author: ROBERT R. WELBORN, Special Judge.

text:
    WARRENSBURG CABLE, INC., Respondent, v. WARNER-CCC, INC., Wallace S. Reed and Tim Brooks, Appellants.
    No. KCD 28748.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.

      C. B. Fitzgerald, Tom R. Williams, War-rensburg, for appellants.
    Edgar S. Carroll, Warrensburg, for respondent.
    Before SHANGLER, P. J„ and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action by Warrensburg Cable, Inc., holder of a non-exclusive franchise for the operation of a Community Antenna Television System (CATV) in the City of Warrens-burg, Missouri, to enjoin operation by Warner-CCC, Inc., of a similar system in War-rensburg.

Warner’s predecessor had been granted a 10-year non-exclusive CATV franchise by Warrensburg in 1966. The term of the franchise expired January 10,1976, without its renewal. Warner was dealing with city officials for a renewal of its franchise and it also made application to the Federal Communications Commission for a Certificate of Compliance for the operation of its system.

On January 30,1976, Warrensburg Cable, Inc., filed this suit to enjoin Warner’s operation, alleging that the operation by Warner was illegal because it had no franchise from the city and no Certificate of Compliance from the FCC.

Evidence was heard on February 17,1976, on a request for a temporary injunction. At the conclusion of the hearing the court issued an order for a temporary injunction to become effective April 17, 1976, if on or before that date Warner had not received a franchise from the City of Warrensburg and a certificate of compliance from the FCC.

On March 24, 1976, the city granted a 15-year non-exclusive franchise to Warner. Warner amended its application before the FCC to show granting of the franchise.

Warner’s motion to dissolve the temporary injunction was overruled, the court stating:

“Now on this 14th day of April, 1976, the Motion of Defendant Warner-CCC, Inc., to dissolve the temporary injunction heretofore entered is taken up and considered by the Court, and the Court being fully advised in the premises overrules the Motion to Dissolve the Temporary Injunction on the basis that a dual regulatory system exists whereby the State of Missouri through its Courts can require that a company be in compliance not only with local regulation and franchise requirements, but also with the requirements of the Federal Communications Commission.

“In the present case the Defendant has obtained a franchise from the City of War-rensburg, but has not obtained a Certificate of Compliance from the Federal Communications Commission. In Missouri Utilities Company vs. Scott-New Madrid-Mississippi Electric Co-op, 475 S.W.2d 25, the Supreme Court of this State indicated that injunctive relief was available to a plaintiff where its competitor was acting unlawfully and without authority. In the present case it is the position of the Court that jurisdiction exists because there is no Certificate of Compliance from the Federal Communications Commission, and regardless of what action that administrative agency takes there can be no lawful authority unless and until it issues its Certificate of Compliance.”

On April 19,1976, a permanent injunction was ordered. This appeal followed.

Following the filing of the notice of appeal, the FCC issued its Memorandum Opinion and Order, FCC 76-638, In re Application of Warner Cable of Warrensburg, Missouri.

The order recited Warner’s application of January 22,1976, for a certificate of compliance and continued:

“2. An opposition to Warner’s application was filed by Warrensburg Cable, Inc. (hereinafter WCI) on March 12, 1976. In its opposition WCI maintains that Warner’s application should be dismissed because no franchise was filed with the application and because Warner’s predecessor had previously failed to obtain a certificate pursuant to Section 214 of the Communications Act of 1934, as amended. In the alternative, WCI requests that the Commission refrain from acting on this application until the Commission acts on WCI’s requested petition for a show cause order against Warner. Warrensburg Cable Inc. v. United Telephone of Missouri, FCC 74R-320, 48 FCC 2d 893 (1974). On February 17, 1976, the Circuit Court of Johnson County, Missouri, ordered Warner to obtain a franchise and Commission certification by April 19, 1976, or cease operation. On March 22,1976, Warner filed its reply with the Commission. The City of Warrensburg issued Warner a franchise consistent with the Commission’s Rules on March 24, 1976, and on March 26, 1976, Warner amended its application to include the new franchise. * * *

“3. A certificate of compliance signifies consistency with applicable Commission Rules. Because the outcome of Warrensburg Cable Inc. v. United Telephone of Missouri, supra (hereinafter United Telephone) will determine whether or not this system is in fact in compliance with all applicable rules and policy, a certificate of compliance cannot be issued until resolution of United Telephone. However, it is established Commission policy that where carriage of signals would comply with the Commission’s rules, the public interest is not best served by indefinitely delaying authorization of those signals, pending final action in other Commission proceedings. See Service Electric Cable TV, Inc. (Maha-noy City Borough, Pennsylvania) FCC 75-1354, 57 FCC 2d 344 (1975). To do so would result in the public being deprived of signals whose carriage is consistent with the Rules based upon mere allegations of wrongdoing. Therefore, since Warner has submitted a consistent franchise, and its carriage is consistent with the signal carriage rules, we will grant special relief authorizing Warner’s continued operation at Warrensburg, Missouri, pending resolution of United Telephone.

“In view of the foregoing, the Commission finds that authorization to continue operation of the above-captioned cable television system is consistent with the public interest.

“Accordingly IT IS ORDERED, That Warner Cable of Warrensburg, IS AUTHORIZED to continue operation of its cable television system at Warrensburg, Missouri, provided, however, that it seek certification for its system within thirty (30) days of the final disposition of Warrensburg Cable Inc. v. United Telephone of Missouri, supra.

“IT IS FURTHER ORDERED, That the ‘Application for Certificate of Compliance’ (CAC-6051) filed by Warner Cable of War-rensburg, IS DISMISSED.

“IT IS FURTHER ORDERED, That the ‘Opposition’ filed by Warrensburg Cable, Inc., IS DENIED.”

On this appeal, the appellant asserts that the trial court lacked jurisdiction to grant injunctive relief because the FCC had primary jurisdiction of the certification procedure. Appellant also contends that the FCC order of June 30, 1976 has rendered the issues in this case moot.

There is no need to pursue the primary jurisdiction argument. It is clear that the basis of the trial court’s grant of injunctive relief no longer exists. Respondent’s claim for that remedy was based upon the illegality of appellant’s operation without a city franchise and without FCC authority. The lack of a franchise has been supplied. The FCC order of June 30 clearly authorizes the continued operation of appellant in War-rensburg. As respondent contends, this order does not constitute a certificate of compliance and the FCC dismissed appellant’s application for such certificate pending determination of another proceeding before the Commission. However, neither the circuit court nor this court is the proper forum for determination of the propriety of the procedure employed by the FCC. The order does remove any basis for relief in the courts of this state to respondent on the grounds that the appellant is operating illegally because of the lack of FCC approval.

Decree reversed.

All concur.


source: Caselaw Access Project

author: DIXON, Presiding Judge.

license: Public Domain

text:
    Raymond L. HALLER, Plaintiff-Appellant, v. Victor R. SHAW, Defendant-Respondent.
    No. KCD 28763.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.
    L. Clay Barton, Cochran, Tyree, Oswald & Miller, Blue Springs, for plaintiff-appellant.

      Clyde G. Meise, Meise, Cope & Loughlin, Kansas City, for defendant-respondent.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   DIXON, Presiding Judge.

Plaintiff appeals from an order of the circuit court setting aside a default judgment. The issue is whether the trial court had jurisdiction to vacate the default judgment. Appeal dismissed.

Plaintiff filed suit in the circuit court against defendant, Victor R. Shaw, and other parties, for breach of contract, fraud, and misrepresentation. In 1974, plaintiff filed an amended petition for breach of contract, fraud, and misrepresentation. Defendant Shaw did not file answer nor did he appear at the hearing on March 11,1976. After that hearing, judgment was entered against defendant, Victor R. Shaw, for $27,-500 actual damages and $50,000 punitive damages.

On the 12th day of April, 1976, defendant, Victor R. Shaw, filed a motion to vacate the default judgment. On April 12, 1976, Judge Forest W. Hanna vacated the default judgment entered on March 11, 1976 against defendant, Victor R. Shaw.

Plaintiff’s sole contention is that the trial court lacked jurisdiction to grant the defendant’s motion because more than thirty days had elapsed since the entry of the judgment.

Rule 75.01 gives the trial court superintending control over its judgments for a period of thirty days. It provides in part:

“The trial court retains control over judgments during the thirty day period after entry of judgment and may vacate, reopen, correct, amend or modify its judgment for good cause within that time

Rule 44.01 describes how time limitations found in rules, orders, or statutes are to be computed. It provides in pertinent part:

“(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.”

Appellate courts take judicial notice of calendars and dates on which a particular day of the week fell. Meriwether v. Overly, 228 Mo. 218, 129 S.W. 1 (1910); Kuczma v. Droszkowski, 243 Mo. 57, 147 S.W. 1000 (1912).

By reference to a calendar for 1976, the first day to be counted under Rule 44.01(a) was March 12, 1976. The thirtieth day thereafter (which is to be included) is April 10,1976, which was a Saturday. This being the case, the period of time “runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday.” The next such day is Monday, April 12, 1976, the day on which defendant’s motion to vacate the default judgment was filed and ruled. Cases cited by plaintiff where a trial court acted beyond the thirty days are inapposite since the court acted upon the thirtieth day. The motion was timely filed. Boone v. Danforth, 463 S.W.2d 825 (Mo. banc 1971); Bowling v. Webb Gas Company, Inc. of Lebanon, 505 S.W.2d 39 (Mo.1974).

Defendant requests that the order of the trial court be affirmed. It is not appropriate to affirm. An order setting aside a default judgment, entered within thirty days after entry of the default judgment, is not appealable because there is no final judgment. Altman v. Werling, 509 S.W.2d 787 (Mo.App.1974); O’Mara v. Gingrich, 424 S.W.2d 92 (Mo.App.1968); Harper v. Harper, 379 S.W.2d 889 (Mo.App.1964). The appeal should be dismissed, which has the effect of reinstating the cause in the trial court.

Appeal dismissed.

All concur.


author: PER CURIAM.

text:
    DECK AND DECKER PERSONNEL CONSULTANTS, LTD., Respondent, v. Doris Dean PIGG, d/b/a Dean Pigg Employment Agency, Appellant.
    No. KCD 29002.
    Missouri Court of Appeals, Kansas City District.
    Aug. 29, 1977.

