author: NORWIN D. HOUSER, Special Judge. SIMEONE, Chief Judge,

text:
    Tommy Lee DAVIS and Minnie Lee Davis, Plaintiffs-Appellants, v. Leander C. MOORE and Lloyd Simpson, Defendants-Respondents.
    No. 37301.
    Missouri Court of Appeals, St. Louis District.
    June 28, 1977.

      Goldstein & Price, Elmer Price, St. Louis, Tom Mendelson, University City, for plaintiffs-appellants.
    Wayman F. Smith, III, St. Louis, for defendants-respondents.
   NORWIN D. HOUSER, Special Judge.

Appeal by Tommy Lee Davis and his wife Minnie from an adverse judgment, entered upon a 9 to 3 jury verdict for defendants, in plaintiffs’ action for wrongful death of their 20-year-old son Tyrone. Defendants Moore and Simpson, police officers of the City of Kinloch, shot and killed Tyrone in an attempt to arrest him. Admitting that they fired upon Tyrone, defendants sought exoneration from civil liability for his death under § 544.190, RSMo 1969 on the ground that they were using the necessary means to effect the arrest of a fleeing felon.

According to defendants, whose testimony the jury chose to accept, these are the essential facts: Some time previously local authorities had issued five felony warrants for the arrest of Tyrone on charges of burglary, in the City of St. Louis; resisting arrest, St. Louis County; burglary and stealing, in Kinloch; resisting arrest, in Kinloch, and armed robbery with a dangerous and deadly weapon. Defendants, operating a police car, encountered Tyrone and his 16-year-old friend Walter West, at 2:30 or 3 o’clock in the morning at the intersection of Martin Luther King Street and Wesley Street in Kinloch. Officer Moore exited the police car on the passenger side and told Tyrone he was under arrest. Tyrone moved toward the driver’s side of the vehicle. Officer Simpson, the driver, stepped out of the police car. Tyrone had his right hand in his right front pocket. Moore told him to take his hand out of his pocket. Tyrone turned his back toward Moore and “made a motion as if to do something with whatever he had in his right front pocket.” Moore advised Tyrone “not to do it,” whereupon Tyrone began to run north along Martin Luther King Street. When Tyrone was 10 feet distant Moore fired a warning shot in the air, after yelling “Halt!” When Tyrone was 20-30 feet distant Moore took a low aim at Tyrone and fired twice. Moore denied that he was trying to kill Tyrone. He testified he was trying to prevent the subject from escaping. Simpson, at the same time and from the same position as Moore, fired once at Tyrone. Shot in hip, lung and heart, Tyrone turned into a vacant lot, where he died.

During the month preceding this occurrence Moore was called to an intersection in Kinloch where two other officers had arrested Tyrone. When he arrived Moore informed Tyrone that he was under arrest for numerous felony warrants active at that time. Tyrone responded, “You will have to kill me before you arrest me,” and then began to run. Moore ran after him but was unable to catch him. Moore did not fire any shots on that occasion. The next day Moore went to Tyrone’s residence, where he spoke to Tyrone’s father, telling him that Tyrone was wanted by Kinloch Police Department and numerous other departments for various felony offenses; that Tyrone had run away from Moore on the preceding day, and that if Tyrone continued running from police officers “he may be shot.”

Defendants’ main verdict-directing Instruction No. 5 follows:

“Your verdict must be for defendants, if you believe:

“First, that Leander Moore and Lloyd Simpson were duly appointed and authorized police officers of the City of Kinloch, and

“Second, that Lemandris Tyrone Davis was on the morning of September 23, 1972 wanted for the commission of one or more acts for which felony warrants were pending, and

“Third, that the officers met and attempted to arrest Lemandris Tyrone Davis on the morning of September 23, 1972, and told him of their intention to do so, and

“Fourth, that Lemandris Tyrone Davis did then flee from Officers Moore and Simpson, and

“Fifth, that officers Moore and Simpson used the necessary means to effect the arrest.”

Instructions Nos. 9, 10 and 11 told the jury that the officers “had a duty to arrest persons whom they had reasonable cause to believe guilty of a felony and to use such force as they may reasonably believe to be necessary to accomplish the arrest”; that “the presumption is that peace officers are in the lawful discharge of their duty in attempting to make arrests,” and that “a police officer may use all necessary means to effect an arrest after giving notice of the intention to make the arrest.”

The terms “necessary means” and “all necessary means” to effect an arrest, and “such force as they may reasonably believe to be necessary,” were not further defined m any other instruction.

Appellants claim Instruction No. 5 is erroneous because it did not define the use of the term “necessary means to effect the arrest”; that this language is extraordinarily general and indefinite; that its legal import should be explained or defined; that “the failure to do so impinges upon the law-giving function of the court and leaves to the jury a roving commission to reach decisions in darkness of established precepts controlling claims or defenses placed before them.” Specifically, appellants assert that in this context the word “necessary,” a variable term, should be applied in a strict and literal sense; that “necessary means” should be understood as the “sole means” or the “indispensable means” of effecting an arrest. Appellants point out that in Walsh v. Oehlert, 508 S.W.2d 222, 224 (Mo.App. 1974), this court declared the common law and Missouri law to authorize a police officer to use deadly force to apprehend an accused fleeing felon “as a last resort.” They cite The American Law Institute Restatement of Torts (2d) § 131(c) (1965) statement that existing law prohibits the use of deadly force unless “the actor reasonably believes that the arrest cannot otherwise be effected,” and that the use of force involving serious danger is privileged “only as a last resort when it reasonably appears to the actor that there is no other alternative except abandoning his attempts to make the arrest.” They contend that the use of force likely to take human life is recognized as necessary or excusable only when it is the sole, or indispensable means of arrest — the last resort — a last ditch measure without which the arrest could never be made, at any time or place, within the realm of reasonable probability and belief; that the jury should have been given a chance to consider the opportunity for a deferred arrest of Tyrone, who had lived in the small community of Kinloch all his life, and whose identity and place of residence were known to the police, by a proper instruction encompassing the element of last resort.

In instructing juries the general rule is that where the law is embodied in a statute it is sufficient to follow the language of the statute. There are situations, however, in which because of the generality of the terms of a statute, the peculiarity of its wording, or the use of technical terms it is liable to be misunderstood by a jury and cannot be administered without an added explanation. In such case it is not sufficient in declaring the law merely to follow the precise terms of the statute, without adding the explanation of those terms which an authoritative court has affixed to its terms. State ex rel. Little v. Donnelly, 9 Mo.App. 519 (1881), cited by appellants.

This is not such a situation. The words “necessary means” or “all necessary means” to effect an arrest have a common and well-understood meaning when considered in connection with a given factual situation. Because of the infinite number of different factual circumstances which may arise it is hardly possible to define these terms more precisely and yet give them universal application. They are nontechnical terms; they are not words of art. In their ready understandability in a given factual milieu they are comparable with the following terms, which courts have ruled useable in instructions without further definition: “brought on the difficulty,” State v. Bailey, 190 Mo. 257, 88 S.W. 733 (1905); “improper conduct,” State v. Barrington, 198 Mo. 23, 95 S.W. 235 (1906); “material facts,” State v. Davidson, 172 Mo.App. 356, 157 S.W. 890 (1913); “heat of passion,” State v. Gore, 292 Mo. 173, 237 S.W. 993 (1922); “reasonable provocation,” State v. Glenn, 262 S.W. 1030 (Mo.1924); “apprehended danger,” State v. Howard, 352 Mo. 410, 177 S.W.2d 616 (1944); “reasonable cause,” idem; “unlawful provocation,” State v. Graves, 352 Mo. 1102, 182 S.W.2d 46 (1944); “adequate warning,” Kinder v. Pursley, 488 S.W.2d 937 (Mo.App.1972). As noted in Kinder v. Pursley, supra, the terms “excessive speed,” “careful lookout,” “following too closely,” “adequate and timely warning,” “position of immediate danger,” etc., are not required to be defined in MAI instructions. If we accede to appellant’s request and require that the “last resort” concept be added to the language of the statute the next step will be a request to define the term “last resort.”

Both from the standpoint of the policeman on line duty who “in the first instance is the judge of the manner and means to be taken in making an arrest,” Manson v. Wabash R. Co., 338 S.W.2d 54, 61[17] (Mo.banc 1960), and from that of the ultimate trier of the facts applying common sense in judging the propriety of the means taken, it is better that the common, everyday wording of the statute (“all necessary means”) be left without further definition, flexible and adaptable to the factual situation presented.

Appellants’ second point is that Instruction No. 10 (“[T]he presumption is that peace officers are in the lawful discharge of their duty in attempting to make arrests”) is “an erroneous application of a rule of procedural practicality used here to relieve defendants of their burden of proof on their affirmative defense.” Appellants point out that Instruction No. 2 told the jury that the burden is upon defendants to cause the jury to believe the propositions necessary to support their defense that defendants used necessary force, and they argue that “a presumption of legality of the arrest conduct is completely at odds with the affirmative duty defendants had under law to furnish the proof on their ‘necessary means’ defense.”

“[T]he presumption is that peace officers are in the lawful discharge of their duty in attempting to make arrests.” State v. Nolan, 354 Mo. 980, 192 S.W.2d 1016, 1021[11] (1946). In State v. Nolan the officers were not attempting to make an arrest based upon an arrest warrant but on reasonable cause to believe that the fleeing person had committed a felony. Here defendants had five unexecuted and outstanding warrants for the arrest of Tyrone, based upon felony charges. This raised more than a presumption of regularity in initiating Tyrone’s arrest; these officers were under a clear duty as a matter of law to attempt the arrest.

Appellants misinterpret the quotation from State v. Nolan, embodied in Instruction No. 10, as a direction tb the jury that defendants’ conduct at the time Tyrone was killed is presumed to have been lawful. Such a direction would, as claimed, conflict with defendants’ burden to establish their affirmative defense, but Instruction No. 10 does not direct the jury that the shooting and killing of Tyrone is presumed to have been in the lawful discharge of duty, and it may not fairly be so interpreted. It merely tells the jury that in undertaking an arrest — in initiating action to effect an arrest — police officers are presumed to be in the lawful discharge of official duty. Instruction No. 10 relates to the lawfulness of the initiation of the arrest procedure by the officers. It does not relate to what happened during the course of the arrest. Under Instruction No. 2 the defending officers had the burden of sustaining their defense that they used necessary force — the necessary means to effect the arrest — a burden undiminished by Instruction No. 10. There was no error in giving Instruction No. 10.

