author: HARBISON, Justice. HENRY, Justice, HARBISON, Justice. HENRY, Justice, BROCK, Justice,

text:
    Clarence L. COLLINS, Jr., Petitioner, v. STATE of Tennessee, Respondent. STATE of Tennessee, Petitioner, v. Frank Carl MORGAN, Respondent.
    Supreme Court of Tennessee.
    Jan. 24, 1977.
    On Rehearing May 2, 1977.

      See also, 550 S.W.2d 636.
    Eric D. Christiansen, Larry W. Weems, Greeneville, for petitioner Collins; Jack Greenberg, James M. Nabrit, III, David Evan Kendall, Peggy C. Davis, New York City, Anthony G. Amsterdam, Stanford, Cal., Don Donati (Student), Knoxville, of counsel.
    David L. Raybin, Weldon B. White, Jr., Asst. Attys. Gen., Nashville, Stephen M. Bevil, Thomas J. Evans, Asst. Dist. Attys. Gen., Chattanooga, for petitioner State.
    David L. Raybin, Weldon B. White, Jr., Asst. Attys. Gen., Nashville, H. H. Win-stead, Dist. Atty. Gen., Rogersville, Ben K. Wexler, Asst. Dist. Atty. Gen., Greeneville, Richard C. Jessee, Asst. Dist. Atty. Gen., Morristown, for respondent State; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
    H. H. Gearinger, Chattanooga, for respondent Morgan.
    Lionel R. Barrett, Jr., Tenn. Assoc, of Crim. Lawyers, Nashville, amicus curiae.
   OPINION

HARBISON, Justice.

Petitioner Clarence L. Collins, Jr., was convicted of murder in the first degree in connection with the death of Merchie Ford Bacon and sentenced to death by electrocution. He was also convicted of murder in the second degree in connection with the death of Sara Gilbert Bacon and sentenced to ninety-nine years in the state penitentiary. Both convictions, including the death penalty, were affirmed by the Court of Criminal Appeals.

Certiorari was granted upon the petition of Collins, primarily in order that this Court might consider the constitutionality of the death penalty under existing state statutes. Other assignments of error were made on behalf of Collins, and we have given consideration to these. All of them were dealt with properly and adequately, however, in the opinion of the Court of Criminal Appeals, and we do not find that any of them have sufficient merit to warrant reversal of the convictions. Accordingly the conviction and sentence of the petitioner Collins in connection with the death of Mrs. Bacon are affirmed, and all of his assignments of error, other than those involving the death penalty in this state, are overruled. His conviction of murder in the first degree of Mr. Bacon is also affirmed.

Respondent Frank Carl Morgan was convicted of murder in the first degree while in the perpetration of a burglary in Chattanooga, Tennessee on October 13, 1974. His conviction for this offense was affirmed by the Court of Criminal Appeals, but, in a divided decision, that Court held unconstitutional the Tennessee statutes imposing the death penalty. The sentence in that case was, therefore, set aside and the cause remanded for resentencing. We granted the petition of the State on the punishment issue, and the only questions before the Court in the Morgan case concern the death penalty and the proper disposition of the case if that penalty cannot validly be imposed under existing state law.

Following the decision of the United States Supreme Court in the case of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the General Assembly of Tennessee, like that of many other states, reconsidered and redrafted the state statutes providing for the death penalty. The first Tennessee statute following Fur-man was Chapter 192 of the Public Acts of 1973. This statute redefined the offense of first degree murder, and provided for a separate sentencing hearing following an adjudication of guilt. It permitted the jury to consider aggravating and mitigating circumstances, and provided for automatic review by the state Supreme Court of cases in which the death penalty was imposed.

In the case of State v. Hailey, 505 S.W.2d 712 (Tenn.1974), the 1973 statute was held unconstitutional under the provisions of Article II, Section 17, of the state constitution, upon the ground that its provisions embraced more than one subject, and not all of the subject matter was set forth in the title or caption.

Since the 1973 legislation was invalid, prior state law dealing with the subject of murder in the first degree was left unaffected. State v. Dixon, 530 S.W.2d 73 (Tenn.1975). This earlier law had been codified in Williams Tenn.Code Ann. §§ 10768 et seq., T.C.A. §§ 39-2402 et seq.

Subsequently, by Chapter 462 of the Public Acts of 1974, the General Assembly amended the definition of murder in the first degree as contained in T.C.A. § 39-2402, and provided a mandatory death penalty for all persons convicted of that offense or as accessory before the fact of that crime. This mandatory death penalty was the subject of the opinions of the Court of Criminal Appeals in the cases now under consideration.

The 1974 statute makes no provision for a separate sentencing hearing, apart from the trial in which guilt is determined, and makes no provision for consideration of aggravating or mitigating circumstances, other than such as may inhere in the definition of the offense itself. Presumably the General Assembly, by making the death penalty mandatory, sought to eliminate the imposition of that penalty in an arbitrary or capricious manner prohibited by the decision of the United States Supreme Court in Fur-man, supra.

On July 2,1976 the Supreme Court of the United States rendered opinions in five cases, giving consideration to the death penalty statutes of the states of North Carolina, Florida, Louisiana, Georgia and Texas. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and the opinions in its four companion cases.

In the cases of Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), statutes providing for mandatory sentence of death upon conviction of murder in the first degree were held to violate the Eighth and Fourteenth Amendments to the Constitution of the United States. Statutes giving to the sentencing authority “controlled discretion” in the other three states were sustained.

Subsequently, on July 6,1976, a mandatory death penalty under the statutes of Oklahoma was also held invalid. Williams v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 (1976).

We have carefully considered the texts of the various opinions of the Supreme Court of the United States, and we are of the opinion that the mandatory death penalty of the 1974 Tennessee statute here under consideration cannot be distinguished in any meaningful or significant way from the North Carolina, Louisiana and Oklahoma statutes invalidated in the cases above referred to. Accordingly, the death sentences in each of the cases under consideration must be set aside, and Section 3, Chapter 462 of the Public Acts of 1974, as codified in T.C.A. §§ 39-2405, 2406, is declared unconstitutional, for the reasons and upon the grounds stated by the United States Supreme Court in Woodson and Roberts, supra.

Setting aside the sentences in these cases, of course, does not have the effect of invalidating the provisions of T.C.A. § 39-2402, defining the offense of murder in the first degree, or of the convictions obtained thereunder. It does have the effect of reviving the law prior to 1973, insofar as punishment is concerned. Statutes in existence prior to the adoption of Chapter 192 of the Public Acts of 1973 and prior to the adoption of Section 3, Chapter 462, of the Public Acts of 1974, provided that persons convicted of murder in the first degree

“. . . shall suffer death by electrocution, or be imprisoned for life or over twenty (20) years, as the jury may determine.” Williams Tenn.Code Ann. § 10771, T.C.A. § 39-2405.

Prior law, originating in Chapter 5 of the Public Acts of 1919, provided that the convicting jury should fix punishment at death, but they might “if they are of opinion that there are mitigating circumstances,” fix the punishment at imprisonment for life or for some period over twenty years. T.C.A. § 39-2406.

The “mitigating circumstances” in the prior law were not delineated by statute, although some of them were considered in reported cases construing the statute. Nevertheless, we are of the opinion that the pre-1973 statutes, like the 1974 Act, did not prescribe sufficiently detailed procedures to accomplish “controlled discretion” by the jury in the imposition of the death penalty, as required by the recent decisions of the United States Supreme Court above referred to. The death penalty provisions contained in them are invalid, in our opinion, under the principles announced in those cases and in Furman v. Georgia, supra. For this reason, we cannot approve the suggestion made by the State, in its supplemental brief, that the prisoners in these cases and others similarly situated be given resentencing hearings to include the possibility of death sentences under the earlier Tennessee statutes.

In similar cases in the past, this Court has held that the proper procedure to be followed, where the death penalty cannot validly be carried out, is for the cause to be remanded for a new sentencing hearing before a jury. The fact that punishment is fixed by a different jury from that which assessed guilt was held not to violate either constitutional or statutory rights of the accused in Hunter v. State, 496 S.W.2d 900 (Tenn.1972). See also Farris v. State, 535 S.W.2d 608 (Tenn.1976) and the analysis of the subject on petition to rehear, 535 S.W.2d at 620-621.

Accordingly these cases are remanded to the respective trial courts from which they originated for a resentencing hearing, with punishment to be fixed in each case from twenty years to life imprisonment. Costs in each case are taxed to the defendant.

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

HENRY, J., dissents in part.

HENRY, Justice,

concurring in part; dissenting in part.

I am in full accord with so much of the majority opinion as holds that the Tennessee death penalty statute is unconstitutional. This conclusion is mandated by the recent decision of the Supreme Court of the United States as set forth in the main opinion.

I.

The only remaining questions are whether these defendants, and others similarly situated must be given (1) a new trial, or (2) a sentencing hearing, with punishment fixed at imprisonment for life or for some period over ten years (Sec. 39-2408, T.C.A.) or (3) whether this Court may properly impose a life sentence or a sentence for a term of years without remanding the case and without the consent of the state or the defendant.

This is a case of first impression in this state in that no reported decision of this Court provides a positive and direct answer. It is true that we have a line of seemingly analogous cases, but, upon analysis, the distinction is unmistakable.

The instant cases are not cases wherein the Court has concluded that the convicting evidence is sufficient only to sustain a lesser included offense, as in Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900 and in a long line of cases flowing therefrom. Nor are they cases wherein the error committed only affected the sentence and not guilt or innocence as in Farris v. State, 535 S.W.2d 608 (Tenn.1976).