      Craig A. Van Matre, Van Matre & Van Matre, Columbia, for appellant.
    James C. Butcher, Butcher, Marshall & Cline, Columbia, for respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   PER CURIAM.

Defendant-appellant (hereinafter referred to as employee) was enjoined from engaging in the employment agency business for a period of one year in a restricted area at the behest of plaintiff-respondent (hereinafter referred to as employer).

The injunctive relief granted, and from which employee appeals, represented enforcement of a covenant not to compete contained in a written contract of employment which was terminable at will by either party. Employee left employer’s hire after approximately three years service and set up her own employment agency.

Although the spatial and temporal limitations spelled out in the restrictive covenant have not been questioned as being unreasonable, employee seeks reversal of the judgment below and dissolution of the injunction for a myriad of other reasons.

Employee attacks employer’s right to enforce the restrictive covenant because of a discrepancy between employer’s name as it appeared in the employment contract and its correct corporate name. This point is not well taken as there was evidence from which the trial court could and obviously did find that notwithstanding the misnomer the employment contract was executed by and on behalf of employer corporation and binding upon it. H. W. Underhill Const. Co. v. Nilson, 3 S.W.2d 399, 400 (Mo.App.1928); and DeMaria & Janssen v. Baum, 227 Mo.App. 212, 52 S.W.2d 418, 420 (1932).

The trial court is faulted for granting the requested injunctive relief because it did so without taking into consideration the “unclean hands” of employer’s president, sole stockholder, and chief executive officer. Employee’s lack of specificity regarding “wherein and why” the hands of employer’s alter ego were besmirched, equitably speaking, fails to comply with Rule 84.04(d). In so failing, no viable point is presented for appellate review. See Simpson v. Island View Sales Corp., 540 S.W.2d 624 (Mo.App.1976). Its deficiency is further compounded by the fact that although employee contends that the trial court manifested its refusal to consider the doctrine of “unclean hands” by the rejection of evidence offered by employee, no reference is made to the rejection of any specific evidence. Further discourse on this point is unwarranted.

Employee’s next point, that the evidence “overwhelmingly indicates” that employer had no protectible interest to justify equitable enforcement of the restrictive covenant, is disposed of by recognizing and applying a few well established principles of law pertaining to such covenants and the scope of review of court tried cases.

The natural repulsion of a free enterprise society toward restraints of trade has engendered a literal “sea” of case law, periodicals, annotations and treatises touching upon the validity and enforcement of restrictive covenants of the nature of the one at hand. An extensive compilation of them is contained in Arthur Murray Dance Studios of Cleveland v. Witter, 105 N.E.2d 685 (Ohio Com.P.L.1952), and it is recommended reading for those wishing to become quickly exposed by a single source to the many and multifacted principles applicable to covenants not to compete. Notwithstanding the vast “sea” of available authority, Missouri cases exist which are dispositive of the precise issue presently under consideration.

Although an employer cannot extract an enforceable restrictive covenant from an employee merely to protect himself from competition, a temporally and spatially limited restraint may be deemed reasonable and enforceable in equity if a legitimate protectible interest of the employer is served. Prentice v. Rowe, 324 S.W.2d 457, 461 (Mo.App.1959); and Renwood Food Products v. Schaefer, 240 Mo.App. 939, 223 S.W.2d 144, 151 (1949). Customer contact is judicially recognized in this state as being a legitimate protectible interest. R. E. Harrington, Inc. v. Frick, 428 S.W.2d 945, 950 (Mo.App.1968); and Renwood Food Products v. Schaefer, supra, 223 S.W.2d at 151. More particularly, in Haysler v. Butterfield, 240 Mo.App. 733, 218 S.W.2d 129 (1949), decided by this court’s predecessor, an employee’s contact with prospective employers to whom job applicants of an employment agency were referred was held to constitute a legitimate protectible interest of the employment agency for the purpose of enforcing a covenant not to compete by way of injunction.

The power of an appellate court to set aside a decree or judgment in a court tried case on the ground that it is “against the weight of the evidence” is to be exercised “with caution and with a firm belief that the decree or judgment is wrong”. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The record in the instant case is permeated with evidence, direct and circumstantial, from which the trial court could reasonably find that contacts with prospective employers to whom job applicants were referred by employer were a vital and integral part of employer’s success as an employment agency, and that during the course of her employment the employee acquired a close and valuable rapport with such prospective employers. Gauged by Murphy v. Carron, supra, and guided by Haysler v. Butterfield, supra, this court, absent throwing caution to the wind, cannot say that the trial court erred in holding that employer had a legitimate protectible interest which was sufficiently adequate to support equitable enforcement of the restrictive covenant.

Employee, by way of a separate point, takes the unusual tack of indicting Haysler v. Butterfield, supra, on the dual grounds that it was “wrongly decided” and does not apply to the case at hand. A swift and sure substantive response to this point exists— what was said regarding disposition of the preceding point relied upon by employee fully answers this point. Deprecation of the applicability of Haysler v. Butterfield, supra, is undeserved and no sound reason for overruling it has been advanced.

Although somewhat ineptly put by employee, she perceivably contends in her final point that as her employment was terminable at will by employer, requisite mutuality was lacking to justify granting equitable relief by way of injunction to enforce the covenant not to compete. Mutuality in the sense used by employee obviously refers to the lack of any binding obligation on employer to continue employee’s services for a specified term, while at the same time ostensibly possessing the right to prohibit employee for a fixed period in a fixed area from engaging in like employment on termination of the employer-employee relationship.

Employee and employer have both failed to cite any definitive authority to support their respective positions concerning employee’s final point. This court’s independent research discloses that the issue raised by employee’s final point, although relatively novel, has been previously addressed in a minority of other jurisdictions with varying results. Sherman v. Pfefferkorn, 241 Mass. 468, 135 N.E. 568, 569 (Mass.1922), represents the view that a contract of employment containing a covenant not to compete does not lack mutuality when the employer and the employee stand on equal footing with respect to its termination, i. e., where employment is terminable at will by either party, and the employer is not precluded from resorting to equity to enforce the restrictive covenant. Compare City Ice & Fuel Co. v. McKee, 57 S.W.2d 443 (Mo.App.1933), with Sherman v. Pfefferkorn, supra. Byram v. Vaughn, 68 F.Supp. 981 (D.D.C.1946), represents the opposite view, namely, that a contract of employment containing a covenant not to compete, which is terminable at the will of either party, lacks mutuality in the sense presently contended by employee and for that reason leaves the ranks of contracts which a court of equity will enforce by the drastic remedy of injunction. Parenthetically, Byram, at 983, carefully distinguishes lack of consideration which renders a contract invalid and unenforceable at either law or equity from lack of mutuality in the sense contended by employee in the instant case which may render a covenant not to compete in a contract of employment unenforceable in equity. The court in Byram, recognizing that basic doctrines of equity come into play when deciding whether or not to grant injunctive relief, refused to enjoin violation of the restrictive covenant there at issue because of lack of mutuality.

This court feels constrained to hold that the view expressed in Sherman v. Pfefferkorn, supra, should prevail in this case and, therefore, the trial court did not abuse its discretion in enforcing the restrictive covenant in question by way of injunction, particularly so inasmuch as employee, before quitting, worked for employer for approximately three years pursuant to the contract of employment.

Judgment affirmed.

All concur.


author: FONES, Justice.

text:
    Leland BLAIR et al. v. STATE of Tennessee ex rel. Frank Watts et al.
    Supreme Court of Tennessee.
    Sept. 19, 1977.

      William S. Fleming, Courtney & Fleming, Columbia, for appellants.
    John W. Steenbergen, III, Sanders & Steenbergen, Columbia, for appellees.
   FONES, Justice.

OPINION

Defendants appeal from the action of the trial court in issuing a peremptory writ of mandamus directing the City Manager of Columbia to appoint as Assistant Chief of Police one of three candidates originally certified to him by the Civil Service Board as having the highest rating. After one of those three withdrew, the Board certified two additional candidates and the City Manager appointed one of them.

The controlling issue is whether the Charter provisions make it mandatory that the appointment be made from the three persons first certified.

The Assistant Chief of Police of Columbia was promoted and the City Manager notified the Civil Service Board that a vacancy existed in that position. There were seven (7) applicants for the position. Examinations were conducted and Pat Troope, Jack Thomason and Albert Lentz, having made the highest scores were certified to the City Manager, Barry Jones, as the eligibles from which to make the appointment. Prior to any further action, Pat Troope advised Mr. Jones, by letter, that he did not wish to be considered for the position.

Mr. Jones advised the Board of this development and requested a third candidate. The Board thereafter certified two (2) additional names, Frank Duncan and Ed Dooley, because they had made identical scores on the examination. Mr. Jones appointed Frank Duncan, which act precipitated the bringing of this lawsuit.

The learned trial judge held that it was mandatory that the Civil Service Board certify to the City Manager the three (3) persons with the highest rating; that the only discretion in the City Manager was to appoint one of the three certified to him in accord with Section 6.10 of the City of Columbia Charter. In issuing the peremptory writ of mandamus, the trial court directed that the civil service board withdraw the certification of Duncan and Dooley, that the City Manager set aside the appointment of Duncan and make the appointment from the list of the three (3) persons originally certified by the Civil Service Board.

First we will dispose of defendants’ assignment of error questioning the standing of the parties plaintiff to bring this action.

The original plaintiff was Frank Watts, a member of the Police force of the City of Columbia who was eligible to compete in the examinations for the eligible list from which the appointment would be made, but he did not elect to be an applicant. Later, Jack Thomason and Albert Lentz moved the Court for leave to join Watts as parties plaintiff. The Court granted the motion, over objection of defendants, and the complaint was duly amended to include Thoma-son and Lentz as parties plaintiff.