Appellants’ third point: “Defendants’ counsel should not have been permitted to call and interrogate plaintiff-father concerning arrests of his decedent of which there had been no evidence.” To place this point in the proper setting we revert to Davis’ first appearance on the stand, testifying in his case in chief. On cross-examination Davis testified that his son Tyrone had been in trouble in one or two minor cases, but nothing serious. Defendants’ counsel then asked if he knew Tyrone was wanted on a charge of stealing; was charged with assault of a police officer in Kinloch; was wanted for burglary in the City of St. Louis; was wanted by Kinloch police for suspicion of armed robbery; was out on a $10,000 bond for robbery by means of a dangerous and deadly weapon; was charged with assault with intent to kill, and that on May 12,1971 Tyrone had pled guilty to resisting arrest. Davis denied having knowledge of the foregoing. Thereafter, at the conclusion of defendants’ case in chief, as the trial was drawing to a close, defendants’ counsel recalled Davis to the stand and asked him whether he knew that

(1) on October 8, 1970 his son had been arrested for attempted burglary, till tapping and destruction of private property;

(2) on the same date he was arrested as a fugitive from the St. Ann Police Department;

(3) on October 9,1970 Tyrone was arrested by the Kinloch Police Department and charged with being “a fugitive from Kin-loch, suspicion of assault with intent to kill;

(4) on October 10, 1970 Tyrone was arrested by the Kinloch Police Department, charged with robbery in the first degree by means of a dangerous and deadly weapon;

(5) on November 11, 1970 Tyrone was arrested, charged with resisting arrest and flight;

(6) on November 29, 1970 Tyrone was arrested as a fugitive by Kinloch Police Department, for suspicion of arson and breaking and entering;

(7) on October 15, 1969 Tyrone was arrested as a fugitive from Velda Village;

(8) on December 2, 1970 Tyrone was arrested by Kinloch Police Department, charged with robbery by means of a dangerous and deadly weapon.

Davis recalled three of the eight arrests. Asked whether he considered first degree burglary a minor offense he said he would. Asked whether he considered robbery by means of a dangerous and deadly weapon a minor offense he answered that he called it that “but it wasn’t minor.” Counsel concluded recross-examination by asking three questions to which objections were sustained: whether Davis was not telling the truth when he told the jury Tyrone had only been involved in minor offenses; whether he failed to tell the jury the truth about anything else, and whether he lied about anything else.

The questions concerning his knowledge of the eight arrests were asked and answers required over objections that there was no evidence on these matters; that it was highly prejudicial and inflammatory to inquire about them; that the inquiries were irrelevant to the issue and prejudicial.

At the conclusion of recross-examination defendants’ counsel had marked for identification an exhibit purporting to be a certified copy of the arrest record of Tyrone Davis (Exhibit E), and offered it in evidence without producing the custodian of the record to identify it. On objection on the ground of hearsay Exhibit E was not received in evidence, the court reserving its ruling on the offer. Later counsel for defendants stated he had sent for Mrs. Dodd, custodian of the records, but the trial was concluded without her appearing and testifying and without any ruling on the admissibility of Exhibit E. Accordingly, there was no evidence that the alleged arrests were actually made. Nevertheless, counsel for defendants repeatedly phrased his questions so as to assume that in fact the arrests were made. “It is, of course, improper and sometimes prejudicial to phrase questions on cross-examination * * * so as to assume as fact matters of which there is no evidence, Lonnecker v. Borris, Mo., 245 S.W.2d 53, 56[3, 4]; State v. Carroll, Mo., 188 S.W.2d 22, 24; III Wigmore, Evidence, § 780, pp. 135-137 (3rd ed. 1940), and a new trial may be granted for persistent interrogation by improper questions when significant and improper inferences are created. Ryan v. Campbell ‘66’ Express, Mo., 304 S.W.2d 825, 828; Moore v. Shelly Motors, Inc., Mo.App., 225 S.W.2d 953; Anno., 109 A.L.R. 1089 (1937).” Hawley v. Merritt, 452 S.W.2d 604, 610 (Mo.App.1970). The plain inference to be drawn from continually recounting Tyrone’s supposed arrests on numerous occasions, on serious criminal charges, implying that he was a chronic offender constantly in the toils of the law and a fugitive from justice, was that Tyrone was an unworthy person who got what he deserved.

Furthermore, the several supposed arrests were matters collateral to the issues in dispute. There was no issue as to these arrests, which were entirely irrelevant and immaterial to the question whether defendants used the necessary means to effect the arrest of Tyrone. The trial court should have sustained the numerous objections to the questions relating to the eight arrests. Additionally, having cross-examined Davis on collateral matters defendants were bound by the answers given by him, 29A Mo. Digest Witnesses 405(1), and should not have been permitted to further pursue the subject on recross-examination, or offer evidence to contradict Davis’ answers. Wiesemann v. Pavlat, 413 S.W.2d 23 (Mo.App.1967).

The issue framed by the pleadings put defendants on trial. The way the case was tried, however, the tables were turned and deceased and his father were effectively placed on trial. To justify their arrest of Tyrone defendants relied upon the existence of five outstanding unexecuted warrants for his arrest on five felony charges. The proper, recognized method of making proof and the best evidence would have been to subpoena the warrants and their custodian and introduce the warrants in evidence. Instead of pursuing this conventional method of proving this fact defendants subpoenaed three of the victims of the crimes, and to the great prejudice of plaintiffs placed the victims on the stand and had them testify in detail concerning the facts and circumstances surrounding the crimes, and introduced oral testimony that arrest warrants were issued on these five charges. Then, with a background of extensive original cross-examination of Davis with respect to arrests, defendants’ counsel recalled him at the end of the trial, immediately before the instructions were read to the jury, and paraded before the jury the litany of unproved arrests above enumerated.

The real issue in the case — whether defendants used the necessary means to effect the arrest or used unnecessary force — was thus obscured and de-emphasized; deceased and his father were placed on trial in place of defendants. Plaintiffs were thereby prejudiced in the presentation of their case and effectively deprived of a fair trial.

Other alleged errors in empanelling the jury and in defendants’ closing argument need not be considered in view of the occurrence of reversible error in the recross-examination of Tommy Lee Davis. On retrial these other incidents will not likely reoccur.

Reversed and remanded for a new trial.

SIMEONE, C. J., concurs in separate opinion.

STOCKARD, Special Judge, Concurs.

SIMEONE, Chief Judge,

concurring.

I concur that this cause must be reversed and remanded for a new trial but add a few comments concerning what this case does and does not hold. The parties did not raise, nor does the opinion deal with, the constitutionality of § 544.190, RSMo 1969, Mattis v. Schnarr, 547 F.2d 1007 (8th Cir.1976), judgment vacated, Ashcroft v. Mat-tis, -U.S.-, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977). Nor does the opinion deal with the complex problem of the use of deadly force by police officers in effecting an arrest for a felony, A Model Code of Pre-ar-raignment Procedure, § 120.7 (1975); S.B. 60, The Criminal Code of Missouri, effective January 1, 1979, § 563.046. The opinion only deals with trial errors of parading before the jury the “litany of unproved arrests . . . .” For the reasons explained in the opinion by Houser, Sp. J., on that issue I concur. Other matters not raised or determined by the original opinion must await another day.

      . “If, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest.”


source: Caselaw Access Project

author: REINHARD, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Larry CURBY, Defendant-Appellant.
    No. 37793.
    Missouri Court of Appeals, St. Louis District.
    June 28, 1977.
    Whitfield, Montgomery & Walton, Elbert A. Walton, Jr., St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, William F. Arnet, Jefferson City, George A. Peach, Circuit Atty., Richard G. Callahan, St. Louis, for plaintiff-respondent.
   REINHARD, Judge.

The defendant was convicted of assault with intent to do great bodily harm without malice and sentenced to a term of five years imprisonment according to the verdict of the jury. On appeal, he raises four points upon which he seeks reversal.

The evidence shows that on the night of December 30, 1974, the defendant, Larry Curby, and three friends, Sylvia Barge, Joe Harrell and Caroline Richardson, were walking south on Euclid Avenue in St. Louis. At approximately 8:30 p. m. Curby’s group passed a group of three men walking the other way on the same side of the street. Within seconds after the two groups passed, a violent encounter took place on the other side of the street between Curby and his companions, and Clayton Campbell. Campbell was punched and kicked by Curby’s group and sustained a concussion, multiple facial lacerations, and innumerable fractures of facial bones around the cheeks and nose, resulting in hospitalization for a period of time and two major operations.

After the assault, Curby’s group walked away from Campbell who lay helplessly on the sidewalk. Thereafter the three men, Frederick Sudekum, III, Michael J. Ma-cLeod, and William J. Mitchell, stopped a passing police van. They gave the police a description of Curby’s group, and the police picked up defendant and his three companions a short time later.

At trial, Curby did not deny that he had punched Campbell, but he testified that he had assaulted Campbell in defense of his companion, Caroline. Curby claimed that shortly after passing the three men, Caroline and Sylvia crossed the street. He followed a few paces behind, while Harrell was delayed by a passing car. Just as Caroline and Sylvia reached the opposite sidewalk, Campbell appeared from nowhere and grabbed Caroline by her neck and arm, tearing her clothing. To repel this attack, Curby claimed, he began punching Campbell. When Harrell finally reached the scene, he grabbed Campbell and threw him to the ground. Curby said that Campbell after hitting the ground grabbed Caroline’s leg, and she began kicking him to force him to release her. (Curby specifically denied that he had kicked Campbell.)

Campbell stated that after he got off work on December 30 he stopped at a tavern for about three hours and had four or five beers. He said he was not drunk when he left. After leaving the tavern, he walked south on Euclid to catch a bus. He did not see his assailants and could only remember crying for help. He testified that he did not recall seeing anybody, saying anything to anybody, doing anything to anybody, or being attacked by anybody. He could remember only being placed in an ambulance and waking up in the hospital sometime later. The victim’s treating doctor testified that the victim’s loss of memory was consistent with his head injuries.