In each case the defendant was guilty of the commission of a brutal and heinous murder, with no mitigating circumstances. Each had a fair trial.

There being no direct precedent to guide us in our conclusion, our decision must be the product of a reasoned, rational and realistic approach, within the framework of controlling principles of constitutional and statutory law.

II.

It is incontestably true that a conviction of first degree murder carries with it a conviction of all lesser included offenses, ranging all the way down to simple assault. As an inevitable corollary, such a conviction entails punishment ranging from death by electrocution, under the law then in effect, all the way down to a monetary penalty or confinement in the county jail.

The defendant, in such a case, has had his full constitutional right to trial by jury, and, in legal effect, has been found guilty of all offenses and subject to all sentences.

In the case of these defendants each jury had all these options. True, if they found guilt of first degree murder they could only punish by electrocution, but they were not compelled to make such a finding. They could have found either defendant guilty of murder in the second degree and fixed punishment at life or at ten years or more. And, again, such finding and punishment are necessarily included in the finding of murder in the first degree and death by electrocution.

By quirk of fate, these defendants have been convicted under an unconstitutional statute and we must nullify the sentence of death by electrocution; however, this leaves intact the conviction of second degree murder. Since the jury verdict validated any and all lesser sentences, this reduction in degree would carry with it a reduction to the next highest penalty, life imprisonment.

We are commanded by statute (Sec. 40-3409, T.C.A.) in all criminal cases to

render such judgment on the record as the law demands. (Emphasis supplied).

In my view, the law demands that these convicted murderers be dealt with in a manner commensurate with the gravity of their offenses. Neither the dictates of the law nor the commands of conscience require that we give them a second opportunity to plead their causes to a jury.

Discussing the alternatives available to the Court in the resentencing of death penalty cases, Justice McCanless, writing for the Court in Bowen v. State, 488 S.W.2d 373 (Tenn.1972), stated that

it is conceivably within the power of this Court to reduce the death penalty to ninety-nine years, where a defendant is clearly and beyond a reasonable doubt guilty of a first degree murder which justifies the death penalty, which would be applied except for the unconstitutionality of the death part of the sentence. 488 S.W.2d at 377.

While, admittedly, the language quoted from Bowen, supra, was dictum in that ease, it is uniquely appropriate in the present situation, and, in my view, is a correct statement of the law.

III.

There is a practical aspect to this matter. A sentencing hearing will require the same precise proof and trial proceedings as the original trial, plus evidence in mitigation and extenuation that was not admissible in a unitary trial where the jury was called upon to find guilt or innocence and fix punishment. Numerous first degree murder cases now pend determination in the appellate courts. To remand all of them for sentencing hearings would be an undue strain upon an already over-burdened criminal justice system, to say nothing of the tremendous cost involved.

Thirty-six (36) persons convicted of first degree murder and sentenced to death by electrocution are now on “death row” in our state penitentiary. An unknown number are in county jails throughout the state. A conservative estimate of the cost per day of a jury trial in our criminal courts would be approximately $1,000.00. The cost to the state of these sentencing hearings will be staggering.

I fully realize that justice may not be rationed and that normally the cost factor is not a relevant consideration; however, in cases such as these where full, fair and constitutional hearings have already decided all issues, it would be a complete waste of public funds to conduct re-trials.

Justice suffers when justice is delayed. The surest solution to the high incidence of crime in America, in my view, is sure, swift and certain punishment. Nothing degrades our criminal justice system more and creates more disrespect for the courts and its processes than the lingering delay in the disposition of criminal cases. I am unwilling to contribute to that delay.

IV.

There is yet another solution.

The Governor has the constitutional and statutory power to commute a punishment of death to imprisonment for life in the penitentiary. Sec. 40-3506, T.C.A.; Bowen v. State, 488 S.W.2d 373 (Tenn.1972), and his commutation of sentence is a substitution of a lesser for a greater punishment.

Further Section 40-3506, T.C.A. provides:

40-3506. Commutation on certificate of Supreme Court. — The governor may, likewise, commute the punishment from death to imprisonment for life, upon the certificate of the Supreme Court, entered on the minutes of the court, that in their opinion, there were extenuating circumstances attending the case, and that the punishment ought to be commuted.

In view of the unique developments surrounding these cases in particular and the death penalty in Tennessee in general, this Court could certify to the Governor the existence of extenuating circumstances. Admittedly this is a liberal — and perhaps a strained — interpretation of the legislative intent, but I feel it justified under the unique circumstances of this case.

Moreover, this statute is not binding upon this Court and in no sense entrenches upon the Court’s power, duty or obligation to convey to the Governor its views in appropriate cases. We, therefore, are not limited to the certificate as set forth in the statute, but, independent of the statute, in a proper case, may make our determination that executive commutation is appropriate, and communicate this determination to the Governor.

Therefore, pursuant to, and independent of the statute, by my signature hereon, I do hereby certify to His Excellency, The Honorable Ray Blanton, Governor of the State of Tennessee, that in my opinion, there are extenuating circumstances in these cases, and that the punishments ought to be commuted to life imprisonment. This certification should be deemed and treated as having been made in all cases wherein the same constitutional problems have arisen or may arise.

In making this certification, I am not unmindful of the doctrine of separation of powers. This wholesome doctrine, however, does not preclude cooperation, coordination and communication among the three coordinate branches of the state government on matters of vital public concern.

In summary, I would reduce these sentences to life imprisonment, thereby “rendering) such judgment as the law demands.” In the alternative, I would uphold the convictions, certify to the Governor the existence of extenuating circumstances, wait a reasonable length of time for the Governor’s official response, and should he fail to act, would reduce the sentences in the manner and to the extent aforesaid.

OPINION ON PETITION TO REHEAR

HARBISON, Justice.

Seven days after the release of the opinions of this Court in the above cases, the Governor of the State commuted the death sentences of petitioner Collins and respondent Morgan to life imprisonment, and this action was duly called to the attention of the Court by a timely petition for rehearing.

The State contends that the order of commutation substitutes ab initio a judgment of life imprisonment in the cases at bar, rendering unnecessary and inappropriate remands for resentencing. It relies primarily upon Bowen v. State, 488 S.W.2d 373 (Tenn.1972); Hodges v. State, 491 S.W.2d 624 (Tenn.Cr.App.1972); and Rose v. Hodges, 423 U.S. 19, 96 S.Ct. 175, 46 L.Ed.2d 162 (1975).

In Bowen, the order of commutation was issued following the decision by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and prior to release of the opinion of the Tennessee Supreme Court.

We do not consider the fact that our opinion was released on January 24, 1977, prior to the order of commutation, materially distinguishes these eases from Bowen. The State’s petition to rehear is properly before us in compliance with Rule 32 and presents as an issue the validity and effect of the executive action in commuting punishment from death to life imprisonment. The purpose of a petition to rehear is to request the Court to modify or set aside its opinion. It is fundamental that no final judgment can be entered on an opinion of the Court until the time expires for the filing of a petition to rehear or until disposition of such a petition which was timely filed. Accordingly no final judgment had been entered on our opinion of January 24, 1977, and we had not finally vacated the death sentence at the time of the Governor’s action.

We conclude that the validity of the Governor’s commutations of the death sentences imposed upon Collins and Morgan by the verdict and judgment of the respective trial courts is properly before us for decision, in a posture indistinguishable in principle from the issue presented in the Bowen case.

In Bowen, Mr. Justice McCanless, writing for the Court, discussed the following principles and reached the conclusion that the commutation was constitutionally permissible and lawfully imposed: (1) the Governor, in exercising the constitutional power to grant reprieves and pardons, which includes commutation, can no more be controlled by courts than by the legislature; (2) while a pardon is not complete without an acceptance, consent of a defendant is not necessary to sustain the validity of a commutation; (3) a commutation of a sentence is a substitution of a less for a greater punishment, and after commutation, the sentence has the same legal effect as though it had originally been pronounced for the commuted term.

We concur in these conclusions.

The commutation was exercised within the constitutional power of the executive, and we cannot refuse to recognize its validity. Life imprisonment is a less severe penalty than death, and an accused has no basis for complaint.

In a criminal case it is the right of the jury to determine the law and the facts. In these cases each jury was instructed as to first degree murder, second degree murder, and all lesser included offenses. The two juries had the opportunity and authority to impose a lesser sentence but declined to do so. Since the defendants received the maximum penalty of death at the hands of juries, there is nothing in our statutory or constitutional law or the decisions of -this Court requiring that they be given a second jury trial as to punishment under the circumstances presented here.

Other questions are raised in the petition for rehearing which were not involved in these cases and which would, in our opinion, be inappropriate for us to consider at this time.

The result is that the judgments of the respective trial courts are affirmed, as commuted to life imprisonment.

FONES, J., concurs.

HENRY, J., files concurring opinion.

COOPER, C. J., dissents.

BROCK, J., files dissenting opinion.

HENRY, Justice,

concurring.

I concur in the opinion prepared for the Court by Mr. Justice Harbison. I particularly applaud the following language:

In these cases each jury was instructed as to first degree murder, second degree murder, and all lesser included offenses. The two juries had the opportunity and authority to impose a lesser sentence but declined to do so. Since the defendants received the maximum penalty of death at the hands of juries, there is nothing in our statutory or constitutional law or the decisions of this Court requiring that they be given a second jury trial as to punishment under the circumstances presented here.

This is precisely what I pointed out in my dissent from the first opinion of the Court in this case.