We pretermit any consideration of Watts’ standing to bring the suit, because that issue is moot. Thomason and Lentz, as two of the three officers originally certified to the Board as eligible for the position of Assistant Chief of Police have a special interest in this litigation and are subject to a special injury not common to the public generally. See Sachs v. Shelby County Election Commission, 525 S.W.2d 672 (Tenn.1975) and Bennett v. Stutts, 521 S.W.2d 575 (Tenn.1975). Either of these plaintiffs, or both of them, clearly have standing to bring this action and the issues for adjudication are the same whether pursued by Watts, Thomason and Lentz, or only by Thomason and Lentz.

Defendants also assert infirmity of the action brought by plaintiff because it was not supported by affidavit, relying upon T.C.A. § 23-2001. This code section merely states that circuit judges and chancellors have power to issue writs of mandamus upon petition or bill, supported by affidavit. At the time this section was originally enacted, 1858, the term “affidavit” was used interchangeably with “sworn petition.” The intent of the statute is simply that the facts alleged in a bill or petition for the writ of mandamus be supported by oath or affidavit. Cf. Whitesides v. Stuart, 91 Tenn. 710 at 714, 20 S.W. 245 (1892). The original complaint was sworn to by Frank Watts and the amended complaint was sworn to by Watts, Thomason and Lentz. This assignment of error must be overruled.

Defendants insist that the trial court was in error because mandamus is not available to review discretionary acts of public officials and that the Civil Service Board was performing a discretionary act in certifying individuals for appointment under the requirements of the City of Columbia Charter. Defendants reason that under the Charter the City Manager was entitled to have three (3) persons certified as eligibles for appointment, that the withdrawal of Troope leaving only two (2) persons for consideration created a situation not explicitly covered by the Charter, but calling for a discretionary interpretation by the City Manager and the Civil Service Board which they made correctly. It follows, insist defendants, that the certification of Duncan and Dooley and the appointment of Duncan carries out the meaning and intent of Section 6.10 of the Charter and that action, being discretionary, is not reviewable in a mandamus suit.

In Bradley v. State ex rel. Haggard, 222 Tenn. 535, 438 S.W.2d 738 (1969), plaintiff sought a writ of mandamus ordering the Hamblen County Quarterly Court to reapportion itself. Defendants asserted that redistricting would require the exercise of discretion by the members of the Quarterly Court and therefore could not be compelled by mandamus. Holding that argument invalid the Court said:

“Regardless of the amount of judgment involved in redistricting, the decision whether or not to redistrict is not discretionary with the Quarterly Court. In the legal sense an act is discretionary when an official has the lawful authority to determine of his own will whether or not he will perform the act. When the performance of an act is discretionary in the sense referred to above the only legal duty of the official is to exercise his discretion which he can do by either performing or declining to perform the act. When the performance of an act is truly discretionary, a writ of mandamus can only compel the official to exercise his discretion one way or another, it cannot dictate how the discretion is to be exercised.
Whether mandamus can be used to compel the Hamblen County Quarterly Court to reapportion itself depends on whether the members of the court have a legal duty to reapportion. The object of a writ of mandamus is to compel an official to perform an act which he has a legal duty to perform. When the details of performance require a public official to exercise judgment he may be compelled by mandamus to perform the duty but his judgment concerning the details of performance is left unfettered.
Clearly, the Avery case, supra [Avery v. Midland County, Texas, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45], imposes a duty on the Hamblen County Quarterly Court to reapportion itself if the plaintiffs’ allegations are correct. Reapportionment is not discretionary with the court members although they will be required to use their own judgment to work out the new district boundaries. Mandamus is the proper method to compel the magistrates to perform their constitutional duty to reapportion the Quarterly Court on a one man one vote basis.” 438 S.W.2d at 740.

Applying these principles to the instant case, we are of the opinion that no discretion exists in the Civil Service Board in regard to certifying the names of “the three persons who bear the highest rating under the regulations and examinations prescribed by the Board.” It is also mandatory that the City Manager “make the desired appointment from the eligible list so certified to him.”

Under other sections of Article 6 of the City of Columbia Charter the Civil Service Board shall prescribe qualifications of applicants and they clearly have discretion with respect to the scope and content of the examinations to be given, but when the grades are determined they have no choice but to certify the names of the three persons having the highest marks.

The fact that the City Manager has the discretion to appoint one of the three persons certified to him does not affect the mandate that he must appoint one of those three persons.

The Court’s opinion in State ex rel. Atkin v. City of Knoxville, 203 Tenn. 622, 315 S.W.2d 115 (1958) contains several quotes from McQuillin on Municipal Corporations, Third Edition, Volume Three, Section 12.80, which were approved and applied in that case. Two of the quotes are as follows:

“ ‘A valid appointment can only be made by due observation of the civil service rules, and must be made from the appropriate eligible list.’ ”
315 S.W.2d at 116.
“ ‘The methods prescribed by charter for the making of appointments in the civil service are mandatory and controlling.’ Campbell v. Board of Civil Service Com’rs of City of Los Angeles, 76 Cal.App.2d 399, 173 P.2d 58.”
315 S.W.2d at 116.

This action seeks only to enforce the mandatory aspect of the Charter requiring that the City Manager must appoint one of the three eligibles certified to him. We must therefore respectfully overrule the assignments of error challenging as defective the form of action selected by plaintiffs.

The question presented by Troope’s withdrawal, after certification of the three persons with the highest rating and prior to the making of the appointment presents a separate significant question, in our opinion, which the parties have only addressed obliquely. We have researched this question and find that the few reported eases from our sister states that involve analogous factual situations have been resolved by resort to explicit or implicit language in the applicable municipal charter or the regulations of the Civil Service Board. Here the Charter is silent and insofar as the record discloses, the Civil Service Board has no rule or regulation applicable to withdrawal, death, or any other incapacity of one or more of the three certified eligibles, during the interval of time involved here.

Gottlieb v. Kryzan, 80 Ohio Law Abst. 183, 157 N.E.2d 886 (Ct.App.1958), involved facts similar in some respects to the instant case. The Mayor of Youngstown, Ohio, was the appointing authority and the position involved was Manager of the Municipal Airport. The first examination produced only two persons with passing grades and the Mayor refused to make the appointment on the ground that the Charter required the Civil Service Board to certify three names. A second examination was given and one Scheetz, who held the interim appointment, stood sixth of eight candidates. The Civil Service Board certified to the Mayor the names of the three candidates having the highest grade, as mandated by the Charter. The trial court found from the evidence adduced that the Mayor, by persuasion, political influence, and coercion had induced candidates ranking first, second, fourth and fifth to “waive appointment” leaving only number three, one Magrini ahead of Scheetz. The Mayor refused to appoint Magrini, again because, he did not have three candidates, and called upon the Civil Service Board to certify three names with the obvious expectation that Scheetz would be among the three. Scheetz was appointed and suit was brought to invalidate the appointment and restrain payment of any further salary to Scheetz. The court decided it was not necessary to determine whether or not the action of the Mayor in inducing withdrawals from the first list made it necessary to appoint Magrini. The affirmative holding of the Court was “that the Mayor was bound to make an appointment from the list first certified to him and that he had neither the right to request nor to appoint from a second list. His appointment of Scheetz was therefore invalid."

It is implicit in the decision of the Ohio Court that the Youngstown City Charter, like the Columbia Charter, was silent with respect to withdrawal, death or other incapacity of a candidate between certification and appointment.

In this case, the witnesses denied knowledge of any pressure exerted upon Troope to withdraw. The record shows that he made the highest rating on the Civil Service Examinations but that he had a shorter period of service on the Columbia Police Force than the other candidates. No explanation for his decision to withdraw was offered in evidence. Under our decision Troope’s letter does not eliminate him from eligibility for appointment.

Whatever may be the appropriate procedure to prevent or discourage politically motivated tampering with the three candidates certified for civil service appointments, this Court is without authority to supply the void in the Charter of the City of Columbia or the regulations of the Civil Service Board. That is a legislative function. We are restricted to enforcing the procedure that is expressly prescribed. The application of the Charter provisions of the City of Columbia to the facts in this case mandates that the City Manager appoint Pat Troope, Jack Thomason or Albert Lentz to the position of Assistant Chief of Police.

Under this record we are not called upon to break the tie between Duncan and Dooley. However, we think it appropriate to observe that the mandatory duty to certify three persons having the highest ratings will not tolerate the inclusion of four or more because of ties. Obviously, some further procedure must be provided to deal with that eventuality.

The decree of the trial court is affirmed and this cause is remanded for enforcement of the writ of mandamus. Costs are adjudged against defendants.

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

      . The pertinent part of the Charter provision reads as follows:
      SECTION 6.10: Other than as provided in Section 6.11, every Civil Service position as herein defined unless filled by promotion, reinstatement, or reduction shall be filled in the following manner:
      The City Manager shall notify the Civil Service Board in writing of any vacancy in the service which he desires to fill, and shall request a certification of eligibles. The Board shall forthwith certify from the appropriate eligible list the names of the three persons thereon who bear the highest rating under the regulations and examinations prescribed by the Board. The City Manager shall thereupon make the desired appointment from said eligible list so certified to him or it.


author: BROCK, Justice.

text:
    Robert C. MOORHEAD and wife, Elizabeth A. Moorhead, Appellants, v. J. C. PENNEY COMPANY, INC., Appellee.
    Supreme Court of Tennessee.
    Sept. 19, 1977.

      William D. Vines, III, Butler, Vines, Babb & Threadgill, Knoxville, for appellants.
    Dalton L. Townsend, Hodges, Doughty & Carson, Knoxville, for appellee.
   OPINION

BROCK, Justice.

This is an action to recover compensatory and punitive damages for the alleged infliction of “severe emotional distress, exasperation, physical irritability and nervousness, headaches, anger and frustration” upon the plaintiffs by a course of conduct on the part of the defendant and its agents which plaintiffs characterize as “outrageous.” The trial court dismissed the complaint, holding that it failed to state a cause of action upon which relief may be granted. Plaintiffs appealed.