The three men who passed Curby’s group each testified that they did not see how the altercation between Curby’s group and Campbell began. They said their backs were turned, and they turned around only after hearing a cry for help. They saw Campbell being punched, thrown to the ground, and kicked. Defendant did not call any of his friends to testify.

First, defendant charges that the court erred in failing to direct a verdict for him, in that there was no conflict in the evidence as to his justifiable assault defense (defense of another). Defendant argues that when there is no conflict in the evidence disputing the justifiable assault, the court should direct a verdict for the defendant. He points out that none of the eyewitnesses saw either how the assault began or what provoked it, and that the victim was unable to remember anything which would contradict his defense.

Once the issue is raised, the burden of proof is on the state to prove the defendant did not act in the lawful defense of another. State v. Tindall, 496 S.W.2d 267 (Mo.App.1973). This does not mean, as defendant contends, that, in order to avoid a directed verdict, the state is required to come forward with additional evidence after the defendant has produced evidence of defense of another. State v. Willett, 539 S.W.2d 774 (Mo.App.1976).

Rarely will the defense of another be declared as a matter of law and taken from the jury. This would occur as a rule only when the state’s undisputed evidence proves the defense. State v. Rash, 359 Mo. 215, 221 S.W.2d 124 (1949); State v. Willett, supra. That is not the case here. Only when all the evidence clearly and undisput-edly points to defense of another is the defendant entitled to a directed verdict. Where the evidence is conflicting or of such a character that different inferences might reasonably be drawn therefrom, it is generally a question of fact for the jury to determine whether the accused acted in defense of another. State v. Jackson, 522 S.W.2d 317, 319[1] (Mo.App.1975); State v. Rash, supra; State v. Willett, supra.

Based on the evidence, we cannot declare as a matter of law that what occurred here was defense of another to the exclusion of the state’s theory of the case. The only evidence of defense of another in this case is the defendant’s own testimony. He is mistaken in his contention that all of the evidence on this point is undisputed and clear. In this case it was for the jury to believe or disbelieve the defendant’s evidence tending to exculpate him. State v. Ross, 371 S.W.2d 224, 227[4] (Mo.1963); State v. Tourville, 295 S.W.2d 1 (Mo.1956).

The evidence in this case is such that a jury could find defendant’s story inconsistent with the undisputed facts presented by the state. The very brief period of time which elapsed from the time Curby’s group passed the pedestrians to the time of the commission of the assault on the other side of the street, the severity and magnitude of the force used against the victim, the action of the assailants in walking away from the incident without calling the police or aiding the man they had badly beaten, and the testimony of the victim that he did not recall seeing anyone, all raise questions which the jury could consider in determining the truth or falsity of defendant’s testimony.

Defendant, for his second point, contends that the trial court erred in denying his request for a mistrial. During the defendant’s opening statement, which was reserved until after the state presented its case, defense counsel said:

“Basically, what we are going to do is outline to you some evidence as to what occurred on that night from the persons who saw it all, the accused. Agreed, three people walked down the street in a northerly direction. Agreed, four people, including two men and two women, walked down the street in a southerly direction. Agreed, they came into contact with a Clayton Campbell. Agreed that they hit him with fists — ”

At this point, the prosecutor made the following objection:

“Judge, I’m going to object to this portion of the statement. Defense counsel has filed statements with the court indicating the defense would be alibi.”

Argument on the objection occurred outside the hearing of the jury. The prosecutor’s basis for the objection was that once a defendant has stated his intention to rely on alibi, he is committed to it and no evidence tending to show another defense is admissible. The court overruled the objection.

Defendant’s attorney requested a mistrial because of the prosecutor’s reference to the alibi defense. He stated that any comment on the disclosure, through discovery, of his intent to rely on the defense of alibi is only proper to impeach a witness on cross-examination. The court denied his request for a mistrial. There was no request to the court to admonish the jury.

Defendant had disclosed his intention to present an alibi in response to a motion for disclosure filed by the state under Supreme Court Rule 25.34. Defendant’s disclosure stated: “5. The defendant intends to rely on the defense of alibi, being present at or near Fountain and Euclid Street in the City of St. Louis and State of Missouri at the time of the alleged offense, witnesses to which include: (seven witnesses were named).”

The state claims that once the defendant has stated an intent to rely on alibi under Supreme Court Rule 25.34, he is required to stay with that defense and cannot shift to another at trial. This argument was rejected by the United States Supreme Court in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). In upholding the Florida disclosure rule, which is similar to Supreme Court Rule 25.34, the court stated: “Nothing in such a rule requires the defendant to rely on an alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice.” 399 U.S. at 84, 90 S.Ct. at 1897.

The defendant claimed that the state’s objection put before the jury information so prejudicial to his case as to require the declaration of a mistrial. The lack of merit in the state’s objection does not alone make the objection prejudicial. Nor is it necessary for purposes of our decision to determine whether the objection was made in good or bad faith since that determination is within the sound discretion of the trial court. State v. Tettamble, 394 S.W.2d 375 (Mo.1965). We do not consider, however, whether the comment is so prejudicial that it presented grounds for a mistrial regardless of good or bad faith.

This question has not yet been faced by the appellate courts of this state, although the problem has arisen in slightly different form in other jurisdictions. For example, some courts have permitted the state to disclose the defendant’s original notice of alibi when the defendant has proceeded with an alibi defense at trial on the basis of a subsequently amended notice of alibi. Welsher v. State, 28 Wis.2d 160, 135 N.W.2d 849 (1965); People v. Nickopoulous, 26 Mich.App. 297, 182 N.W.2d 83 (1970). When, however, the defendant has filed a notice of alibi but does not put the alibi into issue at trial, the state is prohibited by some courts from commenting on the notice of alibi. State ex rel Simos v. Burke, 41 Wis.2d 129, 163 N.W.2d 177 (1968); State v. Coceo, 73 Ohio App. 182, 55 N.E.2d 430 (1943).

In this case, the state, perhaps unwittingly, drew the jury’s attention to the defendant’s notice of alibi before the defendant had presented his case. During the defendant’s opening statement, which followed the state’s case, it appeared the defendant did not intend to rely on an alibi defense. Under such circumstances, disclosure of the defendant’s notice of alibi was clearly erroneous. The ability of the defendant to relate his chosen defense at trial was significantly undermined as a result of this disclosure. The state claims that it was necessary to disclose the notice in order to specify the grounds for its objection. While we agree that specifying one’s grounds is required, the state should have recognized the prejudice involved and stated its grounds out of the hearing of the jury. The remarks were so prejudicial that their effect could not have been erased by an admonition by the court, and reversible error was committed in not granting a mistrial.

The defendant’s final two points on appeal involve objections to instructions given by the court. He contends that Instructions No. 9 (a converse instruction) and No. 12 (justifiable assault instruction) failed to comply with approved MAI-CR forms 3.08 and 2.40. Instruction No. 9 did not follow any of the MAI-CR instructions as to converse instruction but was similar to the one tendered by the defendant. No. 12 followed MAI-CR 2.40 but defendant claimed that Paragraph 5 and one of the options in Paragraph 4 should have been added to the instruction because of the evidence.

On retrial, the court should submit a converse instruction, if requested by defendant, following one of those approved in MAI-CR. A justifiable assault instruction is part of the law of the case and if the evidence at retrial requires the submission of that issue, the court should submit an instruction based on the evidence following MAI-CR.

Judgment reversed and cause remanded for a new trial.

McMILLIAN, P. J., and STEWART, J., concur.

      . Justifiable assault, which includes self-defense and defense of another, like justifiable homicide, § 559.040(2), RSMo.1969, is a “special negative defense”. Notes following MAI-CR 2.40. We therefore treat them the same for purposes of determining the burden of proof. Notes following MAI-CR 2.04, p. 2-9.


author: FONES, Justice.

text:
    Perry J. BROWN et al., Appellants, v. George H. HIPSHIRE et al., Appellees.
    Supreme Court of Tennessee.
    June 13, 1977.
    Jerry P. Black, Jr., Knoxville, for appellants.
    Philip P. Durand, Ambrose, Wilson, Lock-ridge & Grimm, Joseph M. Tipton, Ritchie & Tipton, Knoxville, for appellees.
   OPINION

FONES, Justice.

The issue presented by this interlocutory appeal is whether the filing of a tort action tolls the statute of limitations to enable a defendant to file a counterclaim where the limitation period expires between the filing of the original complaint and the filing of the counterclaim.

The alleged tort occurred on August 27, 1975. Plaintiffs, Hipshire and Johnson, sued defendant, Brown and others, on July 28, 1976. Brown was served with process on August 3, 1976. He answered denying liability on September 7, 1976. Brown moved to amend his original pleading to assert an omitted counterclaim under T.R. C.P. 13.06 on November 10,1976, which was allowed over opposition of plaintiffs, and filed on December 10, 1976.

The counterclaim asserted a cause of action for assault and battery and liability pursuant to 42 U.S.C. § 1983. It was alleged that Hipshire and Johnson were acting in the capacity of Knox County detectives under color of state law when the acts complained of occurred.

Thereafter, Hipshire and Johnson plead the statute of limitations, T.C.A. § 28-304, in bar of Brown’s claim. The trial judge sustained their plea and granted an interlocutory appeal, adding, sua sponte insofar as the record discloses, the issue of whether or not Tennessee courts have subject matter jurisdiction over civil rights actions authorized in 42 U.S.C. § 1983.

Brown acknowledged that Lovejoy v. Ahearn, 223 Tenn. 562,448 S.W.2d 420 (1969) controls the statute of limitations issue adverse to his contention but insists that we should overrule that decision. First, it is said that the policy of protecting litigants from stale claims, underlying statutes of limitation, is not served by barring a defendant’s counterclaim where plaintiff’s claim is timely filed but the statute runs before defendant’s counterclaim is asserted. And second, there is no reason for tolling the statute of limitations to allow set-off and recoupment in contract actions while denying that grace period to tort claimants. The arguments in support of these contentions are apparently derived from a law review article critical of Lovejoy; 42 T.L.R. 291 (1975).