Specifically, I reasoned:

It is incontestably true that a conviction of first degree murder carries with it a conviction of all lesser included offenses, ranging all the way down to simple assault. As an inevitable corollary, such a conviction entails punishment ranging from death by electrocution, under the law then in effect, all the way down to a monetary penalty or confinement in the county jail.
The defendant, in such a case, has had his full constitutional right to trial by jury, and, in legal effect, has been found guilty of all offenses and subject to all sentences.
In the case of these defendants each jury had all these options. True, if they found guilt of first degree murder they could only punish by electrocution, but they were not compelled to make such a finding. They could have found either defendant guilty of murder in the second degree and fixed punishment at life or at ten years or more. And, again, such finding and punishment are necessarily included in the finding of murder in the first degree and death by electrocution.

At the time I prepared my Separate Opinion, I could find no precedent, and, finding none had no choice but to proceed upon the basis of what I considered to be irrefutable logic. Fortunately, with the passage of time has come precedent from other jurisdictions.

Some three weeks after the main opinion and the dissent were filed in the instant case the Supreme Court of Nevada released its opinion in Smith v. State, 93 Nev. Advance Opinion 35, 560 P.2d 158 (Feb. 17, 1977). The Nevada mandatory death penalty is incorporated in NRS 200.030, which defines “capital murder” and provides that it “shall be punished by death.” In Smith the Nevada Court, pursuant to the mandate of Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), declared the Nevada death penalty to be unconstitutional, and imposed “life imprisonment without possibility of parole.”

The Nevada Court, in Anderson v. State, 528 P.2d 1023 (Nev.1974), instructs us that after the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), “life imprisonment without the possibility of parole became the maximum sentence that could be imposed in Nevada against a person convicted of first degree murder.” Therefore, the Court held:

The district judge was authorized to re-sentence the appellant and invoke the penalty of life without possibility of parole, it being the only lawful penalty which could have been entered upon the conviction and finding of the jury that Anderson should receive the maximum sentence permitted by law. (Emphasis supplied). 528 P.2d at 1025.

An even more significant case is Boyd v. Commonwealth of Kentucky, 550 S.W.2d 507 (opinion filed March 11, 1977), wherein the Kentucky Supreme Court held that state’s mandatory death penalty to be unconstitutional, and reduced the punishment to life imprisonment. Pertinent to the case at bar is the following:

The jury found Boyd guilty of the intentional multiple murders of Gilliam and Howard. In order for the jury to reach this result it was necessary that it find Boyd guilty of the intentional murders of both Gilliam and Howard under aggravated conditions and reject all possibilities of intentional simple murder or manslaughter convictions.
The jury chose to convict Boyd of the most serious and aggravated offense and invoke the ultimate punishment of death. It deliberately rejected the opportunity to extend mercy by declining to convict Boyd of simple intentional murder or manslaughter in the first degree. It was clearly the intention of the jury to impose the maximum punishment legally permissible. The maximum punishment constitutionally permissible under Kentucky’s 1974 penal code is life imprisonment. Unless the verdict of the jury is to be completely frustrated, it is this punishment which must be imposed upon Boyd for each of the two murders of which he stands convicted.

Thus, the Kentucky Court, under statutory provisions having precisely the same effect as Sec. 39-2405, 2406, T.C.A., followed the identical procedure heretofore suggested in my dissent and now adopted by the majority opinion.

It would be unthinkable for this Court to hold that the Governor of Tennessee does not have the power to issue a commutation in these cases. I, therefore, agree with the majority opinion that he acted “within the constitutional power of the executive, and we cannot refuse to recognize its validity.” However, it is not necessary that we reach this issue. All that is necessary is that we recede from the views expressed in the original opinion and reduce these sentences to life imprisonment.

BROCK, Justice,

dissenting.

I dissent. On January 24, 1977, this Court announced its opinion and judgment in these cases, declaring unconstitutional Section 3 of Chapter 462 of the Public Acts of 1974, which mandated punishment by death for the crime of murder in the first degree, vacating the death sentences of defendants Collins and Morgan and remanding their cases to the trial courts for new trials limited to the ascertainment of proper punishment by a jury and the imposition of new sentences by the trial judge, such sentences to be from 20 years to life imprisonment, as provided by the appropriate statutes.

Thereafter, the State filed a petition to rehear asserting that after this Court had vacated the death sentences in these causes, the Governor “commuted” the sentences from death by electrocution to imprisonment for life. Now, in response to the petition to rehear, the majority of the Court is reversing our original determination that defendants Collins and Morgan were entitled to have their punishment assessed by a jury and new sentences imposed by the trial courts and, instead, is affirming the respective judgments of the trial courts “as commuted to life imprisonment.” In my opinion, this reversal deprives the defendants of valuable rights to have their punishment determined by the courts.

I

I deem it appropriate and advisable to’ spell out the reasons underlying our original determination that this Court did not have lawful authority following the vacation of the death sentences imposed upon the defendants to determine appropriate punishment for the defendants, but, instead, was required by the law of this State to remand their cases to the trial court for a determination of appropriate punishment and new sentences by the jury and trial judge.

There is precedent in Tennessee for adjustment of a sentence at the appellate level under certain limited circumstances. In Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900 (1944), a conviction for grand larceny was set aside for failure of the State to prove the value of the property taken. It was, nevertheless, clear from the verdict that the jury believed the State’s proof of the elements of petit larceny. Rather than ordering a new trial, the Court imposed the minimum sentence for petit larceny and gave the State the option of accepting the reduced sentence or retrying the defendant to seek a higher penalty. See also Forsha v. State, 183 Tenn. 604, 194 S.W.2d 463 (1946).

The case of Beaver v. State, 475 S.W.2d 557 (Tenn.Cr.App.1971) posed a different, but related, problem. Veniremen who expressed conscientious objections to capital punishment were excluded from the jury in violation of the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The Court of Criminal Appeals held that the error did not vitiate the verdict of guilt but affected only the validity of the death sentence imposed. Accordingly, the sentence was reduced to the minimum punishment of confinement in the penitentiary for twenty years and one day, subject to acceptance by the State.

There is, however, no Tennessee authority for reducing a sentence to the maximum penalty authorized by statute. To the contrary, the rule, without exception, has been that if the punishment fixed by the verdict is either below the minimum or above the maximum penalty prescribed by statute, there is no remedy but to reverse and remand for a new trial, McDougal v. State, 64 Tenn. 660 (1875); Cowan v. State, 117 Tenn. 247, 96 S.W. 973 (1906); Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768 (1967); Corlew v. State, supra ; on the issue of guilt as well as punishment, Gohlston v. State, 143 Tenn. 126, 223 S.W. 839 (1920). This is true even in misdemeanor eases, if the defendant has demanded that the jury fix the punishment. Van Pelt v. State, 193 Tenn. 436, 246 S.W.2d 87 (1952); Aldridge v. State, 4 Tenn.Cr.App. 254, 470 S.W.2d 42 (1971).

Since the death penalty statutes of 1973 and 1974 have been held invalid, § 10772 of the Code of 1932, without its capital sentencing provision, is “revived.” State v. Dixon, 530 S.W.2d 73 (Tenn.1975). Therefore, murder in the first degree may be punished by any term in the penitentiary greater than twenty years. In Hunter v. State, 496 S.W.2d 900 (Tenn.1972), this Court held that precisely because a variety of punishments is available, this Court may not itself correct the sentence but must remand for sentencing by a jury. Although the defendant does not have a constitutional right to have the jury determine punishment, he does have a statutory right to that effect. Gohlston v. State, supra. So does the State. T.C.A. § 39-2406; Corlew v. State, supra; State v. Odom, 200 Tenn. 231, 292 S.W.2d 23 (1956); T.C.A. § 40-2707; West v. State, 140 Tenn. 358, 204 S.W. 994 (1918), dealing with former law. In Gohl-ston, the Court said that the “Act clearly vests the power to fix the punishment in such cases in the jury” which has the “exclusive power and authority to fix the punishment of the defendants in cases where they have been convicted of murder in the first degree, and [jury sentencing] is mandatory”. 143 Tenn. at 132, 223 S.W. at 840.

In the Corlew case, supra, the Court relied on the obvious proposition that the defendant cannot complain that he is deprived of any rights when he has been found guilty by a jury and receives the least severe sentence a jury could have imposed, observing cautiously that “the rule should never be applied unless it is plain, beyond question, that the action taken is for the benefit of the defendant . . . .” 180 S.W.2d at 902. In the cases at bar, it is sheer speculation to conclude that the jury which imposed the death penalty would have chosen life imprisonment had the death penalty been unavailable at the time of trial.

It appears to me that the premise of such a speculation is not correct. The law by which these cases were tried and the jurors instructed did not give the jurors any power to' withhold the death penalty except by violating their oaths and refusing to return a verdict of first degree murder even though they believed the State’s proof. It is for that reason that it is unconstitutional under the decision of the U.S. Supreme Court in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).

It is true that some other courts of last resort, having found their particular death penalty statutes to be unconstitutional, have imposed sentences of life imprisonment at the appellate level. Swain v. State, 290 Ala. 123, 274 So.2d 305 (1973); Anderson v. State, 528 P.2d 1023 (Nev. 1974). But, they were administering statutes quite different from ours. That would appear to be a proper action if life imprisonment were the only alternative to capital punishment, as is true in Nevada, where the Anderson case arose. N.R.S. 200.030.

