandum opinion. Appellant was not only unaware of the record filed in the Chancery Court by the PSC, but appellant was likewise unaware of what record (or portions of the record) were filed in this Court on November 14,1978, when appellant was advised by the Clerk of this Court that the record of the Chancery Court had been filed in the Court of Appeals. The only record filed in this Court on November 14 was the technical record which contains the pleadings in the Chancery Court. We have no authenticated or unauthenticated record (or portions of the record) of the proceedings before the PSC before us.

Appellant in its petition appears to again proceed upon the incorrect assumption that the proceedings before the PSC can come to this Court as part of the technical record and be considered by this Court. In Lind sey v. Fowler the Clerk and Master transmitted to the Supreme Court as part of the technical record the transcript of the proceedings before the PSC which had been filed in his court. As we stated in our opinion, “[i]n Lindsey v. Fowler the Court held that the transcript before the Commission can come before the appellate courts in one of two ways, it ‘may either be made a part of the bill of exceptions, or, in proper cases, converted into a bill of exceptions by the simple expedient of having the trial judge sign a directing order that the original transcript be sent up as a part of the record and reciting affirmatively that such transcript contains all the evidence heard in the lower court. In either event the transcript must be properly authenticated by the Trial Judge.’ 516 S.W.2d at 91.”

We are satisfied with our previous disposition of this appeal. The petition to rehear is therefore denied at the cost of appellant.

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