The policy undergirding limitation of actions is legislative policy, not judicial policy. At common law there were no fixed periods for the commencement of actions, and in the case of torts, the action was limited by the duration of the life of either party. 51 Am.Jur.2d Limitation of Actions, § 1, 588 (1970).

In the early years of the enactment of statutes of limitations, courts were hostile to their enforcement.

“In time, however, the legislative policy came to be recognized as controlling, and the duty of the courts to give effect thereto came to be fully recognized.” 51 Am.Jur.2d at 594.

An excellent judicial commentary on limitations of actions may be found in Wood v. Carpenter, 101 U.S. 135, 25 L.Ed. 807 (1879):

“Statutes of limitation are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go together.” 25 L.Ed. at 808.

Among the actions that must be commenced within one (1) year after accrual are those for injuries to the person and civil action for compensatory or punitive damages, or both, brought under the Federal Civil Rights Statutes. T.C.A. § 28-304.

In Di Norscia v. Tibbett, 11 Terry 118, 50 Del. 118, 124 A.2d 715 (1956), plaintiff filed a tort action four (4) days before, and defendant was served one (1) day after, the statute of limitations ran. Defendant filed a counterclaim and responded to plaintiff’s plea of the statute of limitations with the contention that by bringing the action plaintiff should be deemed to have waived the defense of the statute of limitations as to any claim of defendant which arose from the same accident and was not barred at the time plaintiff commenced his suit.

The Supreme Court of Delaware observed that defendant’s claim was an “action” seeking affirmative relief for his personal injury, notwithstanding the fact that it was presented by way of counterclaim. Further responding to defendant’s contention the Court said:

“We would be engaging in judicial legislation, I think, if we read into § 8118 by construction one period of limitations for claims for personal injuries asserted in the form of original actions and a different period of limitations for the same types of demand when asserted by way of counterclaims. Since there is no statutory exception or tolling provision applicable to counterclaims seeking affirmative relief, I do not think that the Court is permitted to accomplish a modification of the statute of limitations by indulging in the judge-made rule of waiver urged by the defendant.” 124 A.2d at 717.

The Supreme Court of Connecticut, addressing the identical issue involved here in Consolidated Motor Lines v. M. & M. Transp. Co., 128 Conn. 107, 20 A.2d 621 (1941), said:

“[a] counterclaim of the nature of that before us is so far to be regarded as an independent action that the Statute of Limitations applies as it would were a separate suit brought.” 20 A.2d at 621.

Subsequent cases in both Delaware and Connecticut affirm Tibbett and Consolidated Motor. See Floyd v. Ballenger, 258 A.2d 911 (Del.Super.1969); and Seletsky v. Roy, 23 Conn.Sup. 139, 177 A.2d 805 (1961).

We agree that the nature of the action asserted by Brown is not stripped of its character as an independent action by acquiring the label counterclaim. In our view, it is not the prerogative of the courts to create an exception by grafting upon the statute a waiver or a tolling provision for the benefit of counterclaimants in tort actions.

In Phillips v. Furniture Mfg. Co., 168 Tenn. 481, 79 S.W.2d 576 (1935), Mr. Justice Chambliss said:

“The general rule that the courts are without power to add other exceptions in statutes to those made by the Legislature applies to statutes of limitation, as well as to others.” 168 Tenn. at 488, 79 S.W.2d at 578.

Illinois and New York have statutory exceptions permitting the filing of counterclaim after the period of limitations expires, where the complaint is timely filed. See, Carnahan v. McKinely, 80 Ill.App.2d 318, 224 N.E.2d 297 (1967); and Styles v. Gibson, 27 A.D.2d 784, 277 N.Y.S.2d 245 (1967).

Our research reveals that seven (7) jurisdictions including Tennessee, refuse to toll or waive the period of limitations for late filed counterclaim and six (6) jurisdictions hold such actions are not barred. However, the six (6) jurisdictions include Illinois and New York so that only four (4) states have adopted judge-made exceptions to the statute.

We reject the argument that because this Court held in Lewis v. Turnley, 97 Tenn. 197, 36 S.W. 872 (1896) that the statute of limitations would not operate to bar a defendant’s plea of set-off, that the same rule should be applied in tort cases.

In our opinion there is a valid distinction between the defensive plea of set-off involved in Lewis v. Turnley, supra, and the wholly independent tort action under consideration here. We think the essence of the holding in Lewis v. Turnley, supra, is to be found in the following sentence:

“It is admitted by defendant that more than six years had elapsed from the date of the contract to the filing of the cross bill in which this counterclaim was first presented, but the insistence of defendant is that since this defense is evolved from the consideration of the original contract, [that] the filing of the original bill saves the bar of the statute in favor of the defendant, and such contention we hold to be the law.” (Emphasis added) 97 Tenn. at 203, 36 S.W. at 873.

Recoupment is an equitable right of a defendant to a deduction in the amount of the plaintiff’s recovery and is only available as a defensive plea. Set-off, while originally a purely defensive plea has been expanded, so that admittedly, there are some cases where a defendant in a contract action asserts as a set-off a claim that could also be the subject of an independent action. But, in our opinion, it does not follow that this occasional similarity between a set-off in a contract action and a counterclaim in a tort action requires tolling of the limitation period for a tort counterclaim that is in no circumstances a defensive plea. The courts, in allowing all defensive pleas available to defendants, are not grafting exceptions upon statutes of limitation governing the commencement of independent actions.

In this case, twenty-four (24) days of the limitation period remained when Brown was served with process. His answer was filed thirty-five (35) days after service of process, unaccompanied by a counterclaim. Sixty-four (64) days after answering he moved for leave to file an omitted counterclaim, and so far as this record reveals, made no factual assertion whatever to show that his failure to file at the time of his first pleading occurred through oversight, inadvertence or excusable neglect as required by T.R.C.P. 13.06.

In Giambuttista v. Bradlees Incorporated, 130 N.J.Super. 381, 327 A.2d 256 (1974), defendant answered plaintiff’s suit for assault and battery within the two (2) year period of limitation but sought to file a counterclaim three (3) months after the period expired.

The Supreme Court of New Jersey reserved judgment on a factual situation where plaintiff files within the period but so late that defendant has no opportunity to answer and counterclaim prior to the bar of the statute. However, the Court held that defendant’s counterclaim was barred because the statute had run and there was no, “persuasive evidence to establish oversight, inadvertence or excusable neglect” as required by its civil rules in case of an omitted counterclaim.

Thus, it is doubtful that any jurisdiction would extend the lifeline to Brown, who has so negligently responded to the stimulus of the statute of limitations. It would be inappropriate for us to address the second issue certified to this Court by the trial judge.

The judgment of the trial court dismissing Brown’s counterclaim is affirmed and the cause is remanded for further proceedings. The costs of this appeal are adjudged against defendant Perry J. Brown.

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


author: HARBISON, Justice.

text:
    Danette LOOPE, Petitioner, v. GOODINGS MILLION DOLLAR MIDWAYS, INC., Respondent.
    Supreme Court of Tennessee.
    June 20, 1977.

      Douglas L. Dutton, Shields, Rainwater & Dutton, Knoxville, for petitioner.
    Calvin N. Taylor, W. P. O’Neil, Knoxville, of counsel, Cheek, Taylor & Groover, O’Neil, Parker & Williamson, Knoxville, for respondent.
   OPINION

HARBISON, Justice.

Petitioner sustained injuries from an electrical shock while attempting to board a midway ride operated by the respondent at a fair in Knox County.

At the trial of companion actions brought by petitioner and her husband Barry Loope, respondent admitted liability for compensatory damages, and the jury returned a verdict awarding $15,000.00 in compensatory damages to petitioner and $7,000.00 to her husband. The trial court declined to grant a remittitur, and on appeal the Court of Appeals affirmed the compensatory award. Under these circumstances, the amount of the compensatory award is all but conclusive in this Court, there being no claim of jury misconduct or similar impropriety. See Lambert Bros. Inc. v. Larkins, 200 Tenn. 674, 296 S.W.2d 353 (1956); Murphy Truck Lines v. Brown, 203 Tenn. 414, 313 S.W.2d 440 (1958). Accordingly cross-assignments of error filed in this Court by the respondent as to the compensatory damages awarded to petitioner and her husband are overruled.

In addition to seeking compensatory damages, petitioner Danette Loope also claimed punitive damages, alleging willful and wanton negligence on the part of the operator of the ride. The jury awarded $35,000.00 in punitive damages which the trial judge approved on post-trial motion. The Court of Appeals, however, found the evidence to be insufficient to sustain an award of punitive damages, and, in effect, directed a verdict for respondent as to that issue.

Our review of the evidence leads us to a different conclusion as to the liability of respondent for punitive damages. In operating its midway rides, of course, respondent owed the highest degree of care to its patrons, or that degree of care which the most prudent person would be expected to exercise in the maintenance, inspection and repair of such equipment. See Tennessee State Fair Assoc. v. Hartman, 134 Tenn. 159, 183 S.W. 735 (1915); Lyons v. Wagers, 55 Tenn.App. 667, 404 S.W.2d 270 (1966).

Petitioner sustained electrical shock when she touched a metal handrail while at the same time standing on wet ground, as she was preparing to enter one of the cars or cages of the midway ride. Subsequent investigation revealed that a short had occurred in the electrical circuits supplying current to the lights on the unit. The operator of the ride had himself received a slight shock or sting, as he described it, before petitioner was injured. He also testified:

“Q. Was anybody else shocked?
“A. Yeah, a little sting, bumble bee sting, and that’s all.
“Q. What caused that bumble bee sting?
“A. Well, the thing was shorted out, the cupping, commutator cupping.
“Q. How many other people had received that sting, that you recall, before Mrs. Loope was shocked?
“A. A few. I wouldn’t know. A few. I couldn’t keep up with them.”

Apparently the injuries to the other patrons were not serious, but it seems clear from the foregoing testimony that the operator of the ride was on notice, at the time when petitioner was sold a ticket, that some sort of short had developed in the electrical circuits, causing shock both to himself and to others.