The Swain case was decided under a statute similar to the “revived” Tennessee statute. The Alabama court could not remand for a new trial on the issue of punishment because there was no statutory authority for bifurcated trials, and it was feared that the administrative problems for the trial court would prove unmanageable. This has not been regarded as a problem in Tennessee. See Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738 (1956); Hunter v. State, 496 S.W.2d 900 (Tenn.1972). But the crucial distinction between the cases at bar and Swain is that there the jury had a choice and selected the penalty of death, whereas, in these cases the jury had no option. Since it elected the harshest punishment available, the court in Swain felt warranted in selecting the next most severe valid penalty after the death penalty was declared unconstitutional. In the cases at bar, the jury simply found the defendant guilty of first degree murder upon the evidence; the punishment followed automatically.

Bowen v. State, 488 S.W.2d 373 (Tenn.1972) is relied upon for its dictum suggesting that this Court has power to follow the Alabama precedent. But, Bowen is bad dictum because the same consideration that distinguishes Swain distinguishes Bowen, namely, that the jury selected the punishment as it was required to do under the law in effect prior to 1973.

Considering the foregoing authorities, I was convinced when we pronounced our original decision that these cases must be remanded for resentencing hearings so that the jury and trial judge may fix a lawful punishment “at imprisonment in the penitentiary for life, or for some period over twenty years.” T.C.A., § 39-2406. I adhere to that conclusion.

II

The reason given by the majority for granting the petition to rehear and reversing the original judgment of this Court is that the Governor has since intervened and “commuted” the punishment of the defendants from death by electrocution to life imprisonment. The majority considers these “commutations” to be valid exercises of the executive power and, thus, effective to fix the punishment of the defendants at life imprisonment. I cannot agree. In my view, the Governor’s actions were premature and unauthorized by law, and constitute an unwarranted interference with the judicial process.

The power of the Governor is granted by Art. Ill, Sec. 6, Constitution of Tennessee, as follows:

“He shall have power to grant reprieves and pardons, after conviction, except in cases of impeachment.” ⅛

No power to grant commutations of sentences is expressly mentioned, but it has long been recognized that such power is to be implied from the grant of the greater power ⅛ pardon. See 67 C.J.S. Pardons § 15(2), p. 584.

A pardon is an executive act of grace which exempts a person from the punishment the law inflicts for a crime he has committed; a commutation of sentence is the reduction of a lawful punishment to which a person has been condemned to a less severe lawful punishment. People v. Frost, 133 App.Div. 179, 117 N.Y.S. 524 (1909).

The difficulty with the “commutations” in these cases, in my view, is that they were prematurely issued and are given an effect not intended by the drafters of our Constitution. It is my firm opinion that no executive act of clemency, whether it be a pardon, reprieve or commutation, can be given the effect of depriving the defendant of a vested legal right; in these cases, the right to have a jury and trial judge determine the term of imprisonment which, possibly, could be as short as twenty years. Nevertheless, such is the effect of these “commutations” as approved by the majority. On January 27,1977, the defendants had the right to go before a jury and argue that their punishment be fixed at no more than twenty years imprisonment; on January 28, 1977, they were deprived of that right by the Governor and by him sentenced to imprisonment for life. In my view, such a result is not authorized by Art. Ill, Sec. 6, Constitution of Tennessee, or by any other law. Moreover, such action is, in my view, in plain violation of Art. I, Sec. 8, Constitution of Tennessee, which mandates that:

“No man shall be taken or imprisoned but by the judgment of his peers or the law of the land.”

This provision of our fundamental law guarantees that both guilt and punishment must be determined by the courts, not the Governor. The Governor has no power to impose sentence; he has power only to diminish the punishment provided by a sentence imposed by the courts.

The power to commute a sentence can never properly be exercised until after the judgment of the courts has become final; until that time there is no sentence to be commuted. Any “commutation” before that time necessarily is an impermissible interference with the judicial process.

A pardon may be granted at any time after conviction and, even when granted before the judgment of the courts is final, does not unlawfully interfere with the judicial process. This is so because the pardon lawfully obliterates both guilt and punishment, without depriving the defendant of any vested right, but a commutation is different.

The majority cites as authority for its action Rose v. Hodges, 423 U.S. 19, 96 S.Ct. 175, 46 L.Ed.2d 162 (1975); Bowen v. State, supra; and Hodges v. State, 491 S.W.2d 624 (Tenn.Cr.App.1972). In my opinion, Rose is not in point, but I agree that Bowen and Hodges are apposite; so are Whan v. State, 485 S.W.2d 275 (Tex.Cr.App.1972) and Stanley v. State, 490 S.W.2d 828 (Tex.Cr.App.1972). See also State v. Hill, 279 N.C. 371, 183 S.E.2d 97 (1971).

Although apposite, I cannot follow the decisions in Bowen, Whan and Stanley because they sanction what I consider to be a perversion of the power to commute a sentence. What kind of “commutation” is it that fixes the punishment at the maximum permitted by law, that is fervently advocated by the prosecution and just as vigorously opposed by the defendant, that interferes with the judicial process before it is finished and deprives a defendant of his legal right to go before a jury and seek a sentence less than that fixed in the “commutation”? Surely, the power to “grant reprieves and pardons, after conviction, . ” does not contemplate such “clemency.” I cannot follow precedent which would lead me to deprive a defendant of his statutory and constitutional rights.

It is true that the situation in Hodges v. State, supra, was virtually identical to that in the cases at bar insofar as the question of “commutation” is concerned. Subsequent to the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Court of Criminal Appeals held that the death penalty statute was unconstitutional and remanded the case to the trial court for determination of a lawful punishment. Upon a petition to rehear, the court took notice of the Governor’s subsequent “commutation” of the prisoner’s sentence from death to 99 years’ imprisonment. Noting that this Court had upheld the validity of a “similar” commutation in Bowen v. State, supra, and had “decreed the exercise of the power of commutation by the Governor to be valid and a proper exercise of executive authority”, 491 S.W.2d at 629, the Court of Criminal Appeals modified its original judgment “in compliance with the executive order of commutation as entered.”

Subsequent to the Court of Criminal Appeals’ decision in Hodges, the prisoners affected by the court’s decision petitioned for habeas corpus in a federal district court asserting that their federal constitutional rights were violated by the Governor’s commutation of their death sentences to 99 years’ imprisonment. After dismissal by the district court, the Court of Appeals for the Sixth Circuit held that since the death sentences were vacated at the time of the Governor’s commutation order, “There were . no viable death sentences to commute” and, thus, that the rights of the prisoners under the U.S. Constitution were violated by the “commutations.” Rose v. Hodges, supra, 96 S.Ct. at 176. The Supreme Court held only that the Governor’s commutation whether or not valid under state law, did not violate the U. S. Constitution:

“Whether or not the sentence imposed upon respondents was subject to commutation by the governor, and the extent of his authority under the circumstances of this case, are questions of Tennessee law which were resolved in favor of sustaining the action of the governor by the Tennessee Court of Criminal Appeals in Hodges v. State, supra. It was not the province of a federal habeas court to reexamine these questions. * * * If Tennessee chooses to allow the governor to reduce a death penalty to a term of years without resort to further judicial proceedings, the United States Constitution affords no impediment to that choice.” Rose v. Hodges, supra, 96 S.Ct. at 177.

The limited holding of the majority in Rose was substantially weakened by the dissenting opinion of Justice Brennan (with whom Justice Marshall joined) who stated:

“I find troublesome the question whether (since there existed no viable death sentences to commute) the Governor’s action should be treated as imposing the 99-year sentences without affording respondents constitutionally secured safeguards required when sentences are imposed. If the Governor had not acted, resentencing would have been by a jury at a proceeding highlighted by the usual safeguards, none of which applied to the Governor’s actions. The question is plainly not insubstantial; in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), we held that constitutional safeguards (there the right to counsel) applied to the sentencing stage. Was the commutation in this case actually the sentencing stage since no death sentence existed to commute when the Governor acted? Also, the due process dimensions of the right to present evidence relevant to sentencing was left open in McGautha v. California, 402 U.S. 183, 218-20, 91 S.Ct. 1454, 1473, 28 L.Ed.2d 711 (1971). If respondents were “sentenced” by the Governor, were they denied due process when not afforded that opportunity, even assuming that the Federal Constitution permits States to adopt executive in preference to judicial sentencing? I agree that the Constitution allows Tennessee to empower the Governor to reduce a death penalty to a term of years without resort to judicial proceedings. But the Court’s disposition assumes, without any in-depth analysis', that the instant case involves such “commutations” despite the fact that respondents’ death sentences were voided and were therefore non-existent when the Governor acted.” 96 S.Ct. at 179.

I note that on this issue my views are shared not only by the eminent judges of the U.S. Court of Appeals of the Sixth Circuit, but also by Presiding Justice Onion of the Texas Court of Criminal Appeals, who filed scholarly dissenting opinions in Whan and Stanley, and by Justice Lake of the Supreme Court of North Carolina, who dissented in State v. Hill, supra. See also Mears v. Nevada, 367 F.Supp. 84, 85 (D.C. 1973). (“Commutation is not ... a tool for resentencing prisoners whose sentences have been vacated.”) In Stanley, Presiding Justice Onion, in dissent, said:

“While the cases here involved were pending before this court, the Governor acted to commute the death sentences no longer in existence to life sentences in each case. * * * In the instant cases there were no acts of clemency involved in the ‘commutation’ since there was no substitution of a lesser penalty for a greater valid punishment. The ‘commutation’ merely imposed the highest possible penalty to which the appellants are now subject. The cases which hold that commutation may be accomplished without consent involved a higher valid penalty and further the cases do not consider the requirements of due process.” 490 S.W.2d at 831, 833.

