author: FONES, Justice. FONES, Justice.

text:
    Elliot Crawford STREET, Administrator of the Estate of Doris C. Street, Deceased, Petitioner, v. David CALVERT and Joe Calvert, Respondents.
    Supreme Court of Tennessee.
    July 6, 1976.
    Rehearing Denied Sept. 27, 1976.

      Jack S. Magids, Krivcher & Magids, Memphis, for petitioner.
    John J. Thomason, Thomason, Crawford & Hendrix, Robert V. Redding, Memphis, for respondents.
   OPINION

FONES, Justice.

We granted the writ of certiorari in this case and expressly limited consideration to the following: (1) the effect of the failure of the trial judge to instruct on the doctrines of discovered peril and last clear chance; (2) is the posture of this case such that this Court may properly consider the adoption of a rule of comparative negligence; (3) the propriety of adopting such a rule; and (4) the type of comparative negligence which should be adopted.

I.

Doris C. Street was walking across Hale Road to her mailbox on the opposite side from her residence when she was struck by an automobile driven by David Calvert and owned by his father Joe Calvert. She sustained serious injuries that resulted in her death more than seven (7) months after the accident, during which time she was unable to relate what occurred.

A jury verdict for defendants was approved by the trial judge and the Court of Appeals affirmed.

The only error we find was the failure of the trial judge to give an instruction to the jury on the doctrine of last clear chance, an exception to the contributory negligence rule, recognized in various forms by the courts of Tennessee since before the turn of the century. In our opinion the proof most favorable to plaintiff’s theory embraced all of the essential elements of discovered peril. The probative value of that proof was a proper question for the jury.

II.

The essential evidence necessary to relate for our consideration of the case follows.

Mrs. Street’s house was on the south side and her mailbox was on the north side of Hale Road, a street twenty-two (22) feet wide with no sidewalks, curbs or gutters. Approaching from the east, visibility was unobstructed for at least six hundred (600) feet from the accident scene; and although it was raining lightly at the time of the accident, visibility was not affected by the precipitation. Mrs. Street returned from a quilting party at church about 3:15 p. m. in the automobile of Mrs. Maude Johnson, who testified that she stopped in front of the Street residence and observed Mrs. Street exit the car and start up the steps toward her front door. Mrs. Johnson then drove away from the Street residence in the eastbound lane of Hale Road and did not observe any cars coming from the east. Another witness testified that she saw Mrs. Johnson depart two (2) or three (3) minutes before the accident occurred. It was virtually undisputed that Mrs. Street was only one (1) or two (2) feet from the north edge of the pavement, directly in front of her mailbox, when she was struck by the defendants’ vehicle at the right front headlight.

Two witnesses testified that there was a single skid mark, one hundred sixty (160) feet in total length, beginning five (5) to eight (8) feet west of a neighbors mailbox, running in a straight line, but with an angle to the right, so that it went off the north edge of the pavement beyond Mrs. Street’s mailbox. On the day of the accident the distance was estimated, by the width of the one hundred (100) foot lots on Hale, to be one hundred fifty-five (155) to one hundred sixty (160) feet. Months later, after the mark was not visible, Mr. Whitson and his son measured the distance and recorded same on paper, exhibit fifteen (15) in the record. According to that measurement, the skid mark began eighty-one (81) feet east of Mrs. Street’s mailbox and left the north edge of the pavement seventy-eight (78) feet west of her mailbox. At the beginning point the skid mark was shown to be three (3) feet from the north edge of the pavement. Its northward angle had reduced in distance from the north edge of the pavement to fifteen (15) inches as it passed the mailbox where Mrs. Street was struck.

There was testimony that a few days after the accident, David Calvert said that he saw Mrs. Street “on top of the steps,” or “on the walk.” While there was no sidewalk paralleling Hale Road, a paved walk with three steps near the edge of the street extended from the street to the front of the Street residence.

Defendants denied that any skid marks were there the next day, and denied that David made any statement about seeing Mrs. Street on the walk. It was not disputed that at least one of the right wheels on the Calvert vehicle was off the north side of the pavement when the car came to rest.

Calvert testified that he was driving his father’s vehicle thirty (30) miles per hour in a thirty-five (35) mile zone because the roads were slick; that he first saw Mrs. Street when she stepped “from behind the car to the middle of the road” heading toward her mailbox. At that time he testified he was approximately ninety (90) feet away and that he attempted to stop his car; that all four wheels “stopped turning,” or “locked,” and when he attempted to steer his car to the left to avoid Mrs. Street, the car did not react but continued in a straight line; that he did not blow the horn because he was in the process of turning left to pass behind her; that had his car turned he would have missed Mrs. Street and the car parked in front of her house. He testified, at another stage of the trial, that when Mrs. Street reached the center of Hale Road he was ninety (90) feet away. He said that she had her right hand on top of her head and at all times was looking straight ahead and walking toward her mailbox.

III.

The origin of the last clear chance doctrine is traced to Davies v. Mann, 10 M & W 546, 152 Eng.Rep. 588 (1842). In the intervening years it has been the most frequently applied modification of the strict rule of contributory negligence, but its application has been fraught with confusion arising from the widely varying statements of the essential elements of the rule and the search for a lucid rationale.

In Tennessee, Todd v. Railroad, 135 Tenn. 92, 185 S.W. 62 (1915), has made a substantial contribution to the conflicting decisions that now exist in our reported cases.

Todd was struck by a railroad car at a public crossing. Carrying a bag of corn he walked to the highway crossing and found the way obstructed by defendant’s cars, engaged in switching operations. After some delay he crossed over the first, second and third tracks, but put his sack of corn down on the third track and took a position on the end of the cross ties on the third track to await clearance on the fourth track. He was engaged in conversation with another man looking continuously south for twenty (20) minutes. His attention was apparently further riveted to the south, by another freight train that approached from that direction on the second track, as he continued to wait. Thereupon, several cars were backed from the north down the third track and the rear car struck Todd on the right hip and knocked him to the ground causing him injury. He did not see or hear the train approaching. There was no brakeman, and there was no evidence that the enginemen saw Todd.

Thus, the court was presented with an inattentive plaintiff and a defendant in an undiscovered, but in the exercise of reasonable care, discoverable situation.

The trial judge directed a verdict for defendant railroad; the Court of Appeals held that the case should have been submitted to the jury. The Supreme Court agreed with the trial judge and dismissed the suit.

The court held that Todd was guilty of gross negligence as a matter of law, with the result that Todd could only avail himself of the “discovered peril” version of last clear chance.

“He was guilty of gross negligence; he knew that he could not cross over and continue his journey as a traveler on the highway; he stood in a dangerous place with his back turned towards a source of danger for an unreasonable time and disregarded the increase of dangers about him. The above principle is itself subject to a modification likewise grafted by the law for reasons of public policy. A defendant who is grossly negligent and reckless to the point of acting in disregard of the rights of others or of imputed willfulness cannot avail himself of a plea of plaintiff’s contributory negligence; nor may a plaintiff who is acting so recklessly as to be in utter disregard of his own safety to be heard to invoke the application of the principle above discussed. The law will refuse to impose on the defendant in his behalf any other than the doctrine of actually discovered peril. His negligence is considered to be proximate in the chain of causation.
A number of cases reach this result, whether based on this reasoning or not.” 135 Tenn. at 108, 109, 185 S.W. at 66.

Earlier in the opinion the Court cited with approval Railway v. Haynes, 112 Tenn. 712, 81 S.W. 374 (1904) which may be said to support a version of the doctrine of last clear chance now generally referred to as discoverable peril. The Court’s comment was as follows:

“Quite as common and yet a more apt illustration is that of a motorman of a street car bound to vigilance with regard to the safety of those travelers who are making use of the public street on which his car is operated, and in such case this court has held that actual discovery of plaintiff’s peril is not necessary to convict the defendant company of negligence, but it is bound by what its motorman could have discovered in the exercise of ordinary care. Railway v. Haynes, 112 Tenn. 736, 81 S.W. 374. And see, generally, 2 Nellis on Street Railways (2d Ed.) section 462.” 135 Tenn. at 107, 108, 185 S.W. at 65.

In our opinion the holding of Todd is that Tennessee recognizes discovered peril and discoverable peril at least where defendant is engaged in activity hazardous to the public; that if the plaintiff is guilty of gross negligence as a matter of law he can only avail himself of discovered peril.

In addition to the above quotes, the opinion in Todd contains an exhaustive analysis on the law of contributory negligence and remote contributory negligence in England and the United States, and a number of ambiguous comments thereon. That portion of the opinion which we regard as dicta has been used as authority in a number of subsequent Tennessee cases to reject application of the doctrine of last clear chance by finding, as a matter of law, that plaintiff’s negligence continued up to the moment of the accident and was a proximate cause thereof. This is merely another way of saying that the plaintiff’s theory that the last clear chance doctrine applies is rejected and all that remains is application of the basic rule of contributory negligence.

Subsequent cases have also referred to Haynes and Todd as limiting discoverable peril to situations involving a business or operation hazardous to the public such as railroads.

But in Hodge v. Hamilton, 155 Tenn. 403, 293 S.W. 752 (1927), this court clearly held the doctrine of discovered peril applicable to an automobile-pedestrian accident. Hodge was walking south on the west side of a paved road occupying one-fourth thereof when an automobile coming from the opposite direction struck him. The driver of the automobile had available a space of twelve (12) feet in which to pass the pedestrian. There was proof that Hodge was walking with his head down; that the automobile made little noise; and that the driver did not sound the horn or make any effort to warn Hodge of the approach of the automobile.

The Supreme Court stated that in view of the foregoing evidence the trial court should have charged the jury,

“. . . that, if they found that the deceased was guilty of negligence, but further found that the defendant had actual knowledge of the danger or peril of deceased, and could have avoided the accident, by the exercise of ordinary care, and did not do so, plaintiff would be entitled to recover.” 155 Tenn. at 409, 293 S.W. at 754.