Taking the proof most favorably to the petitioner, as must be done when considering a directed verdict, therefore, we are of the opinion that there was sufficient evidence of gross negligence or conscious indifference to the safety of patrons to justify submission of the issue of punitive damages to the jury in this case. As stated in Phelps v. Magnavox Company of Tennessee, 497 S.W.2d 898, 906 (Tenn.App.1972), conduct by one charged only with ordinary care might amount to simple negligence, but when done by a person charged with a higher degree of care, such as a common carrier or a supplier of electricity, that same conduct could amount to gross negligence or to willful and wanton conduct justifying an award of punitive damages. We believe that it was proper for the trial judge to submit the issue to the jury for its consideration, the award of such damages being, of course, discretionary with the jury. No exception has been taken to the instructions given to the jury by the trial judge on this issue.

Accordingly we are of the opinion that the Court of Appeals was in error in directing a verdict on the issue of punitive damages. On the other hand, however, we find that the amount awarded by the jury was highly excessive, and much greater than we feel justified in approving.

The amount to be awarded as punishment in a civil action, of course, must depend upon all of the circumstances. As stated by the Court of Appeals in the case of Klein v. Elliott, 59 Tenn.App. 1, 35, 436 S.W.2d 867, 883 (1968):

“Each award of damages must rest upon the peculiar facts of the particular case. The actions of the defendants herein were not so totally reprehensible as to warrant devastating punishment. The verdict of the trial jury was excessive.”

In that case a jury had awarded $27,-500.00 in punitive damages. This was reduced by the trial judge to $3,500.00, and his action was affirmed by the Court of Appeals.

In the present case the trial judge approved the entire award of punitive damages, but the Court of Appeals disapproved it and disallowed it in its entirety.

In the recent case of Whittington v. Grand Valley Lakes, Tenn., 547 S.W.2d 241, released at Jackson on April 25, 1977 for publication, a similar situation had occurred. A trial jury had awarded $1,500.00 in compensatory damages and $2,500.00 in punitive damages. The Court of Appeals in that case had held that the proof did not support an award of either compensatory or punitive damages, and remanded the case for assessment of nominal damages. This Court reversed, finding that actual damages had been shown in the evidence, although in that case the defendant had at its expense repaired the damages before trial. Plaintiff failed to prove any additional amount of compensatory damages, but this Court held that the amount previously paid by the defendant demonstrated that actual damages had occurred and that the plaintiff would have been entitled to a verdict for compensatory damages had it not been for the restitution made by the defendant. Under those circumstances a predicate for punitive damages was found to exist, and this Court reinstated the award of punitive damages.

In the present case we are not prepared to reinstate the punitive damages award in anything like the amount originally allowed in the trial court. In our opinion the sum of $5,000.00 would be an ample award of punitive damages under the facts and circumstances shown in this case, and accordingly we suggest a remittitur of the punitive damages awarded by the jury to the sum of $5,000.00. If petitioner is willing to accept said remittitur, then the judgment of the trial court will be modified accordingly. If the petitioner is unwilling to accept the suggested remittitur, the cause will be remanded to the trial court for a new trial as to the issue of punitive damages only.

The judgment of the Court of Appeals, affirming the award of compensatory damages, is affirmed. Its judgment with respect to punitive damages is set aside, and the award of punitive damages, to the extent of $5,000.00, is approved by this Court, subject to the acceptance of petitioner as aforesaid. Counsel for petitioner will notify the Clerk of this Court and adversary counsel within ten days from the release of this opinion as to whether the suggested remittitur is accepted. Costs in the trial court are taxed to respondent. All costs on appeal will be divided equally between the parties.

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


text:
    Oakley GAW, d/b/a Gaw’s Factory Outlet Store, and Aetna Insurance Company, Appellants, v. Robert H. RAYMER, Appellee.
    Supreme Court of Tennessee.
    July 5, 1977.

      Levine & Rosenblum, Lawrence E. Levine, Gary A. Brewer, Nashville, for appellants.
    Daniel H. Rader, III, L. Dean Moore, Cookeville, for appellee.
   HARBISON, Justice.

The only issue involved in this workmen’s compensation case is the correct method of computing the average weekly wage of the injured employee under the provisions of T.C.A. § 50-902(c).

The employee worked for the appellant, Oakley Gaw, on a part-time basis. He was regularly employed at another job at which he worked a regular 40-hour week at a rate of $3.00 per hour.

The employer, Mr. Gaw, was engaged in a house building and construction operation and also owned and operated a store, known as Gaw’s Factory Outlet Store, in which lawnmowers were sold and serviced. Mr. Gaw testified that appellee had formerly operated a small shop at home in which he worked on lawnmowers, and from time to time in the past Mr. Gaw would send lawnmowers from his store to the appellee’s home for service or repair. Later, appellee worked at a service station, where he also did part-time work on lawnmowers. Mr. Gaw testified:

“Then in the meantime, he approached me that he would like to come to my place of business. I had a little shop there and serviced my mowers there and we agreed on a certain amount, which was $2.00 an hour, which has been stated and that’s how it came about.”

Appellee started to perform this work for Mr. Gaw in 1971, but “primarily” worked for him in 1972 and 1973. The record also shows that from time to time, during slack seasons, the employee would lay carpet or do other odd jobs for the employer either in the store or at houses being built by Mr. Gaw. There was no itemization of his earnings according to the type of work performed; he was simply paid a flat rate of $2.00 per hour.

The employee worked at his regular job five days each week, Monday through Friday, from 3:30 p. m. until midnight. He did not work there on Saturdays, and his testimony was that he did most of his work for Mr. Gaw on Saturdays, coming to work at 7 or 8 o’clock in the morning and working for nine or ten hours. He also worked during the morning hours of his regular working days, however, depending upon how much work was carried over from the preceding Saturday. He testified that he came by the employer’s store almost every day during the entire year to see whether or not there was any work available for him.

On July 3, 1973, while repairing a lawnmower, the employee sustained an injury to his left eye, resulting in the loss of sight therein. There is no question but that he is entitled to workmen’s compensation benefits for the loss of an eye, together with necessary medical and other incidental expenses, which are not questioned on appeal.

It is undisputed that during the fifty-two weeks prior to the date of his injury, the employee earned a total of $802.50 from this second or part-time job with appellant, representing 401.25 hours at $2.00 per hour. The only hourly records kept, however, were notes made by the employer in a tablet or note pad, in which the number of hours worked by the employee each day were written down. Unfortunately he had lost the notes kept during the year prior to the accident. The record therefore does not show the exact number of days or weeks during which the employee performed work for wages. Only a single page from the earlier tablet or pad was torn out and filed as an exhibit, showing that the employee worked two hours on March 11, 1972, two hours March 17,1972, eight hours March 22, 1972 and four hours March 24, 1972. These dates were more than one year prior to the date of injury, however, and the only record of wages paid during the one year in question, July 1972-July 1973, appears on Exhibit 3 in the record, in the form of a wage statement for weeks ending on given dates.

Both the employer and the employee testified that their arrangement was somewhat informal, and that the employer would not pay the employee by the day, but would only pay him when he had accumulated a fairly substantial number of hours, usually at least fifteen hours. A paycheck given on a particular date, therefore, might reflect hours worked during the week preceding the date of the check, or it might represent hours worked over two or three weeks prior to the date of the cheek. Mr. Gaw testified very frankly:

“Q And it was a regular, yearly job on the part of Mr. Raymer, wasn’t it? Yearly part-time job?
“A Yes, part-time. It wasn’t a regular job . . . there wasn’t really anything regular about it.”

The employer’s pay record which was filed as an exhibit reflects the following information:

Week Ending Hrs. Worked Rate Total Wage
2.00 72.00 July 22,1972
2.00 72.00 July 29,1972
2.00 66.00 Sept. 9,1972
2.00 72.00 Sept. 23,1972
2.00 66.00 Sept. 80,1972
2.00 60.00 Oet. 7,1972
2.00 65.50 Oet. 13,1972 eS"~
2.00 60.00 Oet. 21,1972
2.00 30.00 Oet. 28,1972
2.00 43.00 Jan. 27,1973 53
2.00 44.00 Mar. 10,1978 S3
2.00 50.00 May 28,1973 S3
2.00 48.00 June 9,1978 c¡¡
2.00 54.002 July 18,1973 S

Prior to the period reflected above, the employee had last received a check on June 17,1972 for thirty-six hours and total wages of $72.00.

It is apparent from the foregoing that the employee only received payments- in seven of the twelve months involved, but it is not possible to determine from the testimony given in the case or from the records filed whether he worked at all during the five months when he received no payment, or, if so, how many hours. It is fairly clear that during July, September and October 1972 he was working regularly for Mr. Gaw. During these months he was off from his regular job because of strikes or lay-off. During the rest of the year his work for appellant was sporadic. He sometimes did part-time work for other persons than appellant.

The employee testified that on the days when he did work, he would estimate that he averaged about six hours. The employer disputed this, and testified that he would not place the average above four hours. The employee testified that he probably averaged working on two or three days each week.

T.C.A. § 50-902(c) provides several methods, or formulas, for arriving at an average weekly wage of an employee. The usual method is stated in the first part of the section as follows:

“ ‘Average weekly wages’ shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of fifty-two (52) weeks immediately preceding the date of the injury divided by fifty-two (52) . .

It is the insistence of the employer that this is the method which should have been used by the trial judge in computing the average weekly wage. Using this method, the result would be approximately $15.43 per week, entitling the employee only to the minimum benefits provided by the workmen’s compensation statute.

An alternative method is provided in the statute, however, immediately following the language quoted above:

“but if the injured employee lost more than seven (7) days during such period when he did not work, although not in the same week, then the earnings for the remainder of such fifty-two (52) weeks shall be divided by the number of weeks remaining after the time so lost has been deducted.”

The employee insists that this is the method which should be used, and the Chancellor purportedly did so. Taking the total number of hours worked during the year, 401.25, at an average of six hours a day, the Chancellor concluded that the employee worked on 69 days during the year. He computed this to be ten weeks at seven days per week, and therefore arrived at an average weekly wage of $80.25. He reached this unusual result despite the fact that the maximum earned in any one week was $72.00. Further there was no testimony that the employee ever worked as much as seven days in a week. There was no evidence that the employer’s business was open more than six days a week, and, as we have previously pointed out, the employee testified that he worked there on an average of not more than two or three days per week, receiving paychecks after each two or three weeks worked.