The “commutations” in these cases did not save the defendants from the electric chair, the defendants had already been spared that fate by the judgment of this Court. Therefore, the apparent intent, and certainly the real effect, of these “commutations” was to insure that the defendants would not have their punishment fixed by a jury, possibly at twenty years imprisonment, but would receive the maximum punishment allowed by law. I agree that the defendants are deserving of that punishment, but neither this Court nor the Governor has the authority to impose that punishment; under our Constitution and laws, only the jury and trial judge are authorized to do so.

Therefore, I would overrule the petition to rehear and adhere to our original judgment. I am authorized to state that Chief Justice COOPER joins in this dissenting opinion.

COOPER, C. J., concurs in this opinion.

      . In the case of Hunter v. State, 496 S.W.2d 900, 904 (Tenn.1972), this Court said that the effect of Furman “is to render void the penalty of death as it exists under the statutes of Tennessee.”

      . We are not concerned, in this opinion, with the duty of the trial judge in charging lesser included offenses.

      . It must be borne in mind that the recent decisions of the Supreme Court of the United States did not ipso facto operate to void these sentences. They stand until this Court, applying the principles established by the Supreme Court of the United States, invalidates them. After the commutation these sentences stand on the same footing as if they had been pronounced in the original trial for the commuted term. 488 S.W.2d at 375-76. After commutation the original judgments stand as valid and no change is necessary. This follows from the fact that the commutation does not affect the judgment, but merely mitigates the punishment. Therefore a commutation merely renders so much of the original judgment as adjudges the death penalty a nullity, leaving the remainder intact. 488 S.W.2d at 378. Review in this Court would be limited to guilt or innocence of first degree murder.

      . Life imprisonment is the second most severe form of punishment under Tennessee Law.

      . Tennessee Constitution, Article I, § 19; Scott v. State, 207 Tenn. 151, 338 S.W.2d 581 (1960); Dykes v. State, 201 Tenn. 65, 296 S.W.2d 861 (1956).

      . Sec. 507.020, KRS defines murder and makes it a capital offense in cases involving multiple murders (as was the case in Boyd). Sec. 532.-030 KRS provides for a mandatory death penalty.

      . T.C.A., §§ 40-3501 — 40-3508, which purport to provide for commutation in certain instances not applicable to these cases.


source: Caselaw Access Project

author: COOPER, Chief Justice.

license: Public Domain

text:
    CITY OF MEMPHIS ALCOHOL COMMISSION, Harlon J. Fields, and Fields, Inc. d/b/a The Smoke House, Appellants, v. RANDALL MEMORIAL FREE WILL BAPTIST CHURCH, INC., Appellee.
    Supreme Court of Tennessee.
    May 9, 1977.

      Roy Keathley, Charles T. Tuggle, Jr., Heiskell, Donelson, Adams, Williams & Kirsch, Memphis, for appellants.
    Joseph T. Kirkland, Jr., Memphis, for ap-pellee.
   OPINION

COOPER, Chief Justice.

Harlon J. Fields and Fields, Incorporated, doing business as The Smoke House, filed a petition with the City of Memphis Alcohol Commission for a permit to sell beer for on-premises consumption. The commission, after a hearing, granted the permit. Randall Memorial Free Will Baptist Church, Inc., a protestant, filed a petition in the circuit court seeking to deny a beer permit to The Smoke House. On hearing evidence by oral testimony, and reviewing evidence heard by the Alcohol Commission, the trial judge concluded the sale of beer by The Smoke House would interfere with public health, safety, and morals, and denied the beer permit. On appeal to this court, appellants insist the evidence preponderates against the trial judge’s finding, and that the trial judge was in error in concluding that the fact that beer is sold at a restaurant directly across the street from the church property and The Smoke House was not a relevant factor.

As to the latter insistence, we find that the trial judge did not hold that the sale of beer at a restaurant across from church property was not relevant to a decision in this case. He stated, and we think correctly, that it was not the “determinative factor; the determinative issue is simply whether or not the sale of beer at The Smoke House interferes with public health, safety, and morals because of interference with Randall Memorial Free Will Baptist Church and Randall Christian Academy.”

The ordinance controlling the issuance of a permit to sell beer in the City of Memphis is not set out in its entirety in the narrative bill of exceptions. However, we understand from the briefs of the parties and argument before this court that there is no specific prohibition against locating an outlet for the sale of beer near a school or church, though the City had the right to so limit the location of outlets for the sale of beer. See T.C.A. § 57-205 and Howard v. Willocks, 525 S.W.2d 132 (Tenn.1975). The part of Section 5-86 of the Code of Ordinances of the City-of Memphis, which is set forth in the bill of exceptions, provides the general limitation that:

“No license shall be issued to sell any beverage coming within the provisions of this article:
******
(3) Where such sale will cause congestion of traffic or interference with schools, churches or other places of public gathering, or otherwie [otherwise] interfere with public health, safety and morals, and the judgment of the alcohol commission on such matters shall be final, except as same is subject to review at law.”

The issuance or denial of a beer permit by the Memphis Alcohol Commission is reviewable by circuit judge or chancellor under the statutory writ of certiorari with a trial de novo. See Richards v. Lewisburg Alcoholic Beverage Commission, 543 S.W.2d 852 (Tenn.1977); T.C.A. § 57-209. See also Cantrell v. DeKalb Co. Beer Board, 213 Tenn. 568, 376 S.W.2d 480 (1964), wherein this court held “[a] ‘trial de novo’ as used in § 57-209 means the cause is tried as if it originated in the circuit or chancery court,” and

“[t]he trial judge is required to make an independent judgment on the merits, which, . . . results in the trial judge substituting his judgment for that of the beer board; . . ..”

On an appeal to this court, the action of the trial judge in granting or denying an application for a beer permit is presumed to be correct, and the judgment of the trial judge will not be reversed unless the evidence preponderates against the judgment. Coffman v. Hammer, 548 S.W.2d 310 (Tenn.1977).

In this case the trial judge’s opinion, contained a comprehensive finding of facts. The material facts set forth in the memorandum, and which are in accord with the evidence, are as follows:

“1. That The Smoke House is located immediately adjacent to and abuts the property of Randall Memorial Free Will Baptist Church; The Smoke House being located at 2860 S. Perkins and Randall Memorial Free Will Baptist Church being located at 2898 S. Perkings.
“2. That Randall Memorial Free Will Baptist Church conducts services and activities during the day and evenings throughout the week, including but not limited to services on Wednesday and Sunday; that children of tender years are present and will be present at these services and activities.
“3. That Randall Memorial Free Will Baptist Church, Inc., conducts a school in their facilities known as Randall Christian Academy; that said school is for children from kindergarten through grade twelve.
“4. That it is necessary for young children, in going to and from school, to pass in close proximity to The Smoke House.
“5. That it is necessary for young children, in going to and from church activities, to pass in close proximity to The Smoke House.
sfc * * ⅜ * ⅜
“7. That Randall Memorial Free Will Baptist Church has been located at 2898 S. Perkins since approximately 1968 and has no present intention to relocate.
* ‡ * ⅜ ⅜ *
“10. That no factual testimony was offered as to the increase of traffic due to the proposed sale of beer at The Smoke House; witnesses for the petitioner were of the opinion that traffic would increase due to the sale of beer; Harlon J. Fields was of the opinion that he would be at a disadvantage because a restaurant across Perkins [which is at least a six lane street] presently sells beer and that The Smoke House needed to sell beer to be competitive to Danvers, the restaurant across Perkins.
“11. That Harlon J. Fields has never had a beer permit revoked and is a man with an excellent reputation in the restaurant business.
“12. That Harlon J. Fields proposes to build a fence between The Smoke House and Randall Memorial Free Will Baptist Church and Randall Christian Academy.”

From these facts, the trial judge concluded that:

“The sale of beer at The Smoke House would interfere with public health, safety and morals in that the sale of beer at The Smoke House would interfere with Randall Memorial Free Will Baptist Church and Randall Christian Academy in that the particular location is one where it is necessary for young children, in going to and from school and church, to pass in close proximity to the premises where beer would be sold (Ewin v. Richardson, 217 Tennessee 534, 399 S.W.2d 218).” (Emphasis supplied.)

In these facts, we see no basis to justify the conclusion reached by the trial judge, or the concomitant denial of a beer permit to appellant. It is true that in ordering a beer permit be issued in the Ewin case, the court gave examples of factual situations where the sale of beer could constitute interference with public health, safety, and morals. One of the examples given was the sale of beer at a location “where it was necessary for young children, in going to and from school, to pass in close proximity thereto.” However, the court emphasized that the examples were “not a judgment on the facts used in the [examples],” thus leaving the determination of whether the sale of beer at a particular location would interfere with public health, safety, and morals to be made from facts developed on trial of each case. We approve of this action for we are not ready to deny a beer permit in every instance where children walk on the public sidewalk in close proximity to a proposed outlet for the sale of beer. We think it apparent that there can be a different impact upon public health, safety, and morals from the sale of beer at a tavern, where alcoholic beverages are the principal commodity sold, and the sale of beer at a family-style restaurant, where food is the principal commodity and beer is sold only to complement the food, and the sale of beer at the neighborhood grocery store where small children delight to go.

The evidence shows The Smoke House is a family-style restaurant, where food is the principal commodity sold and beer is sold as a complement to the food. Past business history of the appellants demonstrates that the operation of the restaurant, with concomitant sale of beer, will be in compliance with regulations prescribed for the operation of a business where beer is sold. Pictures in the record demonstrate that the building housing The Smoke House is located a considerable distance from the public sidewalk, and even further from the closest building of appellees. A fence is to be built separating The Smoke House property from the church property, so that the restaurant operation cannot be viewed by a person on the church property. Of course, there is no way that the view of the restaurant by a person on the sidewalk can be blocked, but we see no greater vice from this than we do from the view the children have of the restaurant across the street from the church property, where beer is sold.