In Harbor et al. v. Wallace, 31 Tenn.App. 1, 211 S.W.2d 172 (1946), the Court of Appeals Western Section, after holding that the doctrine of last clear chance did not apply, stated the doctrine as follows:

“This doctrine is that even though the plaintiff was negligent, yet, if the defendant after discovering her peril, or by the exercise of ordinary care should have discovered it, could have avoided the consequence of such negligence by the exercise of ordinary care and failed to do so, the defendant is liable.” (Emphasis added) 211 S.W.2d at 175.

However, in Hadley v. Morris, 35 Tenn. App. 534, 249 S.W.2d 295 (1951), that section of the Court of Appeals appears to have interpreted Todd v. Railroad, supra, as restricting the application of the last clear chance doctrine to discovered peril. Therein it was noted that the doctrine of discoverable peril would be available where defendant was engaged in a business hazardous to the public, such as railroads, electric power companies and others, if operating dangerous instrumentalities.

In Smith v. Burks, 43 Tenn.App. 32, 305 S.W.2d 748 (1957), the doctrine of last clear chance was stated under circumstances indicating the court felt it to be limited to discovered peril.

In Hale v. Rayburn, 37 Tenn.App. 413, 264 S.W.2d 230 (1953), Court of Appeals Eastern Section, the last clear chance doctrine was stated so as to include discoverable peril, citing Harbor et al. v. Wallace, supra. Defendant had testified that he saw plaintiff’s decedent just as she stepped from behind a truck and was then in the middle of the pavement approximately seventy-five (75) to ninety (90) feet away, looking straight ahead in the direction she was going. Defendant assigned as error the charge of the trial court stating the last clear chance doctrine to be that even though the plaintiff was negligent if defendant discovered her peril or by the exercise of ordinary care should have discovered it, and failed to do so, defendant would be liable. It was the contention of defendant that the doctrine of last clear chance did not come into play until defendant actually discovered the peril and thereafter had an opportunity to act. The Court of Appeals rejected limitation of the doctrine to discovered peril relying upon Harbor et al. v. Wallace, supra.

In Vaughn v. City of Alcoa, 194 Tenn. 449, 251 S.W.2d 304 (1952), plaintiffs declaration alleged several theories of tort liability, one of which was the last clear chance doctrine. The trial judge sustained a demurrer to the declaration. The Supreme Court, Mr. Justice Burnett writing, affirmed; and in treating that portion of the declaration alleging the city’s liability under the last clear chance doctrine, commented as follows:

“This doctrine is an arbitrary exception to the law barring recovery for contributory negligence of the plaintiff based upon the theory that the defendant is negligent in not extricating the plaintiff from his place of danger after it is discovered or should have been discovered, notwithstanding the fact that the plaintiff was guilty of contributory negligence in placing himself in danger. Probably the first reported case on the subject, and one that all of us studied in law school is the English case of Davies v. Mann, 10 M & W, 546, 549, 152 Reprint 588,19 ERC 190. This doctrine has been enunciated under a proper state of facts at various times in this State. The doctrine though can have no application in the case now before us because liability of the City is denied on the ground that the City cannot be held for negligence of its officers in the operation of a governmental function.” 194 Tenn. at 456, 251 S.W.2d at 307.

No reported opinion of the Supreme Court has dealt with the doctrine since 1952.

In an excellent article in 41 Tenn.L.Rev. 423 the authors, commenting on Tennessee case law as it existed up to 1970 said:

“The status of the law in Tennessee on last clear chance is impossible to ascertain from the cases. Every conceivable position has some Tennessee authority to support it. There have for some time been two lines of authority as to whether the defendant must have discovered and appreciated the plaintiff’s predicament in order for the exception to apply. One line of cases holds that for the exception to apply defendant’s knowledge must be proved; another indicates that the exception can exist if the defendant negligently failed to discover a helpless plaintiff. There has been no real cross-recognition between the two lines, and they have existed independently, each not internally contradicted, and each available for possible application by a court as it sees fit. Similarly, there are two lines of authority concerning the propriety of allowing the doctrine to be invoked by a plaintiff who was merely inattentive and unaware of his danger, as distinguished from one who had become helpless and unable to extricate himself. 41 Tenn.L.Rev. at 428.

Since 1970 two significant cases have been authored by Judge Matherne writing for the Western Section of the Court of Appeals, Gardner’s Mason. Contrs., Inc. v. St. Louis-San F. Ry. Co., 63 Tenn.App. 288, 470 S.W.2d 945 (1971) and Smith v. Craig, 484 S.W.2d 549 (Tenn.App.1972).

In Gardner the doctrine of discoverable peril as stated by Mr. Justice Burnett in Vaughn is quoted. Thereafter, responding to defendant’s contention that the doctrine is not available because the plaintiff was guilty of gross and willful negligence, relying upon Todd and other cases, the Court of Appeals said:

“In this connection we deem it important to point out in no case can the plaintiff rely upon the doctrine of last clear chance where the plaintiff’s negligence continues and is concurrent with the negligence of the defendant as a causal factor up to the time of the event which causes harm. It matters not whether the plaintiff is guilty of simple negligence or gross negligence, if that negligence is continuing to the event the doctrine cannot be applied as against the defendant. On the other hand we hold it matters not whether the plaintiff’s negligence be gross or simple, if that negligence is spent, and does not continue as a causal factor, the doctrine of last clear chance may be asserted against the defendant if it is otherwise applicable.” 470 S.W.2d at 948, 949.

We have been unable to find the source authority for determining the applicability of the doctrine in terms of whether plaintiff’s negligence is continuing or is spent Perhaps it was intended as an explanation of the distinction between an inattentive plaintiff and a helpless plaintiff, with the result that an inattentive plaintiff is denied the use of any last clear chance relief, discoverable or discovered, because of “continuing” negligence.

In Smith v. Craig, supra, the Court of Appeals, Western Section, undertakes a rather exhaustive treatment of the doctrines under consideration here. The terminology used by the Court was “discovered peril” and “last clear chance.” What is referred to therein as “last clear chance” we have referred to in this opinion as discoverable peril. We have elected, as does the Restatement of the Law of Torts, 2d, and others, to refer to all variations of discovered and discoverable peril as being embraced in the expression, the last clear chance doctrine.

In Smith, “last clear chance” or discoverable peril, and discovered peril were explained as follows:

“On the one hand, where the defendant negligently fails to see the plaintiff in a position of peril, or negligently fails to act so as to avoid injury to the plaintiff after having observed him in that position, the plaintiff’s contributory negligence or his remote contributory negligence in so positioning himself must, as in any other lawsuit based upon negligence, be considered and given full force and effect. On the other hand, where it is shown the defendant did see the plaintiff in a position of peril; had ample time, opportunity, and ability to avoid injury; but he continued on in the course of his conduct without taking proper and reasonable precautionary measures available to him, and at all times observing the plaintiff’s continuing negligence, did proceed to inflict the injury, the defense of contributory negligence is not available to the defendant. The first situation being that of last clear chance; the latter being' that of discovered peril. The determining aspect being that in the latter situation the defendant did observe the plaintiff’s continuing negligence which placed the plaintiff in a position of peril, but did consciously fail to exercise those precautionary measures available to him to avoid injury to the plaintiff. The defendant’s action in this latter situation is not negligence; it is a willful, deliberate, consciously executed act. The distinction is that of negligence, either simple or gross, on the one hand, and a consciously deliberate act on the other. The discovered peril doctrine therefore comes into play under different rules as to the defense of contributory negligence because those acts which justify the application of the doctrine exhibit on the part of the defendant a degree of deliberateness which the law cannot condone by saying the plaintiff was in error by being there in the first place. See and compare: Kansas City, Memphis and Birmingham Railroad Co. v. Williford (1905) 115 Tenn. 108, 88 S.W. 178; Memphis Street Rail way Co. v. Roe (1907) 118 Tenn. 601, 102 S.W. 348; Todd v. Cincinnati, N. O. & T. P. Ry. Co., supra; Hodge v. Hamilton (1927) 155 Tenn. 403, 293 S.W. 752; Tennessee Central Railway Co. v. Ledbetter (1929) 159 Tenn. 404, 19 S.W.2d 258.” 484 S.W.2d at 552.

The above quoted discussion was preceded by this comment:

“The distinction between the two doctrines is the availability of proximate, continuing contributory negligence as a complete defense to an action based upon last clear chance; whereas, that defense is not available under the doctrine of discovered peril.” 484 S.W.2d at 552.

It is true that Williford, Roe and Todd provided some support for a statement of the doctrines in the terms employed in Gardner and Smith.

The Court of Appeals found, as a matter of law, that plaintiff was guilty of proximate contributory negligence that “continued as a direct and proximate cause of the impact.” The case was remanded for a new trial with only the doctrine of discovered peril, as therein defined, available to plaintiff as a jury issue. The rule of discovered peril, as defined in Gardner and Smith, would require a charge to the jury embracing the distinction between “continuing” and “spent” proximate contributory negligence, and further that discovered peril would not apply unless defendant’s negligence could be characterized as a willful, deliberate, consciously executed act. It is time that we relegate to the ash-heap elaborate attempts to supply a lucid rationale for the doctrine and admit that the basic essential is that the defendant be the last wrongdoer with a reasonable opportunity to avoid the harm.

We are of the opinion that the rules so interpreted are completely out of harmony with the last clear chance doctrine as it exists in American jurisprudence today; and as, from time to time, has been defined and applied in Tennessee.

Our research discloses that virtually without exception the courts of this country, that have not adopted some form of comparative negligence, allow the plaintiff to recover where he is unable to extricate himself, and the defendant actually discovers his position in time to avoid the harm. We find no jurisdiction requiring a finding that plaintiff’s negligence has been spent, either as a matter of law or as a jury question; nor does any other jurisdiction in this country require for the application of any version of a last clear chance doctrine that the defendant’s negligence must rise to the level of a willful, deliberate, consciously executed act.