We, therefore, simply cannot accept the findings of the Chancellor, and do not find them to be supported by the evidence or to represent a formula deducible from the statutory language above quoted.

The employer relies primarily upon the cases of Carter v. Victor Chemical Works, 171 Tenn. 141, 101 S.W.2d 462 (1937) and New Jellico Coal Co. v. Kenner, 172 Tenn. 185, 110 S.W.2d 476 (1937).

In the Carter case, supra, the employee worked during each of the fifty-two weeks prior to his injury, in some weeks working as much as seven days and in other weeks as little as two days. His weekly earnings varied accordingly. The only explanation for the variation was contained in a stipulation that there was more work for him to do in some weeks than in others. The employment was regular, however, rather than part-time or seasonal, and the Court accordingly concluded that his total wages for the year should be divided by fifty-two.

This holding was followed in the New Jellico Coal Co. case, supra, where the employee also worked regularly in a coal mine. During the calendar year preceding his injury the mine was closed for ten weeks, eight of these being due to strike and the remainder to natural conditions beyond the control of the company. Under these circumstances it was held that the total annual earnings should be divided by fifty-two to arrive at an average weekly wage.

The employee relies upon a different line of cases, in which the alternative method of computation was utilized, deducting the number of weeks “lost” in computing the average weekly wage. The principal case relied upon is Bryant v. McAlister, 202 Tenn. 654, 308 S.W.2d 412 (1957). There, again, the employee was a regular employee at a sawmill, the employer testifying that he was “employed all the time.” Due to shortage of materials, the employee was laid off during part of the fifty-two weeks prior to his injury. The Court held that this period should not be counted in computing the average weekly wage, citing and relying upon Hartley v. Liberty Mutual Insurance Co., 197 Tenn. 504, 276 S.W.2d 1 (1954).

In the latter case, the Court said:

“The average weekly wage of an employee should not, and is not, decreased for reasons over which he has no control, such as closing a plant for repairs (as in the instant case), occasional ‘suspension of operations due to bad weather’, unforeseen shortage of material, ‘lack of orders, lack of cars, slack season’, etc. It is observed that all of the foregoing are occasions and conditions resulting in the cessation of operations by the employer, and should not be considered in determining the average weekly wage of an injured employee.” 197 Tenn. at 509, 276 S.W.2d at 3.

It should be observed that all of the foregoing cases involved regular employees, not persons who were working only part time, as was the employee in the present case.

In the case of Toler v. Nashville, C. & St. L. By., 173 Tenn. 378, 117 S.W.2d 751 (1938), however, the employee was employed intermittently or irregularly. He had worked for the employer for more than ten years, but was only assigned work as it became available. During the year prior to his injury, he worked fourteen weeks.

Under those circumstances, the Court held that the employee had not been regularly employed for as much as a year within the meaning of the statute in question, and that his average weekly wages should be computed according to still another method referred to in the statute as follows:

“Where the employment prior to the injury extended over a period less than fifty-two (52) weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed; provided, results just and fair to both parties will thereby be obtained.”

In that case it was held that the proper method of computation was to divide the total wages received during the year by the number of weeks during which the employee received wages.

We are of the opinion that this is the method which should have been employed in the present case. Unfortunately it appears that data are not available from which the number of weeks the employee received wages can be computed with precision. The pay records which the employer did introduce show that he received fourteen paychecks during the year, and, according to one of the employee’s own suggested methods of computation, this would represent at least fourteen weeks. Accordingly, the divisor into the total wages should, at the very least, be fourteen rather than ten.

The uncontradicted testimony of both the employer and the employee, however, is that the employee worked in more weeks than he actually received paychecks, and the checks were accumulated for as much as two or three weeks before payment was made, because of the small number of hours worked. It seems clear from an examination of the pay records in evidence, that there were many weeks, and probably several months, in which the employee did not perform any work at all and during which no wages were earned. It would, therefore, in our opinion be unfair to the employee to divide the total wages by fifty-two, since he was conceded to be a part-time and irregular employee. On the other hand it is equally unfair to the employer to divide the total wages by as little as fourteen if the employee did work during more than that number of weeks or parts of weeks.

Accordingly we cannot approve the result which was reached in the trial court, nor are we able to compute with accuracy the average weekly wage from the data now on file. The statute admits of some flexibility, however, and permits the Court to arrive at a “just and fair” result.

The judgment of the Chancery Court is therefore reversed, and the cause is remanded for a new trial with directions that the average weekly wage be computed in accordance with the Toler case. If, however, no more exact evidence is offered on a new trial than presently appears in the record, the average will be computed upon a basis of not less than fourteen weeks. Cost on appeal will be taxed to appellee. All other costs will be fixed by the Chancellor.

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

      . The employee testified that the employer “never let it go any longer than two weeks.” The employer said it could be carried “for as much as three weeks.”

      . Apparently earned prior to the date of the accident, July 3, 1973.


text:
    Sam SILVERMAN et al., Appellants, v. Charlie GOSSETT d/b/a Gossett Brothers et al., Appellees.
    Supreme Court of Tennessee.
    July 18, 1977.
    Thomas V. White, Nashville, for appellants.
    James L. Fuqua, Jr., Hendersonville, Richard Marshall, O. B. Hofstetter, Jr., Claude Ramer, III, George P. Linebaugh, Jr., John S. Bryant, John L. Chambers, Nashville, for appellees.
   OPINION

HARBISON, Justice.

The single issue presented on this appeal is" the constitutionality of a portion of the Tennessee mechanics’ and materialmen’s lien statutes. Particularly at issue are T.C.A. § 64-1115 authorizing liens by subcontractors and suppliers, and § 64-1126 permitting attachments to enforce such liens. The Chancellor upheld the statutes under both the state and federal constitutions. We affirm his decision.

Five separate subcontractors and suppliers of the general contractor on a multi-building apartment complex notified the owners, appellants here, of their claims of lien and filed copies of such notices in the Davidson County Register’s Office, as required by T.C.A. §§ 64-1115,1117. Each of them timely filed suit within the prescribed ninety days after such notice. The suits have all been tried on their merits and the liens sustained after a full evidentiary hearing, at which all parties had an opportunity to offer proof.

In their answers to the suits, the owners denied the validity of the lien claims and also raised certain factual issues by counterclaims, none of which were pursued at the trial. Further, the owners challenged the validity of part of the lien statutes, alleging that a publicly recorded lien “restrains or materially diminishes the Counter-Plaintiffs’ ability to alienate or obtain credit on their property, and constitutes clouds upon their title.” It was further alleged that the owners had been damaged by reason of the filing of the lien claims pursuant to allegedly unconstitutional statutory provisions. In at least some of the cases, which were consolidated by order of the trial court, answers were filed to the counterclaims, specifically denying their allegations and joining issue thereon. The owners, however, offered no testimony at the trial in support of their damage claims, or in support of their allegation that there had been a diminution of their ability to mortgage or sell their property. After the Chancellor sustained the various liens, but before permitting their enforcement, he permitted an appeal to this Court on the constitutional issues.

The appeal might be disposed of simply upon the failure of appellants to prove their counterclaims. Issues of fact were made in the pleadings, and appellants had the burden of proof to sustain their allegations of property interference and damages. There are other factual assertions made in their briefs, to the effect that they were not financially able to take advantage of certain bond provisions contained in the lien statutes. Again, there is no evidence to support these statements.

We do not understand that appellants question the statutes insofar as they authorize a court to establish a mechanic’s lien after trial, and upon final judgment. Their challenge is to the statutes authorizing the recordation of a lien claim and an initial attachment without bond, notice or a hearing.

In the many recent cases in which constitutional attacks have been made upon mechanics’ lien statutes and other pre-judgment procedures, prejudice to the property owner has either been obvious, or it has been proved. In some instances suits have been dismissed, in whole or in part, because of failure of the owner to carry the burden of proof to sustain a constitutional attack. See, e. g., Carl A. Morse, Inc. v. Rentar Industrial Development Corp., 56 A.D.2d 30, 391 N.Y.S.2d 425 (1977), in which validity of the New York mechanics’ lien statutes was upheld, with the decision resting, in part at least, upon insufficiency of the evidence offered by the landowner.

Because of the “limited intrusion” upon the landowner’s rights represented by a mechanics’ lien, as contrasted to the serious consequences which would be sustained by the construction industry upon invalidation of lien statutes, the United States District Court for the Eastern District of Michigan sustained the lien statutes of that state in the case of Central Security National Bank of Lorain County v. Royal Homes, Inc., 371 F.Supp. 476 (E.D.Mich.1974). It found that lack of proof of hardship by the landowner was a factor to be considered in making its determination.

We have alluded to the absence of proof of hardship or inconvenience in the instant case, which makes the claim of the appellants almost theoretical. The lien claims sustained in these five cases amount to $33,-364.07. The enterprise conducted by the landowners is a multi-million dollar complex, the record reflecting a construction loan alone of $1,700,000.00. We certainly cannot take judicial notice that the owner of such a complex would have much difficulty in selling or mortgaging his property in the face of these relatively insignificant lien claims, and it is difficult to believe that an adequate indemnity bond or escrow arrangement could not be effected so as to permit ready encumbrancing or conveyancing. This, of course, might not be true in all cases involving mechanics’ liens, depending upon the facts. In the present case, not only are the lien claims small, but throughout the litigation, the landowners have remained in possession of their property, including the improvements, labor and materials supplied by the lien claimants, with complete freedom to lease or rent the same and receive the income therefrom.

Even if we overlook the insufficiency of the landowners’ evidence, however, we are of the opinion that their constitutional claims are not well taken.

Mechanics’ lien statutes in favor of subcontractors and suppliers have been in force in Tennessee since at least 1845. Their validity was upheld in cases decided during the latter part of the nineteenth and early twentieth centuries. They were explicitly sustained against due process attacks, under both the state and federal constitutions, in Cole Manufacturing Co. v. Falls, 90 Tenn. 466, 16 S.W. 1045 (1891). See also Green v. Williams, 92 Tenn. 220, 21 S.W. 520 (1893); Ruston v. Perry Lumber Co., 104 Tenn. 538, 58 S.W. 268 (1900).