From our review of the evidence, we find no basis to justify a conclusion that the sale of beer at The Smoke House would interfere with public health, safety, and morals, nor the action of the trial judge in denying appellants a permit to sell beer.

The judgment of the trial court is reversed. The cause is remanded to the Circuit Court of Shelby County for the entry of an order directing the City of Memphis Alcohol Commission to issue a permit to appellants permitting the sale of beer at The Smoke House. Costs will be paid by the appellee.

FONES, HENRY, BROCK and HARBI-SON, JJ., concur.


author: HENRY, Justice.

text:
    Raymond M. HERRING et ux., June Herring, Appellants, v. ESTATE of J. Harrison TOLLETT, Deceased, Appellee.
    Supreme Court of Tennessee.
    May 9, 1977.

      Walter L. Fuller, Jr., Oak Ridge, for appellants.
    Hoyt V. Swafford, Swafford, Looney & Looney, Crossville, for appellee.
   OPINION

HENRY, Justice.

This appeal relates to the proper procedure for filing, in the Probate Court, notice of the pendency of a circuit court tort action.

The estate of J. Harrison Tollett is in process of being administered in the County Court of Cumberland County. After the appointment of an administrator and within six months after the requisite publication of notice to creditors, the appellants filed their claim in the County Court for “injuries growing out of a vehicle accident” and “loss of services”. A copy of a complaint filed against the administrator in the Circuit Court at Crossville was appended to the claim.

The administrator filed exceptions upon the principal ground that it was a claim for unliquidated damages in a pending circuit court tort action.

The County Judge disallowed and dismissed the claim upon the ground that it “is one sounding in tort and the claimants cannot be deemed creditors until they obtain judgments”. Claimants have appealed to this Court and appropriate assignments of error have been made.

I.

Sec. 30-510, T.C.A., requires that claims, due or not due, be filed in duplicate with the clerk of the court where the estate is being administered, within six months from the date of the notice to creditors. It enumerates claims based upon written instruments, judgments or decrees, and open accounts. More importantly it does not list tort claims.

Sec. 30-511, T.C.A. provides:

Duplicate copies of the first pleading filed in original actions against a personal representative shall be filed with the clerk of the court where the administration originated, to be noted by him in the record of claims as are other claims filed.

Facially, this statute would seem to require that where an administrator is sued officially in a tort action, duplicate copies of the complaint shall be filed with the clerk.

The case of Collins v. Ruffner, 185 Tenn. 290, 206 S.W.2d 298 (1947), however, holds to the contrary. There a tort action was instituted in circuit court and the defendant administrator entered a plea in abatement asserting, inter alia, that the exclusive jurisdiction of claims against an estate is in the county court and that the circuit court was without jurisdiction to hear and determine the controversy. The trial judge sustained the plea and dismissed the suit.

Gn appeal this Court held (1) that a tort claimant is not a “creditor” until he obtains judgment; (2) that the statute did not contemplate cases sounding in tort, and (3) that there was no requirement that copies of the declaration (complaint) be filed in the county court.

McMahan v. Beach, 198 Tenn. 168, 278 S.W.2d 680 (1955) cites Collins and relying thereon holds that the six months exemption from suit given administrators, does not apply to tort actions.

In Darby v. Union Planters N. Bank, 222 Tenn. 417, 436 S.W.2d 439 (1968), this Court again followed Collins, and held that a tort claimant was not a creditor prior to judgment. Therefore, the Court held that the probate court could not entertain a malpractice claim.

Citing Collins, it is pointed out in Sec. 659, Caruthers History of a Lawsuit, 8th Ed., that “it is not necessary to file duplicate copies of the plaintiff’s declaration in the probate court”. Precisely the same conclusion is reached in Sec. 743(2) Phillips’ Prichard Law of Wills.

We think it clear that Sec. 30-511, T.C.A., requiring that duplicate copies of the first pleading be filed in the probate courts relates only to the claims contemplated in Sec. 30-510, T.C.A., and has no application to claims sounding in tort.

Better practice, however, demands that the court in which the estate is being administered be put on notice of the pend-ency of a tort action in another court. Filing a copy of the complaint is sufficient to accomplish this.

Whenever the probate court is put on notice of the pendency of a tort action in another court by the filing of a copy of the complaint, or by any other good and sufficient means, the probate court must hold in abeyance a final distribution of the assets and the final settlement of the estate, pending the outcome of a tort action.

It results that the action of the County Court of Cumberland County in treating this as a claim and dismissing it was erroneous. The Court should have held the matter in abeyance pending the outcome of the tort action and the certification to it of a final judgment.

Reversed and Remanded.

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


author: DANIEL, Justice. POPE, Justice,

text:
    Robert William FORD, Jr., et al., Petitioner, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. B-6135.
    Supreme Court of Texas.
    March 2, 1977.
    Rehearing Denied June 8, 1977.
    Morgan, Dudensing & Tullis, Paul F. Jensen, Houston, for petitioner.
    Vinson, Elkins, Searls, Connally & Smith, John T. Golden, Houston, for respondent.
   DANIEL, Justice.

This is a suit to recover under the uninsured motorist provisions of a Texas standard automobile policy issued by State Farm Mutual Automobile Insurance Company. The principal question is whether State Farm’s unconditional denial of liability constituted a waiver of its right to consent before its insured subsequently settled with another insurance carrier.

The trial court, hearing the case without a jury, rendered judgment for the insured. The Court of Civil Appeals reversed and rendered. 537 S.W.2d 138. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

On October 18, 1969, Mrs. Joan Elizabeth Ford was a passenger in an automobile driven by Mrs. Shirley Harvey when the Harvey automobile was in a collision with a vehicle driven by Jeffrey Whitten. The collision resulted in Joan Ford’s death and damages in excess of $20,000. Mrs. Ford was survived by her husband, Robert W. Ford, Jr., and their three children. Jeffrey Whitten, whose negligence caused the collision, was an uninsured motorist.

At the time of the collision, the Harvey automobile was covered by a policy of automobile liability insurance issued by Gulf Insurance Company, with a standard uninsured motorist clause coverage of bodily injury limits for one person in the amount of $10,000. At the same time, Ford also had an automobile liability policy with State Farm containing the same standard uninsured motorist coverage.

On July 21,1970, suit was filed by Robert W. Ford, Jr., individually and as guardian of his three minor children, against State Farm and Gulf Insurance for recovery under the uninsured motorist provisions of each policy, in the total sum of $20,000. Plaintiff plead the existence and coverage of both policies. Separate answers were filed for State Farm and Gulf by different members of the same law firm. Gulf had indicated a willingness to settle for the $10,000 limit of its policy. Before consummation, the parents of Mrs. Ford filed a conflicting claim, and Gulf interpleaded them in its answer of July 29, 1970.

On October 23, 1970, State Farm filed its original answer generally denying any liability. Thereafter, on April 16, 1971, plaintiff amended his petition to claim a total of $30,000 against the two insurance companies. On April 20, 1971, State Farm filed its first amended answer with pleas in bar “to Plaintiff’s action in its entirety.” One of these pleas alleged that plaintiff’s action was barred by the policy’s “OTHER INSURANCE” clause inasmuch as Mrs. Ford was riding in a car which was covered by the uninsured motorist provisions of a Gulf Insurance Company policy. It alleged that the Gulf policy was applicable and available to plaintiff, and that State Farm was in no event liable to pay anything under its policy.

In the meantime, on June 29, 1971, an interlocutory judgment was entered dismissing the interpleader suit against Mrs. Ford’s parents and in favor of plaintiff against Gulf for its policy limit in the amount of $10,000, without prejudice to plaintiff’s cause of action against the remaining defendant, State Farm. Contemporaneously, plaintiff and Gulf entered a release-trust agreement by which Gulf, and only Gulf, was released from claims growing out of the accident and authorizing Gulf, at its sole expense, to proceed in the name of plaintiff against the person or organization responsible for the operation of the uninsured automobile at the time of the accident.

The remaining cause as to State Farm was severed on July 26, 1971, and on November 9, 1972, State Farm filed its second amended answer in which it set up as an additional defense the allegation that plaintiff’s claim was barred because of the settlement with Gulf Insurance without the written consent of State Farm. It specifically plead an exclusionary clause in its policy relating to Part IV (the uninsured motorist provisions), which reads as follows:

“Exclusions. This policy does not apply under Part IV:
“(a) . . .
“(b) [T]o bodily injury to an insured with respect to which such insured, his legal representative or any person entitled to payment under this coverage shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor.”

It was stipulated that State Farm “had denied liability to the plaintiffs as evidenced by, among other things, the Original Answer . . . and had refused to pay any money damages prior to the entering of the interlocutory judgment made between Robert William Ford, Jr., and Gulf Insurance Company . . . .” It was also stipulated that prior to the settlement with Gulf, “Plaintiffs or their representatives made no request or demand” upon State Farm to consent to the settlement.

Robert W. Ford, Jr., died on November 19, 1973. His mother, Mrs. Margaret Ford, was substituted as plaintiff in the capacity as guardian of Ford’s three minor children. The trial court heard evidence and stipulations on October 14, 1974, received briefs, and kept the case under consideration until July 29, 1975. On that date it rendered judgment that plaintiff recover against State Farm the sum of $10,000 on behalf of the children.