A majority of jurisdictions also allow recovery by the inattentive plaintiff; that is, where his perilous position is the result of inattention accompanied by the likelihood that his inattention will continue, providing the defendant actually discovers the plaintiff in that position in time to avoid harm. Either a majority or a near majority also allow the plaintiff to recover where he is unable to extricate himself from his perilous position if the defendant could discover by the exercise of reasonable care the perilous situation of the plaintiff in time to act.

It is our opinion that the rules governing all aspects of the last clear chance doctrine are best stated in the Restatement of the Law, Torts, 2d, §§ 479, 480. We adopt said sections as the law in Tennessee governing last clear chance and overrule all the cases in conflict with the principles contained therein. The text of said sections are as follows:

§ 479. Last Clear Chance: Helpless Plaintiff
A plaintiff who has negligently subjected himself to a risk of harm from the defendant’s subsequent negligence may recover for harm caused thereby if, immediately preceding the harm,
(a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and
(b) the defendant is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm, when he
(i) knows of the plaintiff’s situation and realizes or has reason to realize the peril involved in it or
(ii) would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the plaintiff to exercise.

§ 480. Last Clear Chance: Inattentive Plaintiff

A plaintiff who, by the exercise of reasonable vigilance, could discover the danger created by the defendant’s negligence in time to avoid the harm to him, can recover if, but only if, the defendant

(a) knows of the plaintiff’s situation, and

(b) realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to avoid the harm, and

(c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm.

IV.

This case came on to trial on December 10,1973. An amendment to plaintiff’s complaint was filed that day, adding the following allegation:

“Plaintiff avers that if it be deemed that the said Doris C. Street was guilty of contributory negligence, which plaintiff denies, then, in such event, plaintiff avers that the defendant, David Calvert, after having discovered the condition of peril of the said Doris C. Street failed to exercise ordinary care and diligence in preventing his automobile from striking the said Doris C. Street, and that the contributory negligence of the said Doris C. Street, if any, is not available to the defendants as a defense under the doctrine of discovered peril, which said doctrine plaintiff hereby in the alternative invokes.”

The major thrust of the plaintiff’s advocacy was that Mrs. Street was guilty of no negligence, based apparently on the theory that she had reached a place of safety, in front of her mailbox and was only twelve (12) inches from the north edge of the pavement on Hale Road; and that defendant could have easily avoided striking her.

Plaintiff submitted as a special instruction to the jury, the following charge which the trial judge refused to give:

“Members of the jury, if you find from the evidence that the defendant David Calvert saw Mrs. Doris Street in a position of peril and in danger of being struck and injured by the automobile operated by the defendant David Calvert, and if you find that the defendant David Calvert could have avoided the accident, by the exercise of ordinary care, and did not do so, then the plaintiff would be entitled to recover. And I charge you that if you find that the defendant David Calvert failed to exercise ordinary care to avoid striking Mrs. Doris Street, after discovering that she occupied a perilous position, then the contributory negligence of Mrs. Doris Street, if any, is not to be considered in any degree and your verdict must be for the plaintiff.”

While the draftsmanship of the charge is subject to serious criticism, in essence it states the doctrine in accord with Hodge v. Hamilton, supra, and Vaughn v. City of Alcoa, supra. The pleadings, as amended on the first day of the trial reflect a reliance upon the doctrine of discovered peril even though a reading of the entire record reflects little or no advocacy of the doctrine. It is the trial judge’s duty to charge the jury accurately with respect to the theories of the parties and the law applicable thereto. See Rule 51, T.R.C.P. and the comment thereto, Richards v. Parks, 19 Tenn.App. 615, 93 S.W.2d 639 (1935) and Tennessee Electric Power Company v. Van Dodson, 14 Tenn.App. 54 (1931).

Complaint is also made that plaintiff cannot rely upon the doctrine of last clear chance without acknowledging that he is guilty of contributory negligence. In Smith v. Craig, supra, it was stated,

“. . . that reliance upon either doctrine admits of negligence on the part of the plaintiff. If the plaintiff is not guilty of some degree of negligence in placing himself in the perilous position, neither doctrine would be applicable.” 484 S.W.2d at 552.

That observation is correct but it does not follow that plaintiff is precluded from contending in the alternative that he was not guilty of proximate or remote contributory negligence. In most cases it may be poor strategy but this must fall within the realm of plaintiff’s options in the management of his own lawsuit. Rule 8.05 T.R.C.P. expressly permits inconsistent pleading.

From the evidence most favorable to the plaintiff, the jury could have found that David Calvert saw Mrs. Street when he was substantially more than ninety (90) feet east of where she was struck; that in fact there was no parked car in front of the Street residence, and she could have been seen for a distance of six hundred (600) feet; that he saw her start from the steps of her own sidewalk, with her right hand over her head for protection from the rain looking directly at the mailbox and unlikely to see him approaching from her right. It is doubtful that plaintiff could be classified as helpless or unable to avoid the accident, but in our opinion the proof makes it a jury question as to whether her situation falls within the category of an inattentive plaintiff recognized by the defendant to be so, and unlikely to extricate herself from the position of peril in which she .had placed herself.

Thus, in our opinion there was evidence from which the jury could have found that the defendant knew of the plaintiffs situation, realized or had reason to realize that the plaintiff was inattentive and unlikely to discover her peril in time to avoid the harm; and that the defendant was negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm. This even though the plaintiff was inattentive and by the exercise of reasonable vigilance could have discovered the danger created by the defendant’s negligence in time to avoid the harm. In our opinion this case falls within the last clear chance rule as stated in Section 480 of the Restatement.

V.

The trial judge charged the jury that,

“If the plaintiff’s decedent, Mrs. Street, was guilty of negligence which did not directly and proximately contribute to the injuries, damages, and ultimate death, but only remotely contributed to the injuries, damages, and ultimate death of the plaintiff’s decedent, then there may be a recovery by the plaintiff, but you must diminish the amount of damages you award the plaintiff, the administrator, by the degree of remote contributory negligence you find Mrs. Street to have been guilty of.”

This Court has heretofore held that what is meant by remote contributory negligence should be explained to the jury. McClard v. Reid, 190 Tenn. 337, 229 S.W.2d 505 (1950). Our research fails to disclose that this Court has defined remote contributory negligence. We define it as that negligence which is too far removed as to time or place, or causative force, to be a direct or proximate cause of the accident. We suggest that an appropriate charge would state the foregoing definition and add: “If you find the plaintiff guilty of such remote contributory negligence, you must reduce the recovery which you would otherwise award, in proportion to plaintiff’s contribution to the injury.”

VI.

In the petition for certiorari filed in this Court, plaintiff assails the doctrine of contributory negligence as obsolete and asks the Court to adopt in its place one of the three doctrines of comparative negligence that have replaced contributory negligence in twenty-seven (27) of our sister states. An amicus curiae brief was filed, with leave of Court, by Dean John Wade, an eminent authority on the law of torts, urging this Court to adopt the pure form of comparative negligence.

We agree with defendants that this Court should not consider a change in the substantive law adopting comparative negligence when that theory was not asserted by plaintiffs in the trial court, and was presented for the first time on appeal before this Court. Tennessee Supreme Court Rules, Rule 14(5); Sullivan v. Harpeth Dev. Corp., 218 Tenn. 107, 401 S.W.2d 195 (1966); see 5 Am.Jur.2d, Appeal and Error, § 726; 4 C.J.S. Appeal and Error § 228 et seq. We do not deem it appropriate to consider making such a change unless and until a case reaches us wherein the pleadings and proof present an issue of contributory negligence accompanied by advocacy that the ends of justice will be served by adopting the rule of comparative negligence. It is likely that in such a case this Court would have the benefit of amicus curiae briefs representing all interests that would be affected. We are unwilling to change a doctrine of tort law that has been a part of our jurisprudence for over one hundred fifty (150) years that would materially affect thousands of cases in various stages of adjudication where no consideration whatsoever has been given to such change in either the trial court or the intermediate appellate court.

However, in the course of our consideration of this case we have made an exhaustive study of the history of comparative negligence and its status in American jurisprudence today. Historically only five (5) states had adopted any form of comparative negligence prior to 1950. In the late 1960’s the all-out assault on the fault system of liability in automobile accident cases was mounted with a number of groups participating on various fronts. Virtually all of the leading law professors and text writers in the field of torts have long advocated comparative negligence. Since 1968, twenty (20) states have adopted comparative negligence in one form or another. However, only three (3) states, Florida, California, and Alaska have made the transition from contributory negligence to comparative negligence without some degree of legislative participation.

We have concluded that in the present posture of this case we cannot properly adopt a rule of comparative negligence. We will not address the propriety of adopting such a rule nor the question of the type of comparative negligence that might be appropriate in Tennessee.

The judgment of the Court of Appeals is reversed and the case is remanded to the Circuit Court of Shelby County for a new trial consistent with this opinion.

COOPER, C. J., and HENRY and HAR-BISON, JJ., concur.

MATHERNE, Special Justice, not participating.

OPINION ON PETITION TO REHEAR

FONES, Justice.

The respondents have filed a petition to rehear based on the contention that we have made basic changes in this State’s last clear chance and discoverable peril doctrines, and that a retroactive application of these changes to the present case would work a hardship. We deny this petition because we have not changed but rather clarified the last clear chance doctrine as it has always been applied in this State.

As we noted in the opinion, the status of the last clear chance doctrine here has been one of constant confusion. See, Wade, Crawford & Ryder, Comparative Fault in Tennessee Tort Actions: Past, Present, Future, 41 Tenn.L.Rev. 423, 428-430. Our adoption of the Restatement of the Law, Torts 2d, §§ 479, 480 merely delineates more clearly our view of the last clear chance doctrine. We simply have restated the doctrine as it “from time to time, has been defined and applied in Tennessee.” (Opinion, p. 583); Vaughn v. City of Alcoa, 194 Tenn. 449, 251 S.W.2d 304 (1952); Hodge v. Hamilton, 155 Tenn. 403, 293 S.W. 752 (1927); Todd v. Railroad, 135 Tenn. 92, 185 S.W. 62 (1915).