There have been a number of cases in other states and in the federal courts following certain recent holdings of the United States Supreme Court in connection with prejudgment seizure of chattels, wages and other personal property. It is upon these cases that appellants here, like similar claimants in other jurisdictions, predicate their contentions that the Tennessee statutes are lacking in essential due process requirements.

In four well-known and widely discussed decisions between 1969 and 1975, the United States Supreme Court examined pre-judgment procedures authorized by statutes in a number of states. In three of these cases the statutes were held invalid, and in one the statute was sustained. In Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), the pre-judgment seizure of wages by garnishment as provided by Wisconsin statutes was held unconstitutional. The replevin statutes of Florida and Pennsylvania were stricken in the case of Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). In Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), personal property sequestration statutes from Louisiana were held valid, but a garnishment statute of Georgia was held unconstitutional in North Georgia Finishing, Inc. v. DiGhem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975).

These cases led to revision of the statutes in many states dealing with pre-judgment seizure or impoundment of personal property. They also led to litigation involving statutes pertaining to real property, such as those providing for attachments and liens. The decisions are not limited in their effect to distinctions between various types of property, such as real and personal, but turn upon the extent of deprivation of property rights without prior notice and judicial review.

To date, insofar as our research reveals, the courts in only two states have found their respective mechanics’ lien statutes unconstitutional. In each of these the statutory scheme differed from, and was considerably more drastic, from the standpoint of the landowner, than that of Tennessee. In the case of Barry Properties, Inc. v. Fick Bros. Roofing Co., 277 Md. 15, 353 A.2d 222 (1976), the Maryland Court of Appeals struck portions of the mechanics’ lien statutes of that state for lack of adequate provisions as to notice and a hearing. Like the present cases, however, that case had been tried on its merits before being appealed, and the majority of the Court sustained the lien involved, since it had been ultimately sustained after a trial and final judgment. Further, in that case, there was a stipulation that the landowner had been prevented from obtaining the balance of its construction loan by reason of the lien claim and had also been prevented from either closing a permanent mortgage or obtaining a second mortgage on the equity in its property. There is no such showing in the record before us.

In the course of its opinion, the Maryland Court noted that the mechanics’ lien statutes of Arizona had been upheld in Spiel-man-Fond, Inc. v. Hanson's, Inc., 379 F.Supp. 997 (D.Ariz.1973), and that this decision of a district court in Arizona had been affirmed summarily by the United States Supreme Court at 417 U.S. 901, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974). The Maryland Court concluded, however, that the Arizona statutes were materially different from those of Maryland, in that the Arizona statutes required that a material-man give notice and file suit within a much shorter time than was required in Maryland, and the Arizona lien could be discharged upon the filing of a bond by the landowner.

The Supreme Court of Connecticut found that the mechanics’ lien statutes of that state also were constitutionally deficient in the case of Roundhouse Construction Corp. v. Telesco Masons Supplies Co., 168 Conn. 371, 362 A.2d 778 (1975). The Connecticut statutes, however, provided for a lien of as much as four years duration, and the Court found “most conspicuously absent” any provision for a timely hearing by the landowner either before or after the recording of the lien notice. The Court said:

“The statutes allow the lien to continue for two years without any further action on the part of the lienor, during which time the owner is without recourse in the courts to contest the merits of the claim underlying the lien.” 362 A.2d at 784.

Like the Maryland Court, the Connecticut Court noted that the Arizona statutes permitted a lien to exist for no more than six months unless suit was filed within that time for enforcement. The Court said:

“Such a provision would seem to offer the bare minimum of due process protection consistent with the extent of deprivation present.” 362 A.2d at 783.

The Tennessee statutes, like those of Arizona, permit the existence of a lien without suit by a subcontractor or materialman for much shorter periods than the Maryland or Connecticut statutes. T.C.A. § 64-1115 requires the lien claimant to notify the owner within ninety days after completion of the work or expiration of his contract and requires the filing of suit within ninety days from the date of such notice. We have been cited to no authority holding that these statutory periods are unreasonable or are violative of due process. They are certainly comparable to the periods permitted under the Arizona statutes which were upheld in the Speilman-Fond case, supra.

Contrary to the holdings in Maryland and Connecticut, the majority of state courts which have considered the matter have sustained their mechanics’ lien statutes. We have already alluded to a case from New York, Carl A. Morse, Inc. v. Rentar Industrial Development Corp., 56 A.D.2d 30, 391 N.Y.S.2d 425 (1977). See also Tucker Door & Trim Corp. v. Fifteenth Street Co., 235 Ga. 727, 221 S.E.2d 423 (1975). And in Connolly Development, Inc. v. Superior Court of Merced County, 17 Cal.3d 803, 132 Cal.Rptr. 477, 553 P.2d 637 (1976), the California Supreme Court upheld not only the mechanics’ lien statutes but also the unique “stop notice” statutes of that state having to do with the disbursement of construction loan proceeds. See also First Recreation Corp. v. Amaroso, 113 Ariz. 572, 558 P.2d 917 (1976), sustaining state statutes dealing with pre-judgment levies upon real property.

In addition to the Speilman-Fond ease, supra, a number of other federal decisions have sustained state statutory provisions involving mechanics’ liens or similar procedures. See In re Northwest Homes of Chehalis, Inc., 526 F.2d 505 (9th Cir.1975), cert. denied, 425 U.S. 907, 96 S.Ct. 1501, 47 L.Ed.2d 758 (1976); Central Security National Bank of Lorain County v. Royal Homes, Inc., 371 F.Supp. 476 (E.D.Mich. 1974); Cook v. Carlson, 364 F.Supp. 24 (D.S. D.1973); Ruocco v. Brinker, 380 F.Supp. 432 (S.D.Fla.1974).

Many of these decisions have been based upon the obvious distinctions between the seizure, impoundment or repossession of wages and chattels, which were involved in the Sniadach, Fuentes, and North Georgia Finishing, Inc. cases, supra, and the mere filing of a record claim of lien and the attachment of real property which are involved in a mechanics’ lien claim. In the latter instance, the property owner is not disturbed in his possession, enjoyment or income. The filing of a lien notice can, of course, operate as a cloud upon the record title to his property and may, as a result, impair, to some extent, his ability to mortgage or sell it. We have already mentioned that such impairment has not been demonstrated in the present case, but in the cases which have considered the issue, this impairment has been deemed to be slight or incidental, compared to the drastic consequences that a lien claimant may suffer if he is not permitted to file and perfect a mechanics’ lien. The public policy of the state represented in the lien statutes is a strong one, and ought not to be impaired or invalidated because of the relatively slight inconvenience which a landowner may suffer by reason of having a lien claim filed.

A number of the cases discussed above have held that the landowner has not suffered a sufficiently significant deprivation of property rights by reason of a pre-judgment lien notice and attachment to justify invalidation of state statutes under the rationale of Fuentes and the related Supreme Court decisions. Other courts have concluded that there is or may be a sufficient cloud upon record title to amount to a significant deprivation of property rights, but that nevertheless, upon balancing the conflicting interests involved, the lien statutes are constitutional, particularly in light of remedial or preventive procedures which may be available to the landowner. Typical of these decisions is the California Connolly Development, Inc. case, supra.

We are of the opinion that the Tennessee mechanics’ lien statutes do not permit the deprivation of sufficiently significant property rights of the landowner without notice or hearing to offend either the federal or state constitutional due process provisions. We also conclude that the procedural provisions of the statutes meet due process standards under both constitutions. The periods within which lien claims must be recorded and suit filed are short. The landowner is authorized both by contract and by statute to require an adequate performance bond from his general contractor to protect against mechanics’ liens. T.C.A. § 64-1138. He may make written demand upon a lien claimant to commence action to enforce his lien, and the lienor generally must either commence action or file a claim in a creditors’ proceeding within sixty days or forfeit his lien. T.C.A. § 64-1130. Further, the landowner by executing an indemnity bond may free his property from the lien claim. T.C.A. § 64-1144. In addition, T.C.A. § 64-1120 expressly limits the amount of claims for which liens can be sustained, and T.C.A. § 64-1141 provides for disallowance entirely if a court finds that a lienor has willfully and grossly exaggerated his claim.

We also feel it appropriate to observe that in the numerous cases involving lien claims in this state, the courts have construed the statutes most strictly in favor of the landowner. Lien claimants have been denied relief for failure to comply, literally, with each of the statutory requirements. Illustrative is the recent case of Eatherly Construction Co. v. DeBoer Construction Co., 543 S.W.2d 333 (Tenn.1976), in which a lien claimant was denied relief because he did not re-attach property within a specified time after completion of the work, despite the fact that he had already previously attached it in the same action. In the case of General Electric Supply Co. v. Arlen Realty & Development Corp., 546 S.W.2d 210, 213 (Tenn.1977), the Court said:

“Because of the unusual relief afforded to a lien claimant, and the effect which a materialman’s lien may have upon rights of third parties, the courts have properly construed the lien statutes strictly, almost rigorously, but in our opinion the statutes should not be construed so harshly as to frustrate the legislative purpose in authorizing such liens.”

In that case the Court stated that it had no disposition to depart from strict construction, but it did overrule an earlier case imposing procedural requirements greater than those expressly contained in the statutes.

We are of the opinion that the procedures for perfecting and enforcing mechanics’ liens in this state strike a proper balance between the interests of those engaged in the building and construction trades on the one hand and landowners on the other. The statutory provisions, in our opinion, meet the due process requirements of both the state and federal constitutions.

The judgment of the Chancery Court is affirmed, and the cases are remanded to that court for such further proceedings as may be appropriate.

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

      . For discussions of these cases, see generally Cate & Robinson, Due Process and Creditors’ Remedies: From Sniadach and Fuentes To Mitchell and Beyond, 28 Rutgers L.Rev. 541 (1975); Clark & Landers, Sniadach, Fuentes and Beyond: The Creditor Meets .the Constitution, 59 Va.L.Rev. 355 (1973); 25 Vand.L.Rev. 1251 (1972); 28 Vand.L.Rev. 908 (1975).