There are no findings of fact or conclusions of law, but it appears from the State Farm’s motion for new trial that the trial court may have followed Stephens v. State Farm Mutual Automobile Ins. Co., 508 F.2d 1363 (5th Cir. 1975), which held that the consent clause was waived in that case by State Farm’s denial of liability under similar circumstances. Upon appeal of the present case by State Farm, plaintiff (as appellee) had a counterpoint stating that the trial court correctly ruled in favor of plaintiff because State Farm waived the consent provisions by denying all liability under its policy prior to plaintiff’s acceptance of Gulf’s policy limit payment. In reversing and rendering, the Court of Civil Appeals made no holding on or mention of the waiver counterpoint. We granted this writ on petitioner’s (plaintiff’s) point which alleged error of the Court of Civil Appeals in failing to sustain the waiver counterpoint.

Plaintiff-petitioner also asserts that the exclusionary provision of the policy is wholly invalid because it deprives the insured of the statutory protection of Article 5.06-1 of the Insurance Code. Although there is a trend in other jurisdictions toward narrow construction or voiding such clauses as unreasonable restrictions on mandatory uninsured motorist coverage, Texas courts have consistently upheld the validity of the provision as a means of protecting the insurer’s subrogation rights against the uninsured motorist or any other person legally responsible for the insured’s injuries. McClelland v. United Services Automobile Association, 525 S.W.2d 271 (Tex.Civ.App.1975, writ ref’d); Jessie v. Security Mutual Casualty Company, 488 S.W.2d 140 (Tex.Civ.App.1972, writ ref’d, n. r. e.); Grissom v. Southern Farm Bureau Casualty Insurance Company, 476 S.W.2d 448 (Tex.Civ.App.1972, writ ref’d, n. r. e.).

The question of whether the insurer waives the consent provision by prior unconditional denial of liability is one of first impression for Texas courts. The issue was not raised in any of the above cited Texas decisions, although the holding on the waiver issue in Stephens v. State Farm, supra, was noted in McClelland v. United Services Automobile Association, supra, in distinguishing the two cases. Those jurisdictions which have examined the issue agree that such denial of liability prior to the insured’s settlement with a third party constitutes a waiver of the consent clause. Employers National Insurance Co. v. Parker, 286 Ala. 42, 236 So.2d 699 (1970); Calhoun v. State Farm Mutual Automobile Ins. Co., 254 Cal.App.2d 407, 62 Cal.Rptr. 177 (1967); Allstate Ins. Co. v. Pietrosh, 85 Nev. 310, 454 P.2d 106 (1969); Gay v. Preferred Risk Mutual Insurance Co., 114 N.H. 11, 314 A.2d 644 (1974); Vanguard Ins. Co. v. Polchlopek, 18 N.Y.2d 376, 275 N.Y.S.2d 515, 222 N.E.2d 383 (1966); Childs v. Allstate Ins. Co., 237 S.C. 455, 117 S.E.2d 867 (1961); and Stephens v. State Farm Mutual Automobile Ins. Co., 508 F.2d 1363 (5th Cir. 1975). See Annot. 25 A.L.R.3d 1275, 1291-1292 (1969), wherein the rule is stated as follows:

“Where an insurer has denied liability under an uninsured motorist indorsement prior to the time that the insured commenced suit or entered into settlement, it has been held that the insurer was thereby precluded from asserting a clause in the indorsement excluding coverage where the insured, without the insurer’s consent, makes a settlement with, or obtains judgment against, a person or organization liable for his injuries.”

In the Stephens ease, supra, the United States Court of Appeals, Fifth Circuit, faced a waiver of consent issue based upon relevant facts which were almost identical to those in the instant case. Stephens, individually and as personal representative of his deceased wife, sued State Farm and Royal Indemnity Company in the United States District Court for the Southern District of Texas for recovery under the uninsured motorist provisions of the Texas standard automobile policies which State Farm carried on Mr. Stephens’ car and which Royal issued on Mrs. Stephens’ car. State Farm filed an answer denying all liability. Thereafter, Stephens settled with Royal for the full recovery limit of its policy without State Farm’s written consent. Whereupon, State Farm amended its pleading, claiming exclusion of coverage for the same reasons alleged against plaintiff in the present case. The trial court entered judgment for Stephens, and State Farm appealed.

The Circuit Court of Appeals affirmed after correctly anticipating that, “based upon reason and out-of-state authority” that we would hold “that a denial of co ver-age waives the consent clause.” It said:

“. . . The rationale behind holding to this particular waiver theory is that a claimant should not be required to approach his insurer, hat in hand, and request consent to settle with another when he has already been told in essence, that the insurer is not concerned, and he is to go his way. It is difficult to see why an insurer should be allowed, on the one hand, to deny liability and thus, in the eyes of the insured breach his contract and, at the same time, on the other hand, be allowed to insist that the insured hon- or all his contractual commitments. . in the case of existent, denied liability the denial is a breach of contract on the part of the insurer and its breach should by rights, relieve the insured of the punitive effects of his failure to comply with consent provisions of the insurance policy. We believe that Texas would so hold.”

We have so held, because the cases cited above are in accord with principles of Texas contract law. State Farm’s contract was to pay up to its policy limits “all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . including death . . . caused by accident and arising out of the . . . use of such uninsured automobile . . Awaiting payment, the policy provides how State Farm may determine by agreement, arbitration, or judicial process any issues affecting the claimant’s entitlement to payment.

State Farm neither paid nor pursued any of its affirmative steps for determination of what, if anything, it was due to pay plaintiff. Instead, it unconditionally denied all liability under the policy. This intentional conduct was inconsistent with claiming the right under the policy to consent before its insured settled with a third party. Such conduct constituted a waiver of that right. “Waiver has been frequently defined as an intentional relinquishment of a known right or intentional conduct inconsistent with claiming it.” (Emphasis supplied.) Massachusetts Bonding & Ins. Co. v. Orkin Exterminating Co., 416 S.W.2d 396, 401 (Tex.1967). See Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233, 236 (1956); Niagara Ins. Co. v. Lee, 73 Tex. 641, 11 S.W. 1024 (1889); American Employers’ Ins. Co. v. Brock, 215 S.W.2d 370 (Tex.Civ.App.1948, writ ref. n. r. e.).

If State Farm had been correct in unconditionally denying coverage and liability, it would have lost nothing by plaintiff’s settlement with Gulf. Since State Farm was incorrect in its denial, it has lost only the inconsistent right to assert the exclusionary consent clause as a grounds for forfeiture of plaintiff’s entire coverage. It has not lost its right of subrogation. See Art. 5.06-1(3), Texas Insurance Code. When it pays the amount adjudged to plaintiff by the trial court, State Farm will still have its right to institute proceedings in the name of plaintiff against the uninsured motorist or any other person responsible for the accident. It is true that State Farm will have to share subrogation rights with Gulf Insurance which may, by reason of the earlier settlement, have a call on the first $10,000 recovered by plaintiff from any person responsible for the accident. The relative status of the subrogation rights of the two companies, as between themselves, is a question which is not now before us, and we express no opinion thereon.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.

Dissenting opinion by POPE, J., in which REAVLEY, J., joins.

YARBROUGH, J., not sitting.

POPE, Justice,

dissenting.

The majority has ruled that an insurer that files a general denial after it has been sued, thereby breaches its contract and waives conditions precedent as well as the exclusions expressed in a policy. In short, the holding is that the insurer’s general denial strips it of an otherwise lawful defense.

Joan Ford was a passenger in an automobile driven by Shirley Harvey. When the Harvey car collided with a vehicle driven by uninsured Jeffrey Whitten, Joan Ford was killed. Joan Ford was insured by State Farm Insurance. The Harvey vehicle was insured by Gulf Insurance Company. The Whitten vehicle was uninsured.

Plaintiff Robert William Ford filed this suit against State Farm and Gulf Insurance on July 21, 1970, and State Farm answered by a general denial. Plaintiff filed an amended petition against the same two defendants but prayed for damages irf" the amount of 30,000 dollars. The defendant State Farm then filed an answer (1) denying that Joan Ford was either married to or a relative of Robert William Ford, the insured, (2) alleging that Shirley Harvey’s negligence was the sole cause of the accident, and (3) denying liability in the amount of 30,000 dollars or in any amount.

Joan Ford’s parents also asserted a claim against Gulf Insurance Company. Gulf then interpleaded Joan’s parents. While matters were in that posture, Gulf Insurance and plaintiffs settled the Ford claim by the payment of 10,000 dollars, its policy limits.

State Farm then amended its pleadings a second time, alleging again that Joan Ford was not Robert Ford’s wife and also that the State Farm policy contained this exclusionary clause: .

This policy does not apply under Part IV:

******
(b) to bodily injury to an insured with respect to such insured, his legal representative or any person entitled to payment under this coverage who shall, without written consent of the Company, make any settlement with any person or organization who may be legally liable therefor;

It was stipulated that neither the plaintiffs nor their representatives informed State Farm about the settlement and did not require or demand State Farm’s consent to the settlement with Gulf Insurance. The quoted provision has been enforced by all of our prior decisions, but this court has now, for the first time, held that an insurer who answers and defends against an unfounded or an excessive claim, thereby breaks its contract. However right the insurance company may be in its defense, it loses by asserting its rights.