I

Plaintiffs allege that they maintained a charge account with the defendant, J. C. Penney Company, and that they returned a purchased item of merchandise to the defendant’s store in the West Town Shopping Mall in Knoxville with the agreement of defendant’s employees there that plaintiffs would be given a credit for the returned merchandise in the sum of $16.78. Due to a mistake in the defendant’s billing and accounting procedures, the plaintiffs’ next monthly statement indicated a charge, rather than a credit, in the amount of $16.78. Plaintiffs promptly called this mistake to the attention of defendant’s employees in Knoxville who assured them that the error would be corrected forthwith. The complaint describes the events which occurred thereafter as follows:

“HI. Plaintiffs repeatedly called the local office of the J. C. Penney Company and it was always explained that the mistake would be corrected but the threatening letters not only continued to come from the J. C. Penney Company but service charges were added to the mistaken charge so that the bill increased in amount. Further plaintiffs began to receive correspondence requesting payment on almost a daily basis.

“IV. As a result of the urging of the local office of the J. C. Penney Company, it was finally attempted by the J. C. Penney Company to correct the erroneous charge but instead of correcting same and wiping the slate clean, through another grossly negligent error, the charge was actually doubled so that after all finance and service charges were added it was suddenly claimed that plaintiffs owed $38.12 to the J. C. Penney Company and once again plaintiffs began to receive threatening letters from the J. C. Penney Company asking for payment of the due and total balance.

* * * * * *

“VI. In March, 1974, plaintiffs began to receive notices from the Knoxville Collection Agency which had been referred the matter (sic) by the J. C. Penney Company and following this many letters of a threatening nature came from the collection agency all at the instance of the J. C. Penney Company.

“VII. Plaintiffs went in person to the J. C. Penney Company and sat down with the manager of the store after having made copies of all the documents they received and the store manager for the West Town J. C. Penney Company local store admitted that the J. C. Penney Company had made a mistake and wrote a long correspondence to the Atlanta office beginning with the words ‘We goofed.’ Shortly thereafter plaintiffs received a notification which appeared to be in the nature of a lawsuit which indicated ‘final notice before suit.’

“VIII. Finally in July, 1974, a letter was forwarded by the J. C. Penney Company to the Knoxville Credit Bureau indicating that in fact J. C. Penney Company had reported an error and thereupon clients (sic) received information indicating a new account had been opened for them but were shocked to find that when the new account was opened they were again charged with the erroneous purchases and once again clients (sic) began to receive threatening letters and notices with finance charges added each month indicating such information as ‘our collection department now has your account!’ Plaintiffs have received a notice as recently as December, 1974, and it appears that the notices will continue to be sent. Plaintiffs have now received some 42 threatening letters and bills from the J. C. Penney Company all as a result of their gross neglect and error in spite of repeated requests of plaintiffs to correct the error including long distance phone calls to the Atlanta office and many calls to the local office of the J. C. Penney Company.

“IX. Plaintiff, Robert C. Moorhead, is an accountant with the Tennessee Valley Authority and his wife, Elizabeth Moor-head, is a schoolteacher. Neither plaintiff has ever been a party to a lawsuit previously, both enjoy an excellent reputation with regard to payment of bills and both have done all within their power to try to be reasonable in straightening out this matter with the J. C. Penney Company. It is averred that this incident has caused them considerable emotional distress and has resulted in some monetary loss to them including charges for phone calls, charges for copies of documents requested by the J. C. Penney Company, car expense for two trips to the West Town J. C. Penney Company, and the necessity to miss work and use vacation time in order to try to get the matter straightened out and the incurrence of mailing expense. The home life for plaintiffs has been considerably disrupted and their integrity questioned by defendant through its gross neglect. In fact as late as October, 1974, in a phone conversation with the Atlanta office of the J. C. Penney Company, said company through its agent indicated that the logical explanation for this matter was the possibility that the plaintiffs had given a ‘bad cheek’ to the J. C. Penney Company.

* * * * sk *

“XI. It is further averred that defendant’s conduct in failing to correct its obviously erroneous records for its own financial benefit has been intentional and so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and same is regarded as atrocious and utterly intolerable in a civilized community. Plaintiffs rely upon the theory of outrageous conduct.

* * * * * *

“XIV. Plaintiffs aver the actions of defendant, through its agents, has been willful, wanton, gross and intentional and that said acts have been ratified by defendant.

* * * * * *

“XVI. It is further averred that in October, 1974, defendant, through its agents, called Mrs. Elizabeth Moorhead, the wife of Robert Moorhead, and falsely and maliciously indicated that Mr. Moorhead did not pay his bills, had long been in delinquent with regard to its accounts and had not heeded reasonable requests of the defendant and the conversation tendered (sic) to degrade and injury (sic) Mr. Moorhead’s situation insofar as his financial reputation was concerned. In the same conversation it was demanded that the defendant be in immediate contact with Mr. Moorhead and it was explained that the only way to reach Mr. Moorhead since he was away on business was to call Mr. Moorhead’s employer, explain the circumstances and ask for an emergency contact. Defendant, through its agent, demanded and requested that this be done and it is averred that both publications amount to a slander both to Mrs. Moorhead and to the employer of plaintiff, Robert Moorhead. A document was forwarded to plaintiffs indicating that the defendant would call at plaintiffs place of business unless defendant was contacted by plaintiffs.

“XVII. It is averred that the repeated correspondence and verbal communication from defendant to plaintiff contained thinly veiled threats, indicated that plaintiff would be listed ‘as delinquent with your local credit bureau,’ that ‘immediate court action’ would be taken against plaintiff for the ‘principal, interest, court costs and attorneys fees’ and that ‘your credit privileges have been terminated.’ Plaintiffs aver these threats as well as threats that plaintiff did not pay his bills on time and was the type of person who might write a bad check were calculated to (sic) by defendant and did cause severe emotional distress, exasperation, physical irritability, and nervousness, headaches, anger, and frustrations. It is averred that a good credit reputation is an important asset in today’s society and that plaintiff’s job as an accountant require that he have a good credit reputation. Defendants knew and it is averred to be the fact that a mere inference of the matters being published and communicated and threatened by defendant would severely restrict plaintiff in job opportunities, in advancement opportunities, and in the ability to enjoy life in the community in which he lived. It is further averred that Mrs. Elizabeth Moorhead, being a schoolteacher, feared and justifiably feared that the mere communication of this possible bad debt would affect her ability to obtain employment. Consequently she begged her husband to pay the bill even though same was not owed and when he stood on right and principle, considerable friction and argument resulting, causing great family discord, threats regarding their marital status, and caused both parties to be greatly upset, emotionally distressed, and physically nervous and not well.

“XVIII. Plaintiffs further aver that the threats and calls to them continued for more than one year and continued long after defendant’s agents had admitted that the mistake was made and after defendant had been advised fully concerning the facts of how and why the mistake was made. It is averred that the reason the harassment and threats continued from the Collection Department of the defendant is that defendant has adopted a procedure to maximize its profits whereby its Collection Department is wholly unresponsive to communication of individuals and wholly unresponsive to communication from other departments within itself. This procedure and method was calculated to result in maximum collection effort using the threat of job security and credit reputation which this defendant knew was valuable to these plaintiffs. It is averred that this method of collection is calculated to cause collection of accounts not legitimately owed by the ability to apply credit pressure from a large wealthy corporation when the defendant knew or should have known that an individual would be severely damaged even though subsequently his or her name might be cleared.”

We hold that the foregoing allegations state a cause of action for intentional or reckless infliction of severe emotional distress by means of extreme and outrageous conduct. Medlin v. Allied Investment Company, 217 Tenn. 469, 398 S.W.2d 270 (1966); Johnson v. Woman’s Hospital, Tenn.Ct.App., 527 S.W.2d 133 (1975); First National Bank of Jacksonville v. Bragdon, 84 S.D. 89, 167 N.W.2d 381 (1969); George v. Jordan Marsh Company, 268 N.E.2d 915, 46 A.L.R.3d 762 (Mass.1971); Herman Saks & Sons v. Ivey, 26 Ala.App. 240, 157 So. 265 (1934); Bowden v. Spiegel, Inc., 96 Cal.App.2d 793, 216 P.2d 571 (1950); Barnett v. Collection Service Company, 214 Iowa 1303, 242 N.W. 25 (1932); La Salle Extension University v. Fogarty, 126 Neb. 457, 253 N.W. 424, 91 A.L.R. 1491 (1934); Kirby v. Jules Chain Stores Corp., 210 N.C. 808, 188 S.E. 625 (1936); Clark v. Associated Retail Credit Men, 70 App.D.C. 183, 105 F.2d 62 (1939); Duty v. General Finance Company, 154 Tex. 16, 273 S.W.2d 64 (Tex.1954); Christensen v. Swedish Hospital, 59 Wash.2d 45, 368 P.2d 897 (1962); Restatement of Torts, 2d, § 46, Comment (e); 38 Am.Jur.2d 57, Fright, Shocks, etc., § 44— Methods Used in Collection of Debts.

In Medlin, supra, this Court discussed at length the state of the law with respect to the tort which has become known as “outrageous conduct.” Although the Court concluded that the plaintiff’s allegations were not sufficient to state a cause of action, the tort was recognized as a part of the law of this state, at least as it was delineated in Restatement of Torts, 2d, § 46. The gist of the Court’s holding in Medlin was:

“. . . [W]e find [that] the two factors which must concur in order to outweigh the policy against allowing an action for the infliction of mental disturbance [are]:
(a) The conduct complained of must have been outrageous, not tolerated in civilized society, and
(b) as a result of the outrageous conduct, there must be serious mental injury.”

In our view, a jury could reasonably conclude that the conduct of the defendant, considered as a whole, was extreme, outrageous and intolerable in present day society; and, that the mental and emotional injuries alleged by the plaintiffs to have resulted from defendant’s conduct are serious. In reaching this conclusion we consider certain aspects of the defendant’s conduct, as alleged, to be especially significant. First, is the fact that defendant’s threatening letters, telephone calls, etc., continued long after defendant had acknowledged that its accounts were in error and that plaintiffs owed it nothing. The fact, if it be a fact, that the personnel of the defendant’s collection department did not possess the knowledge, which admittedly was possessed by those in another of its departments, that the alleged debtor did not in fact owe defendant anything is no matter of defense; such knowledge of the one department is imputed to the corporate entity, the principal, and its liability must be determined accordingly. Next, we regard as significant (1) the long duration of defendant’s course of conduct which is alleged by the plaintiffs to be “for more than one year” and (2) the volume of the threatening letters and bills, alleged to be “some 42” in number. Finally, we regard as significant the threats to deliberately injure the plaintiffs’ credit reputation and jeopardize their job security.