The petitioners assert that by our opinion we have overruled the doctrine set forth by the Court of Appeals in Smith v. Craig, 484 S.W.2d 549 (Tenn.App.1972) and Gardner’s Mason Contrs. Inc. v. St. Louis-San F. Ry. Co., 63 Tenn.App. 288, 470 S.W.2d 945 (1971), which is contrary to the Restatement view.’ The petitioners further contend that our opinion and its “retroactive applicability” has overturned these cases’ comprehensive and authoritative treatment of the last clear chance doctrine which has been heavily relied on by courts and attorneys since 1972. This contention is based on the court’s denial of certiorari in Smith and Gardner’s.

In Bryan v. Aetna Life Ins. Co., 174 Tenn. 602, 130 S.W.2d 85 (1939), Chief Justice Green writing for the Court stated:

“We have repeatedly pointed out that a mere denial by this court of a writ of certiorari to the Court of Appeals does not commit us to all the views expressed in a particular opinion. We are primarily concerned on such application with the result reached.” 174 Tenn. at 611, 130 S.W.2d at 88.

See also Lingner v. Lingner, 165 Tenn. 525, 529, 56 S.W .2d 749 (1933) and Powers v. L & N R. Co., 183 Tenn. 526, 194 S.W.2d 241 (1946).

The petition to rehear is denied.

COOPER, C. J., and HENRY and HAR-BISON, JJ., concur.

MATHERNE, Special Justice, not participating.

      . The footnote citations accompanying the quote are omitted. All of the cases cited are referred to in this opinion except the following: Kilgore v. Greyhound Corp. 30 F.R.D. 385 (E.D. Tenn. 1962); Hemmer v. Tennessee Elec. Power Co., 24 Tenn.App. 42, 139 S.W.2d 698 (1940); Erosion Control Corp. v. Evans, 58 Tenn.App. 90, 426 S.W.2d 202 (1967); and Evansville Container Corp. v. McDonald, 132 F.2d 80 (6th Cir. 1942).

      . Hoffman v. Jones, 280 So.2d 431 (Fla., 1973).

      . Li v. Yellow Cab Company of California, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975).

        .Kaatz v. State, 540 P.2d 1037 (Alas., 1975).


source: Caselaw Access Project

author: BROCK, Justice.

license: Public Domain

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Ira C. WILLIAMS, Appellee.
    Supreme Court of Tennessee.
    Sept. 27, 1976.

      Richard W. Krieg, Knoxville, for appellant.
    Bland D. Winfrey, Arnold, Winfrey, McMurray & Russell, Lenior City, for appel-lee.
   OPINION

BROCK, Justice.

This is a dispute between an insurance company and its insured over which of them should pay the attorney’s fee incurred in collecting a subrogation claim.

On March 18, 1972, the minor son of the appellee, Williams, was injured in an automobile accident caused by a third party. The appellant, Travelers, paid the sum of $1,000.00 under the Medical Pay provision of an insurance contract issued to the appel-lee. The policy provides that “[in] the event of payment . . . the Company shall be subrogated to all the insured’s rights of recovery against any person or organization. . . . ”

On June 16, 1972, Travelers advised the tortfeasor’s insurer, State Farm Mutual Insurance Agency, of its right to be subrogat-ed to a portion of Williams’ claim and requested that State Farm protect this subro-gation interest in the event settlement should be made. At the same time, Williams was notified that the Travelers Company would “handle [its] own subrogation.” Some months later, State Farm acknowledged the correspondence, agreeing to hon- or the subrogation claim.

Williams filed his suit against the tort-feasor on March 5,1973, which was concluded by a settlement executed on August 23, 1973. A State Farm draft, payable to Williams and the Travelers Company, is in the Registry of the Court.

Travelers has asserted its right to subro-gation under the policy, a right which is not disputed by the appellee. The only controversy is whether the insurer’s recovery is to be measured by the entire amount paid by it, $1,000.00, or whether it should be reduced by one-third, the fraction claimed by the appellee’s attorney as his fee.

In Tennessee Farmers Mutual Ins. Co. v. Pritchett, 54 Tenn.App. 410, 391 S.W.2d 671 (1969) (certiorari denied), the Court of Appeals held that an insurer subrogated to the rights of its insured against a tortfeasor must bear its pro rata portion of the insured’s expenses in securing the recovery if it sits idly by and acquiesces in the action of the insured’s attorney in its behalf. The decision was based upon an implied contract between the insurer and the attorney although some language in the opinion speaks in terms of a quasi contractual duty. In the words of the Chancellor, the case was:

“Another glaring example of an insurance company sitting back on its haunches, doing nothing and waiting to get its share of a claim procured by attorneys, but not wanting to pay its share of an attorney’s fee.” Id. at 414, 391 S.W.2d at 674.

The appellant seeks to avoid the rule applied in Pritchett by contending that it did not sit idly by while the insured’s attorney performed services for it; that, instead, it gave proper notice to the insured that it did not desire the participation of his attorney in its behalf.

The decisions in other jurisdictions are interesting, if not conclusive. Attorneys’ fees have been awarded in at least one state even though the insurer expressly advised the insured’s attorney not to represent it; the reason being that it claimed an interest in the judgment or settlement which he recovered. See United Services Automobile Assn. v. Hills, 172 Neb. 128, 109 N.W.2d 174, 2 A.L.R.3d 1422 (1961); Krause v. State Farm Mutual Auto. Ins. Co., 184 Neb. 588, 169 N.W.2d 601 (1969). Both opinions explain this result as a consequence of the rule against splitting a cause of action. However, as the dissent in Hills points out, the rule does not prevent a plaintiff from suing for only a portion of his damages; he is merely precluded, if he does, from maintaining a later action for the omitted elements of damage.

Wisconsin has announced a rule, of prospective application, that the attorney must notify the subrogated insurer that it will be liable, pro rata, to him for his fee unless it elects to become a party to the action and is represented by counsel of its own choosing. State Farm Mutual Automobile Ins. Co. v. Geline, 48 Wis.2d 290, 179 N.W.2d 815 (1970).

Elsewhere, it appears that, when fees have been denied to the insured’s attorney, the subrogee either realized no actual benefit from the attorney’s services or took action of its own to protect its interest. Carey v. Phoenix Ins. Co., 83 Conn. 690, 78 A. 426 (1910); Pontiac Mutual County Fire & Lightning Ins. Co. v. Sheibley, 279 Ill. 118, 116 N.E. 644 (1917); Moyer & Moyer v. State Farm Mutual Ins. Co., 190 Neb. 174, 206 N.W.2d 644 (1973).

There are, of course, many situations in which the work of an attorney proves useful to persons other than his own client. The normal rule in such cases is that he must look only to his client, with whom he has contracted, for his compensation, notwithstanding the acceptance of benefits by others. Hill v. Childress, 18 Tenn. 514 (1837); Moses v. Ocoee Bank, 69 Tenn. 398 (1878); Hume v. Commercial Bank, 81 Tenn. 496 (1884); Rogers v. O’Mary, 95 Tenn. 514, 32 S.W. 462 (1895); State ex rel. Banks v. Taylor, 199 Tenn. 507, 287 S.W.2d 83 (1956); Draper v. Draper, 24 Tenn.App. 548, 147 S.W.2d 759 (1941); Southern v. Beeler, 183 Tenn. 272, 195 S.W.2d 857 (1946). But, an exception to this rule is made whenever one person, having assumed the risks and expense of litigation, has succeeded in securing, augmenting, or preserving property or a fund of money in which other people are entitled to share in common. In that event, the expenses of the action are borne by each participant according to his interest. Bristol-Goodson Electric Light & Power Co. v. Bristol Gas, Electric Light and Power Co., 99 Tenn. 371, 42 S.W. 19 (1897); City of Bristol v. Bostwick, 146 Tenn. 205, 240 S.W. 774 (1922); Carmack v. Fidelity Bankers Trust Co., 180 Tenn. 571, 177 S.W.2d 351 (1944); Pennington v. Divney, 182 Tenn. 207, 185 S.W.2d 514 (1945); Gilpin v. Burrage, 188 Tenn. 80, 216 S.W.2d 732 (1949). The fairest and most efficient means of distributing these costs is thought to be to make them a charge upon the fund itself. This device, known as the “fund doctrine,” was invented by courts of equity to prevent passive beneficiaries of the fund from being unjustly enriched. It is, therefore, never applied against persons who have employed counsel on their own account to represent their interests. See Ensley v. Ensley, 105 Tenn. 107, 58 S.W. 288 (1900); City of Bristol v. Bostwick, supra; Cass v. Smith, 146 Tenn. 218, 240 S.W. 778 (1921); Leggett v. Missouri State Ins. Co., 342 S.W.2d 833 (Mo. 1960). Thus, the right to employ counsel of one’s own choosing is preserved.

It is stated in Travelers’ brief that “the defendant . . . wrote the plaintiff advising him not to protect Travelers’ sub-rogation rights.” A letter from a Travelers’ claims representative was introduced into evidence. It shows that Williams was notified that the Company would “handle [its] own subrogation.” Thus, Travelers contends that the appellee was put on notice not to protect its subrogation right; and, therefore, any services rendered by Attorney Winfrey under his contract with appellee, Williams, whereby Travelers was benefited were performed as a volunteer and Travelers should not be held liable for them.

Varied fact situations are disclosed by the reported cases dealing with this problem. We doubt the advisability of attempting to devise a single “rule” to govern all such cases, whatever the facts might be. Instead, each case, with its peculiar facts must be decided by applying general, fundamental principles of contract law.