The live pleadings upon which this case went to trial prayed for the recovery of 30,000 dollars. Under no theory, were the two defendants liable as insurers for more than 10,000 dollars each for a combined total of 20,000 dollars. The insurer had and asserted a defense to that excessive claim and actually won the case. The holding of the majority is that an insurer who actually prevails upon trial to defeat a false and excessive claim, nevertheless must lose his policy defenses. This means that an insurer is put to an election to defend against an excessive claim and lose its contract rights or save its contract rights by failing to answer or defend. By not answering, the insurer saves its contract rights, but a default judgment for the excessive amount may then be adjudged against it.

State Farm had a second defense. State Farm alleged that Joan Ford, the decedent, was not the wife of Robert Ford. Robert Ford was State Farm’s insured. The policy would, of course, reach Robert Ford’s wife, but it did not cover third parties. State Farm alleged that Joan Ford was not the wife of its insured Robert Ford at the time of the accident. The contention was not frivolous. The plaintiffs joined in the stipulation that:

ROBERT WILLIAM FORD, JR. and JOAN ELIZABETH FORD were married on May 13, 1962 and were divorced on May 8, 1967; JOAN ELIZABETH FORD subsequently married JIMMY LEE BURKE, which marriage ended in divorce on May 22, 1969, in Harris County, Texas.

The parties, in advance of trial, isolated three issues which needed to be determined, and then stated the first one as:

Whether JOAN ELIZABETH FORD was the spouse of ROBERT WILLIAM FORD, JR., at the time of her death on October 18, 1969, so as to qualify her as an insured under the provisions of the automobile liability policy issued by STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY to ROBERT WILLIAM FORD, JR.

Our question again is not whether the insurer succeeded or failed in its defense; it is whether an insurer can assert such a defense without forfeiting policy rights and defenses. Apparently the proof established the fact of a common law marriage. We have no statement of facts, and the trial court’s determination that Joan was in fact, the spouse of Robert Ford is not challenged and it was not attacked before the court of civil appeals. But the fact of marriage between Robert Ford and Joan Ford required a trial for its determination. That is the reason an insured is entitled to answer and defend a lawsuit.

The majority opinion deviates from past decisions which have consistently followed the contract requirements that consent in writing to “any settlement with any person or organization who may be legally liable therefor. . . . ” [Emphasis added.] The general state of the law is expressed by Widiss, A Guide to Uninsured Motorist Coverage § 5.7 (Supp.1976):

Decisions continue to hold that failure to comply with the provision in the endorsement that requires the insurer’s consent to a settlement works a forfeiture of the insured’s rights under the uninsured motorist coverage.

Faced with the argument that the prohibitions without consent to settle any claim with any person is restricted to a settlement with the uninsured motorist, Professor Wid-iss says:

However, two 1972 Texas cases reach the opposite result — holding that the language of the endorsement is plain and clear, and must be enforced. In addition, in two 1971 cases where a parent failed to secure consent for a settlement with the driver’s insurer in accidents where the children were killed while riding as passengers in an insured vehicle that collided with an uninsured motorist — the courts held that the parents were precluded by such settlements from recovering under their uninsured motorist coverage since the endorsement provision applied to settlements with any person or organization who might be legally liable. Sec. 5.10.

As in the case at issue, the plaintiff in McClelland v. United Services Automobile Association, 525 S.W.2d 271 (Tex.Civ.App.1975, writ ref’d n. r. e.), was a passenger who was suing her own insurer, U.S.A.A. McClelland was riding in a car owned by Charles Coulter which was insured by Allstate Insurance Company. The Coulter car ran into a vehicle of an uninsured motorist. The plaintiff McClelland settled with the insurer of the host vehicle (Coulter) without notice or consent to her own insurer. These facts exactly parallel those of our present case. The court in enforcing the consent to settle provision held that the passenger’s settlement with the driver’s insurer defeated the subrogation right of the passenger’s insurer to sue the driver of the host vehicle. A potential target for recovery by the passenger’s insurer was thus eliminated.

Jessie v. Security Mutual Casualty Company, 488 S.W.2d 140 (Tex.Civ.App.1972, writ ref’d n. r. e.), for the same reason reached the identical conclusion. That case, when it was presented to this court in 1972, squarely presented the question which is now before us. That opinion on its face is contrary to our present decision. It holds that the consent is required in order to protect an insurer’s subrogation rights not only against the uninsured driver but of all other possibly liable persons whether insured or not. The Jessie opinion cited the same legal authority which is now cited by the majority opinion for a directly contrary result. In Jessie, the court determined that the view expressed by Widiss, cited above, was the better one. Our order refusing the writ, no reversible error, could only have been made if we approved the judgment denying relief to the plaintiff because he settled his cause without obtaining prior consent of his own insurer who held a valuable subrogation right.

The cases upon which the majority relies for its holding that the insurer had waived its policy provision which required “consent to settle” are cases in which there was an arbitrary withholding of consent by the insurer. In fact, that is the title under which those cases are discussed in the annotation which collects them. 23 A.L.R.3d 1289, Uninsured Motorist Clause — Settlement (1969). In the face of the stipulation between the parties, rather than an arbitrary refusal to consent, there were some very valid issues concerning State Farm’s liability. As one example, the parties in advance of trial filed the stipulation which isolated three distinct issues, the first being:

Whether JOAN ELIZABETH FORD was the spouse of ROBERT WILLIAM FORD, JR., at the time of her death on October 18, 1969, so as to qualify her as an insured under the provisions of the automobile liability policy issued by STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY to ROBERT WILLIAM FORD, JR.

The issue was not a spurious one. The issue existed continuously from the time of the accident in question, and yet, State Farm has been charged with breaching its contract for insisting upon proof that the divorced decedent was nevertheless the common law spouse of its insured.

The majority places its main reliance upon Stephens v. State Farm Mutual Automobile Ins. Co., 508 F.2d 1363 (1975). Mr. and Mrs. Stephens were the plaintiffs. They were both riding in Mrs. Stephens’ car. She was driving when it collided with an uninsured motorist’s vehicle. Mrs. Stephens was insured by Royal Indemnity Company; Mr. Stephens was insured by State Farm Mutual Automobile Insurance Company. Mr. Stephens sued both insurers, then settled with Royal for its full limits of the policy. State Farm, the insurer for the driver, did not consent to the settlement, but the Fifth Circuit predicted that Texas would hold that State Farm by denying the claim had waived its right to rely upon its “consent to settlement” provision. The court cited the Texas cases which have actually respected the validity and stated the reasons for the “consent to settlement” exclusion. It also cited Magness v. State Farm Insurance Co., an unreported case from the Houston Fourteenth District Court of Civil Appeals which honored the policy defense. The same Houston Fourteenth District Court of Civil Appeals decided the present case consistent with its earlier Magness opinion. We now have two consistent decisions from the same court of civil appeals. But, the Texas Supreme Court has now inconsistently gone both ways.

The difference between the two directions our cases now send us is said to be that the insurer in this case waived'the exclusion by filing a general denial to a lawsuit. That was a waiver? This is a new kind of a waiver. “Waiver has been frequently defined as an intentional relinquishment of a known right or intentional conduct inconsistent with claiming it.” Massachusetts Bonding & Ins. Co. v. Orkin Exterm. Co., 416 S.W.2d 396, 401 (Tex.1967). The rule is an old one. Texas & P. Ry. Co. v. Wood, 145 Tex. 534, 199 S.W.2d 652 (1947); Rolison v. Puckett, 145 Tex. 366, 198 S.W.2d 74 (1946).

The insurer in the present case relied upon the right. It pleaded it. It defended upon it. It hired a lawyer to insist upon it. At no point, and by no proof, was it even contended that the insurer intentionally relinquished that right. The insurer is now in trouble, not by reason of its intentional surrender, but by reason of its insistence upon the right. That is not a waiver.

The insurer did not take a position inconsistent with its policy. The policy required its consent to settle and it insisted upon that right. The policy insured only certain persons, not including a divorced wife of the insured, and it insisted upon that. The policy insured only for 10,000 dollars, and the insurer insisted that it was not liable for 30,000 dollars. Insisting upon compliance with the terms of the policy cannot be called “conduct inconsistent” with the policy. There was no waiver.

I respectfully dissent.

REAVLEY, J., joins in this dissent.

      . The limits of liability under each of the two policies was $10,000. See American Motorists Insurance Co. v. Briggs, 514 S.W.2d 233 (Tex.1974), and American Liberty Insurance Co. v. Ranzau, 481 S.W.2d 793 (Tex.1972), for rule as to coverage by more than one policy.

      . Other defensive allegations were (1) that Mrs. Ford was not married to plaintiff at the time of her death, (2) that the sole proximate cause of the accident was the negligence of Shirley Harvey, and (3) in the alternative, that it was an unavoidable accident. All were decided against State Farm at trial and none are brought forth in this appeal. State Farm conceded in its brief in the Court of Civil Appeals that “Joan Elizabeth Ford was the spouse of Robert W. Ford, Jr., at the time of her death on October 18, 1969,” and that “the collision was attributable to the negligence of Jeffrey Whit-ten, who was an uninsured motorist.” (Appellant’s Br., 2.)

      . This agreement contained the usual subrogation and trust provisions authorized by Article 5.06-1(3) of the Texas Insurance Code, which reads in part as follows:
      “In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury, sickness or disease, or death for which such payment is made,
      All statutory references are to Vernon’s Tex. Ins.Code Ann., unless otherwise noted.

      . See cases cited in Annot. 25 A.L.R.3d 1275, 1281-1285 (1969); Id. Supp. 39^0; and Hebert v. Green, 311 So.2d 223 (S.Ct.La.1975); and Hawaiian Insurance & Guaranty Co. v. Mead, 14 Wash.App. 43, 538 P.2d 865 (1975).