        . The Connecticut decision was appealed to the United States Supreme Court, which vacated the judgment with directions that the state court specify whether its decision rested upon federal or state constitutional principles. 423 U.S. 809, 96 S.Ct. 20, 46 L.Ed.2d 29 (1975). The Connecticut Court responded to the remand by stating that it had based its decision upon both constitutions. See 170 Conn. 155, 365 A.2d 393 (1976). The Supreme Court of the United States thereupon denied certiorari upon the basis that the Connecticut decision rested upon an adequate state ground, rather than the federal constitution, although even then three members of the Court felt that cer-tiorari should be granted. See 97 S.Ct. 246 (1976).

      . The Arizona statutes require recordation of a lien claim by subcontractors within sixty days after project completion, Ariz.Rev.Stats. § 33-993, but allow six months thereafter for suit. Ariz.Rev.Stats. § 33-998.

      . By recent amendment to the statutes, the landowner may force lien claimants to file their claims within ten days by recording a notice of completion in the Register’s Office. T.C.A. §§ 64-1145 et seq.


author: COOPER, Chief Justice.

text:
    PACIFIC EMPLOYERS INSURANCE COMPANY and Halo Cleaners d/b/a Town and Country Cleaners Coin Laundry, Appellants, v. Betty Sue BOOKER, Appellee.
    Supreme Court of Tennessee.
    July 18, 1977.
    Don R. Binkley, Gracey, Maddin, Cowan & Bird, Nashville, for appellants.
    James L. Curtis, Higgins & Curtis, Nashville, for appellee.
   OPINION

COOPER, Chief Justice.

This is a workmen’s compensation action. The appellants, Pacific Employers Insurance and Halo Cleaners, appeal from a decision of the Circuit Court of Davidson County awarding benefits to the appellee, Betty Sue Booker, an employee of Halo, in compensation for injuries that she suffered when she fell in the parking lot adjoining her place of employment. The sole question presented is whether the appellee’s injuries arose out of and in the course of her employment.

The facts of the case are not in dispute, being derived solely from the testimony of the appellee, the only witness in the trial court. Prom that testimony, it appears that the appellee worked as an attendant at a coin-operated laundry operated by appellant Halo. The appellee worked six hours a day Monday through Friday, and ten hours a day on Saturday. She was allowed one hour a day for lunch, for which time she was not paid. Her employer requested that she leave the laundry during her lunch hour. It was the appellee’s custom to walk home to have lunch whenever possible, her home being located across the street from the laundry. The laundry is in a small shopping center, and it was necessary for the appellee to cross a parking lot provided for the patrons and employees of the stores located in the shopping center in order for her to return home. On July 28, 1975, while the appellee was crossing the parking lot on her way home to have lunch, she slipped on a flattened tin can and fell, injuring her leg.

The appellee was injured while she was on her way to eat lunch, at a place of her own choice, which was not on the premises of her place of employment. Implicit in our decisions is the principle that an employee who is on an unpaid lunch period, during which he is free to leave the premises and eat lunch at any place of his choice, and who in fact does leave those premises, is not performing a service for his employer. TriCity Towel and Linen Service v. Cope, 529 S.W.2d 51 (Tenn.1975); Greenfield v. Manufacturers Casualty Co., 198 Tenn. 452, 281 S.W.2d 47 (1955). Compare Hankins v. Camel Manufacturing Co., 492 S.W.2d 212 (Tenn.1973). Although the appellee was requested to leave the premises by her employer, this in and of itself is insufficient to establish that she was performing a service for her employer during her lunch hour. See Greenfield v. Manufacturers Casualty Co., supra.

Recovery of workmen’s compensation benefits for injuries suffered by an employee who is not on the business of his employer, and who is on his way to or from his work station, is restricted to those instances in which the employee is proceeding by a means furnished by the employer, or in a manner or over a route required by the employer, and this subjects the employee to a definite special hazard. Aluminum Corp. of America v. Baker, 542 S.W.2d 819 (Tenn.1976); Potts v. Heil-Quaker Corp., 482 S.W.2d 135 (Tenn.1972). In this case the undisputed evidence shows that the appel-lee, at the time she was injured, was not proceeding in a manner or over a route mandated by her employer, as that requirement has been interpreted by this court. See, e.g. Tri-City Towel & Linen Service v. Cope, supra. Furthermore, there is no evidence in the record that indicates that the dangers stemming from the flattened tin can on which the appellee slipped were in any way peculiar to the route taken by the appellee, or different from those to which any person might be subject. See Woods v. Warren, 548 S.W.2d 651 (Tenn.1977); Jackson v. Clark and Fay, Inc., 197 Tenn. 135, 270 S.W.2d 389 (1954).

This court does not reweigh the evidence in workmen’s compensation cases. Strader v. United Family Life Insurance Co., 218 Tenn. 411, 403 S.W.2d 765 (1966). This does not mean, however, that we will affirm a decision that is not supported by material evidence. Insurance Co. of America v. Hogsett, 486 S.W.2d 730 (Tenn.1972). We have found no material evidence to support a finding that the appellee was subjected to a definite special hazard when she crossed the parking lot. Accordingly, the judgment of the trial court is reversed and the case dismissed.

FONES, HENRY and BROCK, JJ., and LEECH, Special Justice, concur.


text:
    HOUSEBOATING CORPORATION OF AMERICA, Petitioner, v. James A. MARSHALL et al., Respondents.
    Supreme Court of Tennessee.
    July 18, 1977.
    Frank S. King, Jr., Nashville, Robert J. English, Knoxville, for petitioner.
    McCord & Cockrill, P.C., Knoxville, for respondents.
   OPINION

HARBISON, Justice.

This case involves a claim for indemnification by a distributor against the manufacturer of a houseboat. The distributor had sold the boat, after some alterations and additions, to a customer, but in prior litigation the customer was allowed rescission of the contract of purchase and a refund of the purchase price because of a defective condition in the vessel. It was established in that litigation that the defect occurred during the manufacturing process. Since the customer sought only rescission, however, and not damages, he was allowed recovery against the distributor alone and not the manufacturer, although the latter was a party to that litigation.

After being held liable in the prior case, the distributor, Lake Flite Plastics, paid the judgment, representing the entire sale price to the original purchaser. It notified the manufacturer that it proposed to sell the boat at a price considerably below the original sale price, and called on the manufacturer to assume responsibility for the difference. When the manufacturer refused, the distributor did sell the boat at a reduced price and in the present action, by way of counterclaim, sought indemnification from the manufacturer for its loss.

Both the trial court and the Court of Appeals allowed the claim of the distributor, and this Court granted certiorari to give further consideration to the issue.

The present litigation was instituted by the manufacturer to recover its sale price to the distributor of a second and different houseboat. The distributor set up its claim arising out of the previous transaction, described above, by way of counterclaim. It sought indemnification, based upon its original demand after it had been held liable in its customer’s suit. By amendment, it also claimed a right of recovery based upon numerous other theories, including breach of implied warranty, strict liability in tort, and tortious misrepresentation. In the present case the trial judge found that privity of contract existed between the manufacturer and the distributor, although in the prior litigation it had been established that there was no privity between the ultimate consumer and the manufacturer.

We are of the opinion that the distributor is entitled to be indemnified by the manufacturer for the defective condition of the vessel, which resulted from the permeation of the interior with a chemical that emitted irritating fumes. It is not questioned in the present litigation that this defective condition resulted from the original manufacturing process.

The usual basis for recovery by a retailer or dealer against the manufacturer of a product is a claim for indemnification, arising out of a contractual obligation or out of a claim of active-passive negligence. See Frumer & Friedman, Products Liability, §§ 44.02[3] et seq. (1976).

Principles of indemnification are well settled in Tennessee law. In the case of Southern Goal & Coke Co. v. Beach Grove Mining Co., 53 Tenn.App. 108, 381 S.W.2d 299 (1963), a selling corporation was allowed indemnification against a producing corporation where the former had guaranteed and discharged obligations of the latter under certain federal statutes. In that case the Court said:

“The right to indemnity rests upon the principle that everyone is responsible for the consequences of his own wrong, and if another person has been compelled to pay the damages which the wrongdoer should have paid, the latter becomes liable to the former.” 53 Tenn.App. at 116, 381 S.W.2d at 302.

Contracts of indemnification may be express, or an obligation to indemnify may arise by implication from the relationship of the parties, as in the Southern Coal & Coke case, supra. See Ryan Stevedoring Co. v. Pan Am. S.S. Co., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed.2d 133 (1956); see also Mason-Dixon Lines v. General Electric Corp., 270 F.2d 780 (4th Cir. 1959), cert. denied, 361 U.S. 964, 80 S.Ct. 593, 4 L.Ed.2d 545 (1960), a case tried in Virginia but involving some aspects of Tennessee law.

We consider these to be the governing considerations in the present case, where a distributor has discharged an obligation which was primarily that of the manufacturer. There seems to be no question but that had the ultimate consumer proceeded on a broader theory in his original action, such as one of strict liability or breach of warranty, he might well have obtained a joint judgment against both the dealer and the manufacturer. In that event the dealer could have claimed exoneration from the manufacturer, since it was established that the defect in the product resulted from the manufacturing process.

In the original action, however, a joint judgment was not permitted because the customer had proceeded strictly upon a theory of rescission — a remedy available only between the immediate parties to a sale. Under those circumstances, the claim of the distributor for indemnification against the manufacturer was not a compulsory counterclaim and, at most, would have amounted to a permissive cross-claim or a third-party claim. Since the indemnity claim was not compulsory in the former action, it can properly be set up as a counterclaim in the present suit between the manufacturer and the retailer. Cf. Universal Underwriters Ins. Co. v. Ford Motor Co., 264 F.Supp. 757 (E.D.Tenn.1967) (retailer’s suit against manufacturer maintainable on warranty theory, although manufacturer was exonerated in original negligence action by customer).

Although the counterclaim of the dealer, respondent here, might be sustainable upon some of the alternative theories asserted in its amended pleadings, in our opinion it can clearly be sustained as a claim for indemnity. The manufacturer had notice of the original action, being a party thereto, and also received a separate demand for indemnification after the dealer had been held liable.

Accordingly the judgment of the Court of Appeals is affirmed at the cost of petitioner.

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