Upon payment by the insurer of a loss, it becomes the real party in interest with respect to the subrogation claim, National Cordova Corp. v. City of Memphis, 214 Tenn. 371, 380 S.W.2d 793 (1964), and has the right to bring suit in the name of the insured, Emmco Ins. Co. v. Beacon Mut. Indemnity Co., 204 Tenn. 540, 322 S.W.2d 226 (1959), or in its own name. Rule 17.01, Tennessee Rules of Civil Procedure. The insurer may intervene in an action brought by the insured against a wrongdoer and assert its subrogation claim therein. Globe & Rutgers Fire Ins. Co. v. Cleveland, 162 Tenn. 83, 34 S.W.2d 1059 (1931); but, it cannot bring suit against the wrongdoer after judgment has been rendered in the insured’s action. Ibid. Accord National Cordova Corp. v. City of Memphis, supra. In short, the subrogation claim is the property of the insurer to deal with as it pleases so long as the rights of others, e. g., the insured or the wrongdoer, are not prejudiced.

It follows that whether or not an attorney is entitled to collect from the insurer a fee with respect to a subrogation claim depends upon whether an express or implied contract or a quasi contractual relation exists between them.

In the instant case, we find no evidence that an express or implied contract existed between the insurer and the insured’s attorney. On the contrary, unlike the subrogee in the Pritchett case, the insurer here expressly stated to the insured that it would handle its own subrogation claim and that the insured was not to protect the same. A promise cannot be implied in fact in the face of a declaration to the contrary by the party to be charged. Any authority which the insured might otherwise have had to direct his attorney to prosecute the subrogation claim was expressly revoked.

Neither do we find evidence of unjust enrichment of the insurer from the services of the insured’s attorney upon which a quasi or constructive contractual duty could be based. In our view, one is not unjustly enriched by a benefit “forced upon” him as the result of services voluntarily and officiously performed by another who has been expressly informed by the alleged promisor that his services are not desired.

We conclude that the facts of this case do not entitle the insured’s attorney to receive any fee from the insurer with respect to the subrogation claim; he acted as a volunteer.

The judgment of the trial court is reversed, the appellant is awarded judgment against appellee for the sum of $1,000.00, with interest and costs; the original complaint filed by the appellee against the appellant is dismissed and costs taxed against appellee.

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


author: HENRY, Justice.

text:
    Roger L. MacBRIDE et al., Appellants, v. Shirley HASSLER, etc., et al., Appellees.
    Supreme Court of Tennessee.
    Sept. 29, 1976.
    Philip M. Carden, Nashville, for appellants.

      Robert B. Littleton, Asst. Atty. Gen., for appellees; Nashville, R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

HENRY, Justice.

This mandamus action instituted by parties who assert that they are the Libertarian Party candidates for the offices of President and Vice-President of the United States, their Tennessee electors, and certain party members, seeks to compel the State Coordinator of Elections, the Secretary of State and the State Election Commission to cause their names to be listed on the November General Election Ballot in accordance with § 2-514(g), T.C.A.

The Chancellor decided the issues adversely to plaintiffs and this appeal ensued. We granted a motion to expedite because of the proximity of the forthcoming general election and the importance of a timely decision in an area affecting the public interest.

I

On June 3, 1976 plaintiffs filed with the State Election Commission (1) Certifications of a Libertarian Party nominees, Roger L. MacBride and David Bergland, for President and Vice-President of the United States respectively; (2) a certification of the nomination of the Libertarian Party electors; (3) petitions for the nomination of the same parties as a slate of electors pledged to vote for MaeBride and Bergland as independent candidates; (4) petitions for the nomination of the same persons individually and separately, and (5) a cover letter to the Commission requesting that the elector slate be listed on the November General Election Ballot as party delegates under § 2-514(g), or in the alternative that they be listed as independent candidates pledged to MacBride and Bergland.

Liberally construed, the complaint alleges that these petitions and certifications were determined to be insufficient to accomplish their intended purpose.

Plaintiffs rely upon § 2-104(13), T.C.A. which reads as follows:

‘Political party’ means an organization which nominates candidates for public office.

They further rely upon § 2-514(g) T.C.A. which provides:

(g) The names of presidential electors shall be arranged in groups, according to political parties, and preceded by the words, “Electors for (giving the name) candidate for President and for (giving the name) candidate for Vice-President” so that the voter can vote for the entire group of electors chosen by any political party by making a cross mark (X) or operating a single lever on a voting machine opposite the words at the head of the group of electors, which words revealed the name of the candidates for president and vice-president of the particular political party whom such group of electors is pledged to support.

Plaintiffs allege that “no provisions may be found elsewhere in the Election Code to provide for any procedure by which political parties may qualify the electors . so that they may be listed in accordance with T.C.A. § 2-514(g), supra, nor is there any statutory provision for the qualification of independent candidates for electors . so as to allow substantial compliance with T.C.A. § 2-514(g).” From this major premise they reason that the above cited code sections “require that the defendants accept the certification of the individual plaintiffs”, as tendered, and list them on the ballot as prescribed by T.C.A. § 2-514(g).

Thus, a clear and simple case of statutory construction is presented as opposed to a constitutional issue although the complaint, in a vague and nebulous manner, suggests various state and federal constitutional infirmities.

ii

Tennessee’s election laws, like Topsy, “just growed” until they finally reached a point that there were out-moded, chaotic and unworkable. In 1972 the General Assembly adopted a comprehensive and uniform Election Code. [Acts 1972 (Adj.S.) Ch. 740] which is codified in § 2-101, et seq., T.C.A. All elections are conducted under this Code. § 2-103, T.C.A.

Since this Code governs all elections from constable to congressman to presidential electors, the phraseology used must be read in context. § 2 — 104(13) defines a “political party” to mean “an organization which nominates candidates for public office”. A subsequent sub-paragraph, (27) defines “Statewide political party”. Other provisions of the Code refer to a local political party. See e.g., § 2-1301(b)(2).

It logically follows that there are two categories of political parties, viz “statewide” and “local”. There is no merit in appellants’ insistence that the broad generalized definition contained in § 2-104(13) T.C.A. is applicable. This suit concerns statewide political parties.

Any analysis of the pertinent provisions of the Election Code must start with- — or necessarily include as a focal point — § 2-1301, T.C.A. which reads, in part, as follows:

(a) No person’s name may be shown on a ballot as the nominee of a political party for the offices named in § 2-1314 or for any office voted on by the voters of more than one county unless the political party
(1) is a statewide political party and
(2) has nominated him substantially in compliance with this chapter. (Emphasis supplied).

We advert to § 2-104(27) for a definition of “Statewide political party” and find that it means either:

(a) A political party at least one of whose candidates for an office to be elected by voters of the entire state in the past four (4) calendar years has received a number of votes equal to at least five per cent (5%) of the total number of votes cast for gubernatorial candidates in the most recent election of governor, or
(b) For one (1) year after petitioning successfully, a political party which has a membership equal to at least two and one half per cent (2½%) of the total number of votes cast for gubernatorial candidates in the most recent election of governor as shown by petitions to establish a political party filed with the coordinator of elections and signed by registered voters as members of the party and certified as to registration of the signers by the county election commissions of the counties where the signers are residents.

We, therefore, hold that in order for an existing statewide party to continue its recognition under the Tennessee Election Code, at least one of its candidates for statewide office must receive at least five per cent (5%) of the total number of votes cast for gubernatorial candidates in the last preceding general election. For a new party to attain recognition it must file a petition with the coordinator of elections, bearing the signature of party members in a number equalling two and one-half (2V2) per cent of the total votes cast in the last preceding gubernatorial election.

The complaint is strangely silent as to whether the Libertarian Party has filed the required petition under Tennessee Law. We infer from the admissions of the brief that no such petition has been filed. In either event the record does not show that this essential step was taken.

We, therefore, hold that absent this mandatory statutory requirement the presidential electors of the Libertarian Party are not entitled to have their names appear on the ballot under the provisions of § 2— 514(g).

III

The placement of the names of independent candidates upon the ballot is governed by other sections of the Election Code. Section 2-504 provides:

Candidates who are not to be placed on ballots as nominees of a political party shall be known as ‘independent candidates.’

Section 2-514(c), T.C.A. provides:

On general election ballots, the name of each political party having nominees on the ballot shall be listed at the top of the columns, with the listing of the candidates’ names underneath. The names of independent candidates for the same office shall be listed in the independent column alphabetically, according to the initials of their surname, beginning with the first initial.

It results that the Libertarian Party electors, being “independent candidates”, must be placed on the ballot, in alphabetical order, along with all other independent candidates, and in the “independent column.”

IV

We do not reach the constitutional issue because it is not properly pleaded. We note, however, from the Chancellor’s Memorandum Opinion in the instant case, the following:

The requirements of the Tennessee Election Code to obtain a position on the ballot for statewide offices have been upheld as reasonable. Tennessee Libertarian Party, et al. v. Democratic Party of Tennessee, et al., A-5881, Memorandum filed Jan. 27, 1976, which is incorporated herein by reference. (Emphasis supplied).

The Memorandum of January 27, 1976 was not a part of the record on appeal; however, we have caused it to be certified to this Court and have examined it. In disposing of the Libertarian Party’s challenge of the constitutionality of § 2-1301 and § 2-104(27), Chancellor Cantrell said:

It is the opinion of the Court in this case that the requirements written into the Tennessee Election Code to obtain a position on the ballot for statewide offices are reasonable and do not invidiously discriminate against minority parties.

Thus the Libertarian Party has already had an adverse judgment of a competent court upon its claim that these procedures are constitutionally infirm. No appeal was perfected.

This bolsters our conclusion that the only issue presented in the present controversy was one of statutory construction. We do not believe counsel sought to re-litigate a foreclosed issue.

The judgment of the Chancellor is

Affirmed.

COOPER, C. J., and FONES, HARBI-SON, and BROCK, JJ., concurring.

      . This party’s nominees have never appeared on the ballot in Tennessee.

      . Copies of these petitions and certifications do not appear in the record. We, therefore, make no value judgment as to their efficacy.

      . In the 1974 gubernatorial contest, 1,040,714 votes were cast. See Tennessee Blue Book, 1975-1976. For an uncertified party to qualify it must submit a petition signed by 26,018 registered party members. (2h% of 1,040,714). W.e note that Tennessee has 1,958,715 registered voters. See the Book of the States, 1976-1977, page 213.


text:
    The CONTINENTAL INSURANCE COMPANIES, Appellant, v. Martha E. PRUITT, Appellees.
    Supreme Court of Tennessee.
    Oct. 4, 1976.