Our conclusion is supported by decisions in other jurisdictions dealing with like conduct. Throughout the development of this tort, certain tactics employed by creditors in attempts to collect alleged debts have been held to be actionable. See Barnett v. Collection Service Company, supra; La Salle Extension University v. Fogarty, supra; First National Bank of Jacksonville v. Bragdon, supra; George v. Jordan Marsh Company, supra; and other cases cited supra. A fair statement of the holdings of such cases is as follows:

“The general rule is that a creditor has a right to urge payment of a just debt, and to threaten to resort to proper legal procedure to enforce the obligation. Hence, the creditor is not liable for a mental or emotional disturbance, or for a bodily injury or illness, as a result of his mere attempt, by reasonable means, to collect. “On the other hand, the view generally taken is that improper methods used to collect a debt may be the basis for the maintenance of an action for a mental dr emotional disturbance produced thereby, or for a bodily injury or illness resulting from such mental or emotional disturbance, especially where the circumstances attending the effort to collect the claim are such as to invoke the general rule that one who wilfully or intentionally causes great emotional distress, without justification, is liable for such injuries. The latter rule has been applied where the creditor wilfully and intentionally sought to produce the mental or emotional disturbance in the debtor for the purpose of forcing the latter to pay the debt, by sending coarse and vindictive letters, or by threatening to appeal to the debt- or’s employer. In such cases, the question whether or not the plaintiff justly owed and should pay the debt has been regarded as immaterial. The same result has been reached as to a threat to sue where the creditor knew that the claim could not legally be collected.” 38 Am. Jur.2d 57, 58.

If liability is imposed upon a creditor for “purposely worrying [his debtor] sick” in an effort to collect a debt, Clark v. Associated Retail Credit Men, supra; a fortiori, one should be liable who by means of extreme and outrageous collection tactics willfully or recklessly inflicts mental and emotional injury, humiliation and shock upon another not actually his debtor. Herman Saks & Sons v. Ivey, supra; Bowden v. Spiegel, Inc., supra.

The standards here applicable, i. e., “extreme and outrageous” and “not tolerated in civilized society,” are, like “negligence” and other variable standards which are based upon the common sense of the community, primarily for application by the jury-

II

Finally, that punitive damages may, in the discretion of the trier of facts, be awarded in cases of recovery for outrageous conduct is already settled in this state. Johnson v. Woman’s Hospital, supra.

The judgment of the trial court is reversed and the cause remanded for further proceedings. Costs of this appeal are taxed against appellee.

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

      . We note that no objection was made to the form of the complaint despite its obvious prolixity. Averments in pleadings should be “sim-pie, concise and direct.” Rule 8, Tennessee Rules of Civil Procedure.


text:
    Thomas B. THAXTON, Jr., etc., et al., Appellants, v. The TRAVELERS INDEMNITY COMPANY, Appellee.
    Supreme Court of Tennessee.
    Sept. 26, 1977.

      William P. Ortale, Ortale, Kelley, Herbert & Crawford, Nashville, for appellants.
    I. Dyke Tatum, Glasgow, Adams & Taylor, Nashville, for appellee.
   OPINION

BROCK, Justice.

In this action two automobile liability insurance companies seek to recover contribution from a third insurance company which provided uninsured motorist coverage to the victim of the tort committed by their insureds.

Thomas B. Thaxton, Jr., was a passenger in an automobile driven by Cecil David Clark on a trip in connection with the business of Clark’s employer, Georgia-Carolina Land Company, when the Clark automobile collided with another vehicle driven by Calvin Mabe, an uninsured motorist. In the accident Thaxton was seriously injured and his driver, Clark, was killed.

Clark was insured against liability by the Georgia Farm Bureau Mutual Insurance Company; his employer, Georgia-Carolina Land Company was insured by Home Indemnity Company of Manchester, New Hampshire; and, Thaxton was insured by the Travelers Indemnity Company, the defendant herein, against damages caused by the negligence of an uninsured motorist, such as Calvin Mabe, the driver of the other vehicle. Thaxton recovered a judgment for damages for personal injuries against the estate of the decedent, Cecil David Clark, the Georgia-Carolina Land Company, Clark’s employer, and Calvin Mabe, the uninsured motorist. Under the liability provisions of their respective policies, the Georgia Farm Bureau Mutual Insurance Company, Clark’s insurer, and the Home Indemnity Company of Manchester, New Hampshire, the insurer of Clark’s employer, satisfied the judgment of $17,500.00. The uninsured motorist, Calvin Mabe, has paid nothing on this judgment.

The instant action was filed by the two liability insurance carriers and their respective insureds, all suing in the name of Thomas B. Thaxton, Jr., the named insured in defendant Travelers policy seeking to require Travelers to make “contribution” toward the $17,500.00 judgment under its contract to insure Thaxton against damages caused by the negligence of an uninsured motorist. Travelers filed a motion for summary judgment which was granted by the trial court and the complaint dismissed.

Both in this Court and in the trial court the parties have presented this case as if the issue presented were whether or not Travelers was entitled under the uninsured motorist statute, T.C.A., § 56-1152, to insist upon the “other insurance” clause of its policy and thus escape liability upon the ground that its uninsured motorist coverage was only excess insurance. Thus, the parties have exhaustively discussed decisions of this Court dealing with that problem, e. g., State Farm v. Barnette, Tenn., 485 S.W.2d 545 (1972); Shoffner v. State Farm Insurance Company, Tenn., 494 S.W.2d 756 (1972); Terry v. Aetna Casualty and Surety Company, Tenn., 510 S.W.2d 509 (1974); State Automobile Mutual Insurance Company v. Cummings, Tenn., 519 S.W.2d 773 (1975). However, as we see the case, the fundamental, indeed the crucial, issue is whether or not the plaintiff liability insurers have any right of action at all against Travelers as the uninsured motorist carrier for the tort victim, Thaxton. We hold that they do not have such a right.

The plaintiff insurance companies have no privity of contract with the insured, Thaxton, upon which to base a right of action on the policy. Therefore, they cannot stand in the shoes of Thaxton and assert his rights under the Travelers policy to protection from loss due to negligence of the uninsured motorist, Mabe. Neither are the plaintiff insurance companies subrogat-ed to any right of contribution against Travelers. They have none because their insureds, Clark and Georgia-Carolina Land Company, have none against Thaxton. Plaintiffs do have a right of contribution against Mabe, but Travelers has not insured Mabe’s liability; instead, it has insured Thaxton against loss caused by Mabe’s negligence.

Moreover, the language of our uninsured motorist statute, T.C.A., § 56-1148, does not require a contrary conclusion. The statute only requires coverage:

“. . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom

The insurance required by the statute is for the loss suffered by the insured, not the liability incurred by the uninsured motorist.

The conclusions which we have reached are supported by the decision of the Supreme Court of Appeals of Virginia in Bobbitt v. Shelby Mutual Insurance Company of Shelby, Ohio, 209 Va. 37, 161 S.E.2d 671 (1968). The precise question determined in that case was somewhat different from the one which we have determined in the case at bar and was stated by the court as follows:

“The question for decision in this case is whether an automobile collision insurance carrier, which has paid a loss sustained by its insured and caused by the negligence of an uninsured motorist, can recover the amount so paid from its insured’s automobile liability insurance carrier under the uninsured motorist endorsement in the latter’s policy.”

The court answered the question in the negative, and, in the course of the opinion, said:

“As a general rule, an insurer of an automobile against collision, which pays to its insured the amount of his damage, is subrogated to its insured’s right of action against third persons who may be responsible for the loss. [Citations omitted.] “However, as this court stated in Horne v. Superior Life Insurance Company, 203 Va. 282, 285, 123 S.E.2d 401, 404:
‘. . . It is not the purpose of the uninsured motorist law to provide coverage for the uninsured vehicle, but its object is to afford the insured additional protection in the event of an accident. Here, [the uninsured motorist carrier] does not stand in the shoes of . the uninsured motorist. Its policy does not insure [the uninsured motorist] against liability. It insures [the insured] . . . against inadequate compensation.’ See also General Accident Fire & Life Assurance Corporation v. Aetna, 208 Va. 467, 473-74, 158 S.E.2d 750, 754, and cases there cited.
“The uninsured motorist Rodwell is the person responsible for the loss, and Shelby Mutual does not stand in his shoes. “By contract Bobbitt obtained the coverage provided by both Motors Insurance and Shelby Mutual. Motors Insurance paid his loss according to its contract. It now seeks to shift the burden of that loss to another of his insurers.
* * * * * *
“No provision of the Uninsured Motorist Act specifically gives a collision carrier a right of subrogation against its insured’s uninsured motorist carrier, and nothing in the Uninsured Motorist Act indicates that the legislature intended subrogation in such a situation.”

Accord: Motors Insurance Corporation v. Surety Insurance Company, 243 S.C. 387, 134 S.E.2d 631 (1964).

The South Carolina court in Motors Insurance Corporation v. Surety Insurance Company, supra, said:

“[The collision carrier] is voluntarily engaged in the business of writing collision insurance on automobiles, for which it receives compensation by the collection of premiums from its policyholders. A covered loss occurred and [the collision carrier] has discharged its contractual obligation by payment to its insured. Having paid what it contracted to pay and retaining the benefits of its contract, it now seeks indemnity from another insurance company which did not cause or contribute to the loss and with which it has no privity contract.” 134 S.E.2d at 632.

In our opinion the analysis by the Virginia and South Carolina courts of the nature and function of uninsured motorist coverage is correct and we concur in it.

In our opinion, the decree of the Chancery Court granting the motion for summary judgment filed by Travelers was correct and it is affirmed. Costs of this appeal are adjudged against appellants and sureties.

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


author: HARBISON, Justice.

text:
    William G. ARNOLD, Petitioner, v. Dale L. CARTER et al., Respondents. Mitchell E. FLYNN et ux., Petitioners, v. Glen JENKINS et al., Respondents.
    Supreme Court of Tennessee.
    Sept. 26, 1977.