      F. Thornton Strang, Strang, Fletcher, Carriger, Walker, Hodge & Smith, Chattanooga, for appellant.
    Robert J. Harriss, Brown, Harriss, Hartman & Ruskaup, Rossville, Ga., for appel-lees.
   OPINION

HENRY, Justice.

This is a workmen’s compensation action wherein the ultimate question is the sufficiency of the evidence to sustain the action of the Chancellor in awarding sixty-five (65%) percent permanent partial disability to the body as a whole in a case wherein the injury was to the upper left extremity.

The insurance carrier insists that the injury was to a scheduled member, i. e., the arm, and, therefore, an award based upon disability to the body as a whole is not authorized by § 50-1007(c) T.C.A. Relying upon Chapman v. Clement Bros., Inc., 222 Tenn. 223, 435 S.W.2d 117 (1968), the carrier would have us equate “upper left extremity” with “arm” and hold that benefits are restricted to the statutory schedule. We reject this insistence.

I.

Section 50-1007(c) T.C.A., which contains the scheduled injuries, provides for the payment of permanent partial disability as follows:

For the loss of an arm, sixty-six and two-thirds percent (66⅜%) of the average weekly wages during two hundred (200) weeks. (Emphasis supplied).

The statute contains no reference to an “extremity.” It is fundamental that in construing statutes words will be given their ordinary and commonly accepted meaning. Western Pipe Line v. Dickinson, 203 Tenn. 248, 310 S.W.2d 455 (1958).

While the courts are not necessarily bound by dictionary definitions, we note the definition of the word “arm”, in Webster’s, New International Dictionary, Second Edition, (unabridged, 1954):

A human upper limb; — often restricted to the part between the shoulder and the wrist.

Again, in Dorland’s, Medical Dictionary, 23rd edition, (W. B. Saunders Company, 1957):

The upper extremity from the shoulder to the hand. (Emphasis supplied).

We hold that these are the commonly accepted meanings of the word “arm” and that if the injury extends upward beyond the arm and into the shoulder area to a significant extent it is not a scheduled injury and compensation is governed by so much of § 50-1007(c) T.C.A., as reads as follows:

All other cases of permanent partial disability not above enumerated shall be apportioned to the body as a whole

We examine the testimony in the light of these controlling considerations.

II.

The testimony of the claimant, a fifty-six year old woman with an eighth grade education, and her lay witnesses fully sustains her insistence that her basic injury was primarily to the shoulder.

It was stipulated that Dr. Earl Campbell, Jr., an orthopedic surgeon, had stated that in his opinion she had a fifty percent permanent partial impairment to the left upper extremity. Standing alone this gives no insight into the specifics of the injury.

Dr. Augustus H. Frye, Jr., also an orthopedic surgeon, testified by deposition, and his testimony is more revealing.

His first pertinent observation is that claimant “sustained an injury to her left shoulder.” Her presenting complaint was of “pain in the neck, her shoulder and her left arm down to the elbow.”

He says she had a definite restriction of motion in the left shoulder and was “tender to pressure over the lateral surface of the neck and over the trapezius muscle on the left side.”

She had a partial removal of the humeral head and an almost total removal of the acromion process. She had a rotator cuff tear, which he described as being a disruption of the rotator cuff, which is “the end product of three muscles in the shoulder [which all come together] and this is inserted into the head of the humerus” (the bone extending from the shoulder to the elbow). Part of the shoulder blade had been removed. He estimated that she only had about fifty percent of the normal shoulder joint strength. She did not have a “serviceable” shoulder, it being “unstable” and “weak”.

He testified positively, “I think basically all her problem is at the shoulder itself.” He gave her a fifty percent permanent partial disability of her left upper extremity and twenty-five percent to the body as a whole.

Reading the Doctor’s testimony in full context it is beyond doubt that the phrase “left upper extremity” encompassed more than the left upper arm. The following question and answer, on redirect examination are pertinent:

Q. By “left upper extremity”, Doctor, you are not talking about just her arm, you are talking about her shoulder as well.
A. I am talking about her hand, her elbow, her wrist, her forearm, her elbow and shoulder. I am talking about the entire extremity. (Emphasis supplied).

There is no testimony on any injury peculiar or restricted to the arm. It all relates either to the shoulder or to the joint between the arm and shoulder.

The following chart, when read in conjunction with the proof, as herein digested, will serve to illustrate that the basic injury here involved was to the shoulder.

CORACO-ACROMIAL LIG.

III.

A careful reading of the record commands the conclusion that claimant’s injuries must be related to the body as a whole vis a vis a scheduled member.

In Chapman v. Clement Bros., Inc., supra, the claimant complained of pain about the shoulder joint but there was no dislocation of the joint. He sustained a fracture of the upper portion of the humerus, the upper arm bone and possibly a tear of the rotator cuff. He had marked pain and spasm about the right shoulder and the shoulder joint was injured.

The testifying physician in Chapman defined an “upper extremity” as follows:

The upper extremity is a unit of the whole man. It may be divided into four sections; the hand, the wrist, the elbow and the shoulder. (Emphasis supplied). 222 Tenn. at 226, 435 S.W.2d at 118.

While we have no disposition to question this definition, the fact remains that an “upper extremity” is not a scheduled member. This extremity necessarily includes the fingers, the thumb, the hand, and the arm — all scheduled members, irrespective of their being included in the term “extremity” or “upper extremity.”

Second, the shoulder is not a scheduled member.

Third, in Chapman, regardless of the imprecise terminology, the injury was to the arm, a scheduled member.

Perhaps some of the language used in Chapman was overbroad. It is not controlling here and its holding must be confined to its own factual situation.

The distinguished Chancellor showed commendable insight in the resolution of this issue and, in all respects, his judgment is

Affirmed.

All concur.

      . The function of the trapezius muscle is to rotate the acapula (shoulder blade) to raise the shoulder in abduction (the withdrawal of a part from the axis of the body) of the arm. See Dorland’s Medical Dictionary, page 879 (23rd edition 1957). This difficulty in abduction was a major complaint voiced by claimant in her testimony.

      . The acromion is the outward extension of the spine of the scapula, forming the point of the shoulder. Dorland’s Medical Dictionary, page 29.


author: NEARN, Judge.

text:
    Mildred STONE, Appellant, v. Anna HINDS, Appellee.
    Court of Appeals of Tennessee, Western Section.
    June 3, 1976.
    Certiorari Denied by Supreme Court Sept. 7, 1976.
    Robert J. Shockey, Chattanooga, for appellant.

      Robert W. Ritchie, Knoxville, for appel-lee.
   NEARN, Judge.

This is an alienation of affection suit which was disposed of below by the granting of a motion for summary judgment made by the defendant. In granting the motion the Trial Judge found that the statute of limitations, T.C.A. § 28-305, barred plaintiff’s claim.

Summary judgment procedure is not a substitute for a trial. It is only when there is no disputed issue of material fact that a summary judgment should be granted. If such fact issue is present, the matter must not be resolved by a battle of affidavits, but must be resolved by a trial on the merits. Evco Corp. v. Boss (1975 Tenn.) 528 S.W.2d 20; Layhew v. Dixon (1975 Tenn.) 527 S.W.2d 739.

With this rule in mind we have examined the record before us and find that the complaint alleges that in December 1971, it “became apparent to plaintiff that defendant had commenced a course of action whereby she alienated the affection of plaintiff’s husband.”

By motion for summary judgment, defendant charged that plaintiff’s claim was barred by the statute of limitations and attached supporting affidavits and depositions.

The pleadings, affidavits, counter-affidavits and depositions admit or concur in the following:

(1) On May 20, 1970, the plaintiff’s husband left home following an argument with plaintiff.
(2) In July 1970, plaintiff learned of a close relationship between her husband and the defendant.
(3) On August 21, 1970, plaintiff’s husband returned home.
(4) On September 28, 1972, plaintiff’s husband again leaves home.
(5) On February 12, 1973, plaintiff’s husband files suit for divorce.
(6)On September 19, 1974, this suit for alienation of affection is filed by plaintiff.

T.C.A. § 28-305 provides that a suit for alienation of affection is barred unless it is “commenced within three (3) years from the accruing of the cause of action.” The phrase “from the accruing of the cause of action” means from the time when the plaintiff knew or reasonably should have known that a cause of action existed. Broidioi v. Hall (1949) 188 Tenn. 236, 218 S.W.2d 737; Teeters v. Currey (1974 Tenn.) 518 S.W.2d 512; McCroskey v. Bryant Air Conditioning Company (1975 Tenn.) 524 S.W.2d 487.

Counsel for plaintiff does not contend that the suit is based on any alienation of affection that occurred prior to August 21, 1970, but is based on that alienation that occurred subsequent to the alleged reconciliation of the parties on August 21,1970. In our opinion this is the only tenable position that plaintiff may take, for as we view the record, plaintiff has admitted that she was aware of an alienation of affection by the defendant prior to the alleged reconciliation.

The threshold issue then is whether a second, new and separate alienation of affection by the same person as the first is barred by the statute of limitations when such second alienation reaches maturity more than three years after the first. We hold it is not. If, in fact, there has been a reconciliation of the husband and wife after the first known alienation, and subsequent thereto, an alienation of the new affectionate relationship takes place, a new cause of action may accrue for the new wrongful act, and the time for commencing an action begins from the accrual of the new cause of action.

Counsel for defendant strongly relies upon the case of Rheudasil v. Clower (1954) 197 Tenn. 27, 270 S.W.2d 345, for the proposition that plaintiff’s cause of action was barred in July of 1973, which was three years after plaintiff alleges she first learned of the alienation. We believe this reliance is misplaced. The Rheudasil case arrived in the Supreme Court from an order sustaining a demurrer. Only the pleadings were before the Court. In paraphrasing the declaration, the Court observed that the plaintiff husband left his wife on March 5, 1951, returned on November 23, 1951, with final separation occurring on November 25, 1951. Then, the Court in describing the separation of March 5,1951, quoted directly from the declaration as follows:

“ ‘it was very obvious to the plaintiff that he was losing the love, affection, and consortium of his wife because of the evil designs, diabolical ways, trickery, scheming, and connivance on the part of the defendant’.”

The Court then held that the one year statute of limitations then applicable barred the action. There is nothing in the Court’s Opinion that would indicate that the pleadings alleged a reconciliation and a re-establishment of an affectionate relationship between husband and wife after the March 5, 1951, separation.

Absent a claim of reconciliation, there could be no other commencement date for the beginning of the running of the statute other than the March date, for that is the date upon which the plaintiff learned of the cause of action. As we read the Opinion, no new tort was alleged to have been committed.

In the case of Donnell v. Donnell (1967) 220 Tenn. 169, 415 S.W.2d 127, which was an alienation of affection suit, but did not involve the statute of limitations, the Court observed that the tort could be committed even though the married parties were separated at the time of the alienation, because one spouse has the right to the possibility of regaining the conjugal society and affection of the other spouse. In this case the plaintiff avers that she had regained that conjugal society and affection only to again have it alienated by the same party. In effect plaintiff avers that the possibility spoken of in Donnell became a reality in this case, only to become irretrievably lost by new acts of the defendant.

We now return to the pleadings, affidavits, etc., of this case.

In ruling on motions for summary judgment both the Trial Court and this Court must consider the matter in the same manner as a motion for a directed verdict made at the close of plaintiff’s proof; i. e., we must view all affidavits in the light most favorable to the opponent of the motion and draw all legitimate conclusions of fact therefrom in that favor. If after so doing a disputed issue of material fact is made out, the motion must be denied.

We have applied this rule to this case and we find it controverted as to whether an actual reconciliation was established between the parties. The plaintiff says it was and that this re-established affectionate relationship between herself and her husband was alienated by the defendant. The husband’s affidavit filed by the defendant is to the effect that the reconciliation was not one in fact but was one of convenience to assuage embarrassment suffered by their daughter and that there never was any affectionate relationship re-established to be re-alienated, and that plaintiff well knew it.

This appears to us to be a controverted material fact. And until it is resolved no ruling can be made regarding the statute of limitations. Therefore, the disputed factual issue must be submitted to the jury under a proper charge of the Court.

We therefore hold that the Trial Judge erred in granting the motion. Since no other attack is made upon these proceedings except as herein mentioned, the order sustaining the motion for summary judgment is overruled and the cause remanded for further proceedings.

CARNEY, P. J„ and MATHERNE, J., concur.


author: SANDERS, Judge.

text:
    Ralph B. CONLEE v. BOST ENGINEERING COMPANY, INC., et al.
    Court of Appeals of Tennessee, Eastern Section.
    June 10, 1976.
    Certiorari Denied by Supreme Court Sept. 7, 1976.
    William W. Davis, Knoxville, for appellants.
    Robert A. Finley and Darryl G. Lowe, Knoxville, for appellees.
   OPINION

SANDERS, Judge.

The Plaintiff-Appellee, Ralph B. Conlee, brought suit in the Chancery Court for Knox County against the Defendants-Appellants, Bost Engineering Company, Inc., his former employer, and A. E. Bost, Charles Buchanan and Estelle Austin, trustees of a private pension plan initiated by Bost Engineering Company, seeking to recover certain funds held by the trustees.

The cause was heard by the Chancellor who found the issues in favor of the Plaintiff. A judgment was entered for the Plaintiff in the amount of $8,670 which represents the cash surrender value of two insurance policies purchased by the trustees for the purpose of funding the Plaintiff’s participation in the pension plan. The Defendants have appealed and assigned error.

The main thrust of the Defendants’ assignments of error is that it was error for the Chancellor to rewrite the provisions of the pension plan in accordance with his own ideas of what is fair and equitable, disregarding the clear, unambiguous language of the trust agreement.

On November 15, 1965, Bost Engineering Company entered into a trust agreement for the benefit of its employees. The trust agreement established a non-contributory pension plan for the employees of the Company as a fringe benefit. The obligation of the Company to its employees and the vesting of an employee’s right to receive pension benefits under the terms of the trust agreement are as follows:

ARTICLE IX
TERMINATION OF EMPLOYMENT
9.1 If a Participant shall for any cause, except retirement as herein contemplated, other than early retirement as permitted by Section 7.2(a), or death, cease to be employed by the Employer, the Terminated Participant shall have no further rights or interest, nor receive any benefits under the Trust except as provided in this Article IX.*
9.2 Such Terminated Participant shall have a vested interest as of the date of such termination of employment in each contract issued and in effect for his benefit according to the following Schedule:
For the first five (5) years of participation .Nothing
Upon completion of five (5) years of participation . 50%
Upon completion of each additional year of participation, an additional .10%
Upon completion of ten (10) years of participation. 100%

The Plaintiff was employed by Bost Engineering on February 1, 1972, and became a participant in the pension plan on its anniversary date, November 15, 1972. He remained an employee of the Company until January, 1974, when it was purchased by Russell and Axon, another engineering concern. The Plaintiff was given the opportunity to accept, and did accept, employment with the new firm and was entitled to participate in its retirement program. The pension trust created by Bost Engineering Company was not continued or consolidated with the pension plan offered by Russell and Axon. After the Plaintiff left the employment of the Company its pension trust continued in existence until the tenth anniversary of the trust, at which time it was terminated.

After the Plaintiff had been in the employ of Bost Engineering Company approximately one year, he approached its president, A. E. Bost, regarding an increase in salary. At this time his salary was $14,000 per year and was less than that paid engineers of a similar status. During the course of this conversation Defendant Bost informed the Plaintiff that $5,000 was being paid into a pension trust fund each year on his behalf. Prior to this conversation the Plaintiff was not aware of the contributions being made to the pension trust for his benefit. Upon receiving this information the Plaintiff withdrew his request for additional compensation and accepted Defendant Bost’s offer to increase his wages by $1,000 per year.

The Plaintiff based his right to recover upon this conversation, claiming that the contributions to the pension fund were being made on his behalf. The Chancellor allowed the Plaintiff to recover, stating that because of the aforementioned conversation the payments to the trust fund, although made by the employer, were in effect contributions by the Plaintiff.

There is no evidence the Defendant Company or trustees misrepresented any material fact to the Plaintiff regarding the pension trust. Therefore, we must respectfully disagree with the conclusions reached by the Chancellor. Under the plain and unambiguous terms of the pension plan the Plaintiff was not entitled to any benefits since his right to the pension fund had not vested as provided by the conditions precedent to the vesting of such rights set forth in Article IX, Sections 9.1 and 9.2.

The issues raised in this appeal constitute a question of first impression in this state; however, there is ample authority to support the proposition that an employee’s rights with respect to a pension or retirement plan vest only in accordance with the terms of the plan. The prevailing view regarding the rights and liabilities as between employer and employee with respect to general pension or retirement plans has been stated as follows in 42 A.L.R.2d 461 at 464:

“Whatever the general nature of the employee’s rights under a pension plan, it is clear that full compliance with the announced conditions of eligibility is a condition precedent to the acquisition of rights thereunder, and accordingly it has usually been held that where employment terminates before entitlement is complete the employee has no right to any benefits other than those expressly provided for by the terms of the plan.
“Where the pension plan is held to have given rise to legally enforceable rights, it appears that the general principles of contract construction, as applied to the specific provisions of the plan in question, govern the rights of the employee to recovery of his contributions upon termination of his employment, his rights on termination or modification of the pension plan, and the computation of his benefits. “By the terms of private pension plans, the right to benefits is ordinarily conditioned upon the completion of a certain period of service, attainment of a certain age, or a combination of these two factors. And usually it has been held that satisfaction of such conditions is a prerequisite to eligibility under the plan.”

A court is without authority to adjust the equities of a pension or retirement plan in derogation of the existence of express provisions in such a plan which plainly and unambiguously establish certain criteria for the vesting of employees’ right to benefits under the plan. This proposition has been specifically addressed by the Pennsylvania Supreme Court in Reilly v. Walker Bros., 425 Pa. 1, 229 A.2d 457, 462 (1967), where, in reversing a chancellor’s holding similar to the case at bar, the court said:

“The Chancellor does not have the authority to rewrite or amend a plan or make changes, in accordance with his own ideas, as to what is fair and equitable.”
⅜ ⅜ ⅜ ⅜ ⅝ ⅜
“There being no inequity or illegality in the terms of the Pension Agreement, it should be enforced in accordance with its terms and courts have no authority to re-draft the agreement to include people not entitled to benefit, to the detriment of those who are entitled to participate. See Schneider v. McKesson & Robbins, 254 F.2d 827 (2 Cir. 1958).”

We find the Chancellor was in error. To hold otherwise would set a dangerous precedent and could result in the emasculation of the terms of a written contract by a casual conversation between an employer and employee.

The Plaintiff has relied on Section 401(a) of the Internal Revenue Code and certain revenue rulings in support of his position. However, we find no correlation between the citations and the issues in the case at bar.

The Chancellor, in his memorandum opinion, found the Plaintiff was required to pay more than $400 in federal income taxes in 1972 and in 1973 because of contributions being made to the trust.

The proof does not support this finding. The Plaintiff was required to pay income taxes on $433.48 in 1972 and on $442.19 in 1973. This amount was allocable to the Plaintiff as income since it was the amount paid for life insurance of which Plaintiff’s wife was beneficiary.

The Chancellor also stated in his memorandum opinion: “During argument Defendant admitted that Plaintiff would be entitled to the proceeds of the life insurance policy upon his life, had the pension plan been on a contributory basis, that is, had Mr. Conlee contributed to the plan.” This statement seems to have been very persuasive in the Chancellor’s reaching his decision in the case.