      S. Karen Solomon, Atchley, Atchley & Cox, Chattanooga, for petitioner William G. Arnold.
    Philip A. Condra, Joyce, Anderson & Meredith, Oak Ridge, for petitioners Mitchell E. Flynn, et ux.
    Ward Crutchfield, Crutchfield, Jenkins, Grantham & Teeter, Chattanooga, for respondents Dale L. Carter et al.
    Roger L. Ridenour, Ridenour, Ridenour, Ridenour, Bowers & Shumate, Clinton, for respondents Glen Jenkins et al.
   OPINION

HARBISON, Justice.

A single question of practice and procedure is presented in each of these cases. Although they were tried, appealed and argued separately, the cases can appropriately be treated in a single opinion. The issue, which has arisen in these and in a number of other recent cases, is whether there is a specified number of days within which a trial judge must approve a properly filed bill of exceptions.

In the case of Arnold v. Carter, counsel for the appealing party took a transcript of the evidence with supporting exhibits directly to the Chancellor instead of filing it with the clerk as required by statute. At the time it was lodged with the Chancellor, the bill of exceptions had been approved and signed by counsel for all parties. The Chancellor examined it, signed, approved and dated each of the exhibits, and then took the entire bill of exceptions to the office of the Clerk and Master. There it was marked filed, only four days after entry of the judgment appealed from. There can be no question, therefore, that it was timely filed and so stamped by the clerk of the trial court. By inadvertence, however, the Chancellor had failed to sign the transcript itself. This omission was not detected by any of the parties, and the case was duly docketed and briefed in the Court of Appeals. In its examination of the record that Court discovered the absence of the Chancellor’s signature on the transcript. It called the matter to the attention of counsel for the appellant, who obtained an affidavit from the Chancellor that he had indeed examined the bill of exceptions, intended to approve it, and that only by inadvertence had he failed to sign the transcript.

The Court of Appeals held that under the provisions of T.C.A. §§ 27-110, 111, it was mandatory that the trial judge sign the bill of exceptions within ninety days, at most, after entry of the order being appealed. Since the Chancellor had not signed the transcript within that time, the Court of Appeals held that it could not consider the bill of exceptions. Finding no error in the technical record alone, it affirmed the judgment of the trial court and did not reach assignments of error directed to the evidence preserved in the bill of exceptions.

In the case of Flynn v. Jenkins, the bill of exceptions was also approved by counsel for both parties and timely filed with the clerk of the trial court. The trial judge, however, did not sign it until more than ninety days after entry of the judgment appealed from. The Court of Appeals held that this was fatal to its consideration of the bill of exceptions, stating that since the appealing party “did not invoke the lodging and notice provisions of T.C.A. 27-110, the bill of exceptions must be treated as being filed under T.C.A. 27-111 which requires both the filing and signature of the trial judge on the bill of exceptions within the time allowed.”

Apparently in its consideration of both of these cases, the Court of Appeals overlooked the fact that in 1972 T.C.A. § 27-111 was rewritten and substantially amended, as also was T.C.A. § 27-110.

There is no question that prior to the 1972 amendment, T.C.A. § 27-111 did require that the bill of exceptions be “approved by the court and filed” within thirty days from entry of the order being appealed, or within an appropriate extension not to exceed sixty additional days.

This language was deleted from T.C.A. § 27-111 in 1972, however, and there is now no time specified in that section within which the trial judge must affix his signature to the bill of exceptions. As amended, T.C.A. § 27-111 simply specifies the time within which the bill of exceptions itself may properly be filed with the clerk. It no longer makes signature by the trial judge a prerequisite to such filing.

The method and process of filing the bill of exceptions are now dealt with in detail in T.C.A. § 27-110, as amended. That section expressly provides that filing is authorized when the bill of exceptions is lodged with the clerk within a specified period of time, bearing “the certificate of approval of the parties or the certificate of the court stenographer . .

The amended provisions of T.C.A. § 27-110 further state that the process of filing shall be complete upon the timely lodging of the bill of exceptions with the clerk, along with a certificate by the filing party that notice has been given to all other interested parties. When that procedure is used, the statute provides that any party who has not previously certified his approval of the bill of exceptions may file written objections with the clerk of the trial court within ten days of the filing. The trial judge shall then make such changes in the transcript “as the truth requires.”

We are of the opinion that these “lodging and notice” provisions of T.C.A. § 27-110 are applicable only when a bill of exceptions has been filed without the prior certificate of approval of all of the parties. This seems to be the clear meaning of the statute, and it would be redundant indeed to require that notice be given to the other parties of the filing of a bill of exceptions, in order that they might make objections, when they have already previously approved its contents.

Where all of the parties have certified their approval of the bill of exceptions at the time when it is lodged with the clerk, therefore, there is no requirement that further notice be given to any of the parties. The statutory requirements for filing are met upon the timely lodging of the bill of exceptions, bearing the approval of all parties, with the clerk of the trial court. He should, of course, stamp or mark it as filed, showing the date.

T.C.A. § 27-110 provides that when any bill of exceptions has been timely filed, by either of the methods above discussed, the trial judge shall affix his certificate of approval thereon “as soon as practicable after the filing thereof” or after the expiration of the ten-day notice period, and this action of the trial judge “shall comprise the requisite authentication.”

It seems to us that these provisions are clear, and that they both change and simplify the procedure under the former statutes and case law. The new statutes emphasize initially the timely filing of the bill of exceptions and describe the necessary steps. Authentication by the trial judge is, of course, essential, but it may now follow rather than precede filing, contrary to prior law. There is no specified number of days within which authentication must occur, so long as it is done “as soon as practicable” after the filing.

The amended provisions of T.C.A. § 27-110 were discussed by the Court in the recent case of State v. Williams, 547 S.W.2d 895 (Tenn.1976), in which the bill of exceptions had not been timely filed with the clerk and had never been signed by the trial judge. In that case, in discussing the filing requirements, the Court said:

“In short, filing is permissible either by the signatures of all counsel or by the unilateral action of the moving party accompanied by notice. But, regardless of how filed, the bill of exceptions does not become an official record of the trial proceedings unless and until authenticated by the trial judge.” 547 S.W.2d at 896.

Since the failure of the trial judge to sign the bill of exceptions promptly was clearly an oversight or an inadvertence in the Arnold case, and inasmuch as the bill of exceptions in that case was timely filed with the clerk and approved by all parties, we are of the opinion that the Court of Appeals was in error in striking it. The Court should have remanded the record to the trial judge so that he could properly affix his signature. This, of course, would not be permissible in a civil case if the bill of exceptions were not properly and timely filed with the clerk in the first place. Since it was so filed here, however, we are of the opinion that the signature of the trial judge can be supplied later. We accordingly direct that the record in that case be remanded to the trial judge for the affixing of his certificate of approval on the bill of exceptions, and that the record then be transmitted to the Court of Appeals for consideration of the assignments of error predicated thereon.

In the Flynn case we are of the opinion that the bill of exceptions should have been considered by the Court of Appeals, since it was timely filed showing written approval of all parties, and the signature of the trial judge was affixed thereto subsequently, no question having been raised that he did not sign “as soon as practicable” after the filing. That case will, accordingly, be remanded to the Court of Appeals for consideration of the assignments of error addressed to the bill of exceptions.

Costs in each of the cases will abide the ultimate decision of the Court of Appeals.

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

      . Special provisions for late filing in criminal cases are contained in the last paragraph of T.C.A. § 27-111, as amended.


author: O’BRIEN, Judge. GALBREATH, Judge,

text:
    Edwin HAMILTON and Billy Joe Linticum, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 16, 1977.
    Certiorari Denied by Supreme Court Aug. 1, 1977.

      Robert D. Lawson, Chattanooga, for Hamilton.

      Jess 0. Farr and Associates, Chattanooga, for Linticum.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Gary D. Gerbitz, Dist. Atty. Gen., John W. Goza, Jr., Asst. Dist. Atty. Gen., Chattanooga, for ap-pellee.
   O’BRIEN, Judge.

OPINION

These defendants were convicted of the first degree murder of Lee Ervin Wright, and sentenced to death by electrocution.

Defendants have filed separate briefs with assignments of error. We first review those issues raised by Hamilton.

This defendant says it was error to force him to trial after his counsel informed the court that defendant was partially paralyzed from a stroke suffered a few hours before.

At the beginning of the trial Hamilton moved for a continuance based on his physical condition, alleging he had incurred a stroke some hours earlier. The trial judge had personally conferred with defendant’s physician and was advised defendant was physically able to go to trial. The court was concerned by the possibility defendant was feigning incapacity. The trial judge had the opportunity to observe from defendant’s personal appearance whether his physical condition would enable him to stand the ordeal of a trial. Having considered the foregoing factors the judge was of the opinion that defendant was able to go to trial, and so ruled. This is a matter resting largely in the sound discretion of a trial court and we cannot see that this discretion has been abused. The assignment is overruled.

Defendant says the indictment against him should have been quashed on his plea of misnomer because it did not contain his correct name which was supplied with his plea. He also says the trial proceeded on an indictment originally returned by a grand jury in October, 1974 which had been changed by a different grand jury in February, 1975.

It seems that the original presentment, No. 128804, was returned on October 24th, 1974, and stated defendant’s name to be Edward Hamilton, Sr. On February 12th, 1975, a plea of misnomer was filed indicating defendant’s true name to be Edwin Vernon Hamilton, Sr. On February 18th, 1975, the plea was sustained and the presentment referred back to the grand jury for correction. On February 19th, 1975, a new presentment was returned by a different grand jury, under the same docket number, stating defendant’s name as Edwin Vernon Hamilton.