Defendants, in their brief, do not concede that this statement was made and insist the Chancellor must have misunderstood what counsel said.

Argument of counsel is not incorporated in the bill of exceptions and is not before us for consideration. However, such statement, if made, would not be controlling in the case at bar.

The assignments of error are sustained. The decree of the Chancellor is reversed and the complaint is dismissed.

The costs of this appeal are taxed to the Appellee.

ROGER E. THAYER, Special Judge, concurs.

GODDARD, J., dissents.


author: DALLY, Commissioner.

text:
    Renrick Kennedy MARTIN, Appellant, v. The STATE of Texas, Appellee.
    No. 50921.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.
    James H. Martin, Dallas, for appellant.

      Henry M. Wade, Dist. Atty. Steve Wilen-sky and Paul D. Macaluso, Asst. Dist. At-tys., Dallas, Jim D. Vollers, State’s Atty., and David S. MeAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of aggravated robbery; the punishment is life imprisonment.

It is urged that there is a material variance between the allegation and the proof of the name of the complainant, and therefore the evidence is insufficient to sustain the conviction. The indictment alleges that the complainant’s name is DIANNA LYNCH SYKES; the transcript of the court reporter’s notes reflects that the complainant’s name is DINA JONES SYKES.

A middle name or initial may be disregarded; a material variance between the allegation and the proof of the middle name or initial is neither material nor fatal. See Dixon v. State, 2 Tex.App. 530 (1877); Delphino v. State, 11 Tex.App. 30 (1881); Hill v. State, 103 Tex.Cr.R. 580, 281 S.W. 1071 (1926); Williams v. State, 461 S.W.2d 614 (Tex.Cr.App.1971); Cepeda v. State, 489 S.W .2d 907 (Tex.Cr.App.1973); Swaim v. State, 498 S.W.2d 188 (Tex.Cr.App.1973). The variance between the allegation that the complainant’s middle name was Lynch and proof that her middle name was Jones is neither material nor fatal.

There is no evidence that the complainant was known by the name DIANNA SYKES. See Article 21.07, V.A.C.C.P.; Brown v. State, 171 Tex.Cr.R. 692, 353 S.W.2d 425 (1962).

The question presented is whether there is a material variance between the allegation of the complainant’s given name as Dianna and proof that it is Dina. The State argues there is not a material variance because the names Dianna and Dina are idem sonans.

The application of the rule of idem sonans, which means names are the same that have the same sound or sound the. same, varies from jurisdiction to jurisdiction. See 65 C.J.S. Names § 14, pp. 35-39, and 57 Am.Jur.2d, Names, Sec. 17, pp. 285-286. In Stresser v. Ress, 165 Neb. 858, 87 N.W.2d 619 (1958), it was noted that:

“Some jurisdictions recognize that the test for determining if names are idem sonans is whether although spelled differently, the attentive ear finds difficulty in distinguishing the two names when pronounced. Others disregard the sound of the names and predicate their conclusions solely on appearance if the names involved are written or printed. A still further class of adjudications takes a modified view that if the name as published both appears and sounds similar to the real name, then the doctrine is applicable.” 87 N.W.2d 619, at 622.

The appellant has directed our attention to the test commonly applied in this jurisdiction, which is set out in Pedrosa v. State, 155 Tex.Cr.R. 155, 232 S.W.2d 733 (1950), as follows:

“In the case of Chaverea v. State, 141 Tex.Cr.R. 592, 150 S.W.2d 241, 242, we restated the rule governing the doctrine of idem sonans, as follows: ‘The rule of idem sonans is stated as follows in Branch’s Ann.Tex.P.C., sec. 22, page 11: “If the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, or if the name as stated be idem sonans with the true name, the variance and misspelling is immaterial.” And in 30 TexJur., page 602, it is said: “This phrase means ‘of the same sound,’ and names are idem sonans if the attentive ear finds difficulty in distinguishing them when pronounced, or if common and long-continued usage has made them identical in pronunciation, irrespective of the rules of orthography. In other words, identity of sound is regarded as a surer method of measuring the similarity of names than identity of spelling, and so long as the names can be sounded alike ‘without doing violence to the power of the letters,’ any variation in orthography is immaterial, provided the misspelling does not transform the name into a wholly distinct appellation.” ’ ”

However, that the rule has been often articulated has not rendered easy its application; a review of the cases leaves the impression that the rule has not been applied with that fine degree of precision required to produce uniform results. A century ago in his opinion in Goode v. State, 2 Tex.App. 520, 524 (1877), Judge White noted in discussing the rule of idem sonans that, “The books abound in hairbreadth distinctions . . . we note that today the books appear to be in much the same condition. In Davis v. State, 88 Tex.Cr.R. 7, 224 S.W. 510 (1920), the Court stated the following:

“The question of variance on the theory of idem sonans has been a vexed one, not only in Texas, but it seems generally upon an examination of the cases. In fact, they are so much at variance with each other and so inharmonious they are practically incapable of reconciliation.”

In Strasser v. Ress, supra, the Nebraska Supreme Court reached the same conclusion as follows:

“It is profitless to attempt to cite or analyze the cases which have considered this doctrine. They are very numerous, irreconcilable and inconsistent. Some decisions conclude that certain names are within the doctrine while other courts, sometimes in the same jurisdiction, refuse to apply the rule to similar names which are indistinguishable.”

Also see Raven v. State, 149 Tex.Cr.R. 294, 193 S.W .2d 527 (1946); Jones v. State, 115 Tex.Cr.R. 418, 27 S.W.2d 653 (1930); Article 21.07, V.A.C.C.P.Ann. note 15; 1 Branch’s Penal Code (2d ed.), 31 Secs. 39, 40, and 41.

The reasons for the disharmony in the case law on idem sonans are not difficult to discern. The rule depends for its application on the intricacies and foibles of articulated speech; its application must suffer the consequences of accents, dialects, and the peculiarities of localized or personalized pronunciations. It is difficult in the preparation of an appellate record for a court reporter to accurately describe on a printed page the nuances of sound in a witness’s articulation of a name. Even on those occasions when a witness is asked to sound out a name phonetically, it is not easy to capture on paper the accent with which the witness spoke. In Dennington v. State, 98 Tex.Cr.R. 332, 265 S.W. 698 (1924), faced by a variance between the names Aleñe Trimmer and Eileen Trimier, the Court recognized the dilemma thus presented to an appellate court:

“When on the witness stand the young lady was asked by the state’s attorney how they pronounced her name and she answered, as appears, from the record, that they pronounced it Eileen and the other Trimier. This may have been satisfactory to those who heard, but we who can only read get no light from such testimony.”

And see Brady v. State, 122 Tex.Cr.R. 279, 55 S.W.2d 104. It is for these reasons that it has been said that adjudicated cases determining certain names to be or not to be idem sonans apply only to the particular instance in which the determination was made. See Loven v. State, 145 Tex.Cr.R. 260, 167 S.W.2d 515 (1943).

Inasmuch as appellate courts are now limited to reading a “cold” record, they are rarely in a position to make a truly informed determination of whether two names could be or were pronounced to sound the same. We conclude that the resolution of questions involving the rule of idem sonans should be limited primarily to the trier of the facts. A trial judge or jury, having heard the pronunciation of the names in question by the parties involved, is in the better position to determine whether or not the names are or can be sounded the same; Fowler v. State, 379 S.W.2d 345 (Tex.Cr.App.1964); Jones v. State, supra; we will therefore refrain from disturbing on appeal a jury or trial court determination that names in question are idem sonans unless evidence shows that the names are patently incapable of being sounded the same or that the accused was misled to his prejudice. All decisions in conflict with the rule announced are hereby overruled.

When the issue of idem sonans arises at trial, if the trial is before the court, it is a question of fact for the trial judge. If, before a jury, a fact issue requiring the application of the rule of idem so-nans is raised by the testimony, the court, at the request of the defendant, should instruct the jury to resolve the issue. Jones v. State, supra; Fowler v. State, supra; Rodriguez v. State, 363 S.W.2d 472 (Tex.Cr. App.1963); Weitzel v. State, 28 Tex.App. 523, 13 S.W. 864 (1890). Questions involving the rule of idem sonans must be raised in the first instance at trial. If the issue is raised for the first time on appeal, it will be treated as having been waived and will present nothing for review. Again, all decisions in conflict with the rule announced are hereby overruled.

In the case at bar, although the complainant was asked and did spell her name during the hearing of a pretrial motion on another matter, the appellant first brought the trial court’s attention to the variance between “Dina” and “Dianna” in a motion for directed verdict at the conclusion of the trial on guilt or innocence. The trial judge had heard the names pronounced and overruled the motion for directed verdict. Appellant did not request that the question of variance be submitted to the jury. The evidence does not show that the names “Dina” and “Dianna” are patently incapable of being sounded the same, or that the appellant was misled to his prejudice; therefore, we will not disturb the court’s ruling.

The judgment is affirmed.

Opinion approved by the Court

ONION, P. J., and ROBERTS, J., dissent.

      . Although the rule we have announced is broader, we note that it has often been said that the rule of idem sonans has been much enlarged by modem decisions to conform to the growing rule that a variance in a name, to be material, must be such as to have misled a party to his prejudice. See Gentry v. State, 62 Tex.Cr.R. 497, 137 S.W. 696 (1911); Ciulla v. State, 115 Tex.Cr.R. 193, 28 S.W.2d 541 (1930); Brady v. State, 122 Tex.Cr.R. 279, 55 S.W.2d 104 (1932); Jones v. State, 115 Tex.Cr.R. 418, 27 S.W.2d 653 (1930); 40 Tex.Jur.2d, Sec. 21, p. 395.

      . The only case cited by appellant is Pedrosa v. State, supra, in which the Court concluded that the names “Seanda” and “Senaida” were not idem sonans. We note that the uncontradicted testimony of an expert witness for the accused was that neither in English nor Spanish were the two names capable of being pronounced so as to sound the same. No such showing was made in the case at bar.