Defendant cites Holder v. State, 143 Tenn. 229, 227 S.W. 441, as authority for the rule that an indictment may not be recommitted to a grand jury for amendment at a term subsequent to that at which it was found. This statement of the law is correct, but does not offer defendant any comfort in this case. It is true that the trial judge neither abated nor quashed the first presentment returned, and by the language of his order sustaining the plea of misnomer the presentment was referred back to the grand jury for correction. However, an examination of the Technical Record makes it plain that the February Grand Jury returned an entirely new presentment charging defendants with first degree murder. It makes no difference if the original presentment was not quashed for, as stated in Holder, supra:

“.the State could have gone to trial on the second indictment without having first disposed of the first. If both indictments charged the same offense, the defendant, of course, could not be tried on the first indictment after a trial had been had on the second, for that would be to put him twice in jeopardy. We are unable to see how the defendant would be prejudiced where he is tried only one time on a valid indictment for a particular offense.”

We also overrule the assignment contending that the failure to include the suffix, “senior”, to defendant’s name in the presentment is reversible error. We note that counsel for defendant declined to agree to an amendment to the presentment to add the questioned suffix, although the amendment might have been made without his permission. We agree with the rule as stated in 65 C.J.S. Names, § 5b, p. 8;

“The suffix “Senior” or “Sr.,” “Junior” or “Jr.,” “second” or “2d,” or a word of similar import, added to a name, is ordinarily not a part of the name, although in appropriate circumstances it may be required to be so regarded. It is not necessary to add it to a person’s name in a writ or other legal paper, and to omit or add such appellation or cognomen is harmless error, both in civil and criminal proceedings.”

By assignment four it is said it was error to limit defense counsel’s examination of jurors on voir dire regarding their personal feelings on capital punishment. We will consider this assignment in conjunction with assignment No. Seven.

For his fifth assignment Hamilton, says his counsel was denied sufficient time to examine and investigate a report of a police officer, that this action of the trial judge hindered cross-examination of the officer and entitles him to a reversal.

The main contention is that counsel should have been permitted to examine the officer’s notes of the investigation more thoroughly to determine if they contained any exculpatory evidence. On the other hand the State says because the record does not disclose the length of time allowed defense counsel to examine the report, nor that the trial judge directed him to return the papers to the officer, it is impossible for this Court to determine what happened or to understand the defense complaint.

Neither the defense nor the State have offered any authority to sustain their contentions. See Roberts v. State, 4 Tenn.Cr.App. 537, 474 S.W.2d 165; Rockett v. State, 475 S.W.2d 561, Tenn.Cr.App.1971. Defense counsel was cross-examining an officer from the Chattanooga Police Department who was using notes to refresh his recollection. Counsel had previously examined the officer’s memoranda. Near the close of his cross-examination he asked to again see the report. The trial judge admonished- him to, “move along” commenting, “we can’t be reading and taking time on this”. No objection was made to the court’s action. The task of a trial judge is not an easy one. Among other things, it is his job to keep the proceedings moving along in an orderly fashion while at the same time giving counsel for both sides adequate opportunity to engage in all necessary examination of witnesses. The complaint goes to a procedural matter which is one within the discretion of the trial court in his handling of the trial proceedings. He had permitted defense counsel to inspect the memoranda of the police officer, as he properly should have done. See Leach v. State, 220 Tenn. 526, 420 S.W.2d 641. This Court dealt extensively with this subject in Fox v. State, 1 Tenn.Cr.App. 308, 441 S.W.2d 491, where, among other authorities, we cited from 82 A.L.R.2d 489, as follows:

“The extent to which witnesses may refer to or read from memory refreshing mem-oranda, and the extent to which such memoranda may be inspected by counsel or jury is usually, if not always, a matter within the discretion of the trial judge, whose ruling will not be disturbed in the absence of an abuse of such discretion.”

We are unable to find an abuse of discretion from this record and overrule the assignment.

Defendant says the trial court erred in refusing to grant him a copy of the autopsy report on his deceased son.

This was a tragic case in which the aged defendant, Hamilton, was charged with hiring his co-defendant to kill the deceased, Lee Ervin Wright, who had previously been convicted for the homicide of Hamilton’s son. In the course of the trial defendant called as a witness the Assistant District Attorney General who had successfully prosecuted Wright for the murder of Harold Hamilton. In a post trial motion a request was made to require the State to provide defendant with a copy of the autopsy report on defendant’s deceased son. The only ostensible use for this report would have been an endeavor to impeach the testimony of defendant’s own witness. The assignment is without merit and is overruled.

Defendant, Linticum makes a number of assignments of error, some in common with Hamilton. These will be considered jointly. Separately, he says it was error to require him to go to trial with an incompetent co-defendant, and to do so violated his Sixth Amendment right to confrontation.

The State has failed to brief this assignment. In reviewing the record we conclude there are several reasons why the assignment must be overruled.

In the first instance there is no evidence of incompetency on the part of Hamilton. In a jury out hearing his personal physician, who had treated him for some thirty-five years, testified Hamilton was seventy-five years old, and because of his advanced age, had reached a degree of senility which would hinder his ability to withstand rigid cross-examination. This did not render him incompetent. Defendant claims a Bruton violation of his Sixth Amendment right to confrontation. (Bruton v. U. S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476). We know of no authority which holds that the Bruton rationale applies except in cases of custodial type confessions, nor have we been cited to any such by the defendant. Defendant’s objection was to a statement made by Roger Dale Wright, grandson of Hamilton. The testimony was in regard to a statement made to him by Hamilton in Linticum’s presence to the effect that Linti-cum had killed Lee Wright and he, Hamilton, had paid him fifty dollars ($50.00) to do it. The witness had just previously testified that Linticum had admitted the killing in his presence. We find no Bruton violation and overrule the assignment.

By his third assignment defendant says the evidence was insufficient to support the verdict of the jury which was contrary to the weight and legal sufficiency of the evidence. The sixth assignment objects to denial of a directed verdict.

Defendant argues there were no eye witnesses to the alleged homicide and the jury’s verdict was based on circumstantial evidence which was insufficient because of conflicts in the testimony. He says both physical and expert evidence introduced by the prosecution was inconclusive. That there was no evidence to indicate premeditation and the only evidence tending to show a murder for hire was testimony relative to an uncorroborated admission by the co-defendant, insufficient in itself to prove a requisite element of murder in the first degree under the provisions of T.C.A. Sec. 39-2402.

In addition to defendant’s own admission to the homicide, and the means by which it was accomplished, there was a great mass of evidence pointing directly to both defendants. The victim’s mother testified that he left her home with Linticum about 01:00 P.M. on the day of the homicide. Time of death was fixed at between 01:00 and 02:00 P.M. There was testimony that defendant borrowed a shotgun from a relative which had not been returned prior to the homicide. On the day of the occurrence defendant obtained shotgun shells from Hamilton’s grandson. The cause of death was established to be multiple shotgun wounds. Defendant made incriminating remarks prior to the killing and an admission, after the fact, that he was responsible for it. Another witness saw his automobile covered with blood after the homicide and testified that defendant asked her to keep a gun which he had in his possession. The elements of premeditation, deliberation, and malice could properly be inferred from the circumstances surrounding the homicide and the fact that it was accomplished with a deadly weapon. Nance v. State, 210 Tenn. 328, 358 S.W.2d 327; Davis v. State, 1 Tenn.Cr.App. 479, 445 S.W.2d 933; Edwards v. State, 221 Tenn. 60, 424 S.W.2d 783. Such conflicts as may have existed in the testimony of the witnesses were resolved by the verdict of the jury as well as the credibility of those witnesses. Wilson v. State, 2 Tenn.Cr.App. 468, 455 S.W.2d 172. Defendant has failed to carry the burden imposed upon him on appellate review to show that the evidence preponderates in favor of his innocence and against the verdict of the jury. Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768. Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799. Under the evidence in this case he was not entitled to a directed verdict. The assignments are overruled.

Defendant says he suffered a deprivation of his constitutional right to a fair trial because the State failed to provide him with results of tests performed by the Federal Bureau of Investigation which were exculpatory in nature.

Defendant relies on the United States Supreme Court decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, as well as Branch v. State, 4 Tenn.Cr.App. 164, 469 S.W.2d 533, to the effect that nondisclosure or suppression of evidence or information favorable, or useful to the defense, even though there is no showing of bad faith, offends those fundamental constitutional concepts of a fair trial, and violates due process where the evidence is material either to guilt or to punishment. A pre-trial motion was filed on November 20th, 1974 for results of analytical tests which would exculpate defendant. The motion was granted on November 25th, 1974, with the limitation that it was sustained within code limits. The FBI analysis reports were not furnished to defendant pretrial. At trial an Federal Bureau of Investigation expert testified that blood found on the trim mold of defendant’s automobile was human blood. Analysis of the auto carpeting disclosed human blood which demonstrated an “A blood group substance”. It was not possible to demonstrate the presence or absence of another part of the blood group system such as a combination of A and O, or A and B types, therefor the analysis was inconclusive as to blood type. The upholstery and console of the automobile contained human blood stains which could not be identified as to blood types. Defendant’s trousers had human blood stains which were also “A blood group substance”. The tests were inconclusive as to the existence of other blood groups. Co-defendant Hamilton’s sweater contained human blood stains positively identified as Group A. His socks had human blood stains identified as Group A but inconclusive as to the existence of other blood groups. Blood stains on the victim’s tee shirt were positively identified as Group A. It is defendant’s theory that the test results were inconclusive and therefor exculpatory in nature.

Defense Counsel has zealously pursued his client’s interest however after serious thought we have reached the conclusion that his reliance on Brady v. Maryland, supra, and Branch v. State, supra, is misplaced. The argument seems to confuse the difference between actual suppression of evidence favorable to the accused by the prosecution, and the right to discovery in criminal cases, which is limited in this State by statute. West v. State, 3 Tenn.Cr.App. 671, 466 S.W.2d 524; State v. Dougherty, 483 S.W.2d 90, Tenn.1972; Pique v. State, 499 S.W.2d 4, Tenn.Cr.App. 1973. While there is some suggestion in Giles v. Maryland, 386 U.S. 66, p. 75, 87 S.Ct. 793, 17 L.Ed.2d 737, that a, “work product” is discoverable, it seems to be only in a case where it is actually exculpatory of a defendant, or might be effectively utilized in obtaining further evidence. We do not find this to be true in this case. Actually, the evidence was not suppressed, but was introduced by the State at trial. In examining the evidence we find it to be at best, neutral, and taken in its entirety might well have been cast as inculpatory rather than otherwise. Since the evidence was not suppressed at trial, and is not, in our view, exculpatory in nature, the assignment must be overruled.

Defendant says the trial court erred in limiting cross-examination of prosecution witnesses.

Examination of the record at the page references made in defendant’s brief indicates objections to this line of questioning were only made and sustained where there was a possibility of a hearsay violation. Defendant was allowed considerable latitude in examining witnesses on the points he raises as an issue in his brief. The scope of cross-examination is a discretionary matter with the trial court which will not be interfered with in the absence of some indication of abuse. Hudgins v. State, 3 Tenn.Cr.App. 148, 458 S.W.2d 627.

Defendant complains his motion for a preliminary hearing was denied.

Defendant was arrested on October 19th, 1974. The original presentment was returned on October 24th, 1974. Thirty-two days later on November 20th, 1974, defendant filed a motion for preliminary hearing. Although defendant was arrested on probable cause, and not on a warrant, on application properly made, it may be that he would have been entitled to a preliminary hearing. However, the application was not timely made, nor was there a motion to abate the indictment made within thirty days from the date of his arrest. T.C.A. Sec. 40-1131. The assignment must be overruled.

By his tenth assignment defendant Linticum says the argument of the prosecuting attorney was prejudicial.

We have examined the argument of counsel with particular reference to the point in the argument delineated in defendant’s brief. We do not find reversible error. The assignment is overruled.

The remainder of the assignments submitted by each of the defendants relate to the punishment fixed by the jury, or to the capital punishment statute mandating death by electrocution upon conviction for first degree murder. These assignments have been pretermitted by the State Supreme Court’s decision in Clarence L. Collins, Jr. v. State, 550 S.W.2d 643, Tenn., and State v. Frank Carl Morgan (1977), holding the death penalty statute unconstitutional. The Governor of this State has commuted the death sentences to life imprisonment in the penitentiary. The Supreme Court of Tennessee has upheld the validity of this executive action. Collins v. State; and State v. Morgan, Opinion on Petition to Rehear (May 2, 1977).

The judgment of the trial court is affirmed as modified by executive action commuting the sentences to life imprisonment in the penitentiary.

GALBREATH, and RUSSELL, JJ., concur.

GALBREATH, Judge,

concurring.

I concur with a strong recommendation that, if the defendant Hamilton’s past record and present circumstances merit clemency, he be seriously considered for probation if an application is made on his behalf to the Executive. Surely, the act motivating the defendant’s departure from what may well have been an orderly and productive life, the murder of his own son by the victim in this homicide, suggests mitigating factors to a degree seldom found.


author: DWYER, Judge.

text:
    Fred ELLIS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    July 14, 1977.
    Certiorari Denied by Supreme Court Sept. 26, 1977.

      Farrell A. Levy, J. D. Lee Law Offices, Madisonville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Richard A. Fisher, Dist. Atty. Gen., Cleveland, for appellee.
   OPINION

DWYER, Judge.

Appellant, Fred Ellis, was convicted by a jury of assault with intent to commit murder in the second degree and sentenced to serve not less than two nor more than five years in the State Penitentiary.

In his appeal to this court he has made a single assignment of error which questions an evidentiary ruling of the trial court. Appellant contends that the trial judge erred in instructing the jury that the testimony of one of the defense witnesses could be considered for impeachment purposes only. While it is not necessary in answering this one assignment to give the customary enumeration of facts which the jury had before it, a synopsis of the pertinent evidence will be given.

The evidence as presented by both sides revealed that a feud had existed for at least four years between Myles Witt, the victim of the assault in this case, and several members of the Ellis family. The resulting hostilities included numerous armed encounters, shots being fired into an occupied dwelling and the shooting death of a member of the Ellis clan.

Myles Witt, testifying concerning the assault on his person sub judice, stated that Ellis had fired upon him and his wife without provocation, while he was driving his Bronco automobile. On. cross-examination he denied ever threatening to kill the appellant.

The appellant Ellis, testifying in his own behalf, admitted shooting at Mr. and Mrs. Witt, but claimed that he was acting in self-defense, that is, he was changing a tire on his vehicle and that Witt tried to run him down. He denied ever threatening to kill Witt.

The appellant then attempted to introduce through the testimony of one W. E. Wallace evidence that Myles Witt had threatened to kill Fred Ellis some three years prior to this incident. The trial judge upon objection by the State held that the statement was too remote to be admitted as a prior threat, but would allow the evidence to be admitted for the purpose of impeaching Witt’s testimony. This ruling is the basis of appellant’s assignment of error.

The State contends that, since a similar objection was raised by the defense and a similar ruling made by the trial judge as to certain testimony by a State’s witness prior to Mr. Wallace'taking the stand, the appellant should not now be allowed to complain. The fact that the trial judge may have ruled erroneously twice, if at all, in no way hinders the appellant in seeking review of the adverse ruling by such reasoning.

Appellant, having raised the issue of self-defense, was entitled to show prior communicated threats made by the victim. Jackson v. State, 65 Tenn. 452, 460 (1873) accord, Wallace v. United States, 162 U.S. 466, 16 S.Ct. 859, 40 L.Ed. 1039 (1896). The Jackson case clearly states that in order for the jury to determine whether or not the accused was acting under a reasonable fear of his own life, evidence of previous threats and acts of hostility by the victim, as well as his character and the facts and circumstances immediately preceding the assault should be admitted and it is error not to do so. We agree.

Our finding that the trial judge’s limitation of the introduction of the prior threat was error does not, however, dispose of this assignment. As previously noted, there was ample evidence before the jury of the violent hatred which had existed for some time between these two parties. Any further evidence of threats or hostile actions would have been, we think, cumulative only. Holt v. State, 170 Tenn. 76, 91, 92 S.W.2d 397 (1935). In other words, with the jury’s rejection of the appellant’s self-defense plea, we think the limitation by the court that the testimony of Wallace was to be considered only for purposes of impeachment of Witt’s testimony under these facts and circumstances was harmless. Therefore, after examining the entire record, we cannot say that it affirmatively appears that the error complained of has affected the results of this trial.

We hold that the error committed was harmless under T.C.A. 27-117 and affirm the judgment of the trial court.

WALKER, P. J., and TATUM, J., concur.


text:
    Billy REECE, Jr., Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    July 26, 1977.
    Certiorari Denied by Supreme Court Sept. 26, 1977.

      Ben W. Hooper, II, Newport, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, A1 Schmutzer, Jr., Dist. Atty. Gen., Richard Vance, Asst. Dist. Atty. Gen., Sevierville, and William M. Leibrock, Asst. Dist. Atty. Gen., Newport, for appellee.
   OPINION

DWYER, Judge.

This appeal from a conviction for committing the offense of assault and battery with punishment of confinement for eleven months and twenty-nine days plus a fine of $1,000 is the aftermath of a melee which occurred on the parking lot of the Red Lantern Tavern located in Cocke County in the evening hours of July 26, 1976.

The appellant was sitting on the hood of the victim’s car when the victim’s wife came out of the tavern and asked him to get off the automobile. When the victim, Benny Banks, came outside he and the appellant “had words” which resulted in appellant striking Banks on the head with a pistol. This precipitated a general free-for-all among the friends of the appellant and the victim.

The victim Banks ended up in the hospital with gunshot wounds to his leg and ankle when the appellant shot at his feet as Banks was going to his car. The appellant suffered stab wounds which he related were inflicted upon him by Banks.

The appellant testified that he shot at Banks’ feet because he was fearful that Banks was going to obtain a weapon from his car and that his firing was an act of self-defense.

First, the State has filed a motion to strike the bill of exceptions as not having been timely filed. This motion is overruled. The motion for a late bill of exceptions was sustained by Judge Duncan of this court by an order entered on January 21, 1977. With the bill being late due to a misunderstanding by the official court reporter as to the required filing date, we are in accord with Judge Dimcan’s order.

We think appellant’s assertion that his act of shooting at the victim was done in self-defense raised a question for the jury. Henley v. State, Tenn.Cr.App., 520 S.W.2d 361, 363 (1974). The jury has by its verdict rejected that defense. We are in accord. With the victim relating that the appellant was the aggressor and shot him during the assault, the jury has accredited by its verdict the evidence presented by the State that the appellant unjustifiably shot the victim and thus committed an assault on his person. The burden is on the appellant to show that the evidence preponderates against his guilt and in favor of his innocence. Sikes v. State, Tenn., 524 S.W.2d 483 (1975). This he has not done. The evidence is sufficient to sustain the verdict. The assignments relating thereto are overruled.

The punishment being within the limits as prescribed by law, T.C.A. 39-105, it is not excessive. Hoskins v. State, Tenn.Cr.App., 489 S.W.2d 544 (1972). This assignment is overruled.

The appellant’s next assignment claims error due to four “unwarranted” questions asked by the Attorney General during the cross-examination of appellant. (1) The prosecutor’s question referring to a restaurant at which the appellant had been before the melee as being a “joint” did not affect the results. (2) With no objection to the State’s cross-examination of appellant about smoking marijuana on his trips outside the tavern, there is no error. (3) The prosecutor asked if three of appellant’s companions belonged to a motorcycle gang; no objection, no error. (4) When the appellant responded that he did not have the bloody shirt he wore that night, the prosecutor remarking, “You don’t have that, oh.” was not error. The control and scope of cross-examination is within the sound discretion of the court. State v. Fowler, 213 Tenn. 239, 373 S.W.2d 460 (1963). We find no abuse here. The assignment is overruled.

While we deplore the court answering notes sent by the jury after they had begun deliberations, Brown v. State (April 1977 at Knoxville, unreported) by Presiding Judge Walker, the trial court by calling the jury into the courtroom and amply recharging the jury cured any error. This assignment is overruled.

One of the notes sent by the jury asked the question that, if there was a variance wherein the victim was alleged in one part of the indictment to be Bernie and in another part to be Benny, could the case be thrown out. The question being one of law and not being raised before appellant entered his plea of not guilty, the court answering in the negative was not error. This and all other assignments being overruled, the judgment of the trial court is affirmed.

WALKER, P. J., and TATUM, J., concur.