author: HARBISON, Justice.

text:
    SHELBY COUNTY, Tennessee, et al., Petitioners-Respondents, v. Erlewood BARDEN and wife et al., Respondents-Petitioners.
    Supreme Court of Tennessee.
    Sept. 15, 1975.

      James M. Maniré, William W. Dunlap, Jr., C. Cleveland Drennon, Jr., County Atty., Memphis, for petitioners-respondents.
    George T. Lewis, Jr., Joseph A. Heffing-ton, III, Memphis, for respondents-petitioners; Watson, Lewis & Knolton, Memphis, of counsel.
   OPINION

HARBISON, Justice.

These suits were instituted in the Circuit Court of Shelby County, Tennessee by Mr. and Mrs. Erlewood Barden as landowners and White Stone Company, Inc., a corporation, as tenant, for damages by reason of the closing of a county road. Named as defendants were Shelby County, certain of its officials, and the St. Louis-San Francisco Railway Company. The suit was filed on July 9, 1970, within the one-year statute of limitations governing actions by property owners for inverse condemnation as provided in T.C.A. §§ 23-1423, 1424.

There is no dispute as to the material facts. The property of Mr. and Mrs. Bar-den consists of about twenty acres fronting on Hungerford Road in Shelby County. The landowners acquired this property in 1961, and at the time of the closing of Hungerford Road to the north of their property, they had constructed thereon specially equipped buildings for the conducting of a precast concrete, stone and gravel business, together with paving and other improvements. The premises were leased by the landowners to White Stone Company, Inc., a Tennessee corporation, of which Mr. Barden owned 75% of the stock, with the remaining 25% being owned by one of his business associates. The corporation was the owner of a number of vehicles and a large quantity of special equipment used in the conduct of the corporate business.

By a resolution dated July 10, 1969, the legality of which is not here in issue, the County Commissioners of Shelby County closed Hungerford Road so that the St. Louis-San Francisco Railway Company could build spur tracks across the right-of-way to a new brewery built- by the Joseph Schlitz Brewing Company. The railway company entered into an indemnity agreement with the county, to hold the county harmless on account of any claims for damages arising out of closing of the road.

Separate suits were filed on behalf of the landowners and of the tenant in these cases, claiming damages on the theory that the closing of Hungerford Road deprived the parties of their principal access to U. S. Highway 78 into the City of Memphis. Pri- or to the closing of the road, the principal traffic flow to the north from the property of the parties was via Hungerford Road to U. S. Highway 78. Hungerford Road was closed about three-tenths of a mile north of the boundary of the property of the plaintiffs, so that it is now necessary for traffic to proceed south on Hungerford Road and thereby through side roads to the west, by a route which intersects U. S. Highway 78 some distance to the south of the original point of intersection. This additional route is described as more circuitous and burdensome than the previous one, and entails an additional distance of between .85 miles and one mile. Mr. Barden testified that it took approximately ten additional minutes each way for a truck driver to make a trip from the plant by this alternate route, or a total of approximately twenty minutes per round trip.

Although initially an issue was made by the defendants below as to the right of the plaintiffs to maintain their action, this issue was ultimately abandoned, and the trial judge submitted to the jury a single issue, without objection from the defendants, that issue being the amount of damages to which the plaintiffs were entitled.

Actions by landowners for deprivation or impairment of their rights of ingress and egress on public roads have been long recognized in this state, and there are a large number of reported cases dealing with the subject. Such suits have generally been recognized as inverse condemnation actions; and the theory upon which the actions have been permitted has been that of deprivation or public taking of a property right of a landowner. Procedurally the actions have sometimes been referred to as suits in tort, and the procedures governing the filing of tort actions have been deemed available for this kind of action. See Scott v. Roane County, 478 S.W.2d 886 (Tenn.1972).

The authorizing statute permits a landowner to “petition for a jury of inquest” in which case the action proceeds as nearly as possible as an ordinary condemnation suit. It also provides, however, that in the alternative “he • may sue for damages in the ordinary way, in which case the jury shall lay off the land by metes and bounds and assess the damages, as upon the trial of an appeal from the return of a jury of inquest.” T.C.A. § 23-1423.

Whether initiated by a petition for a jury of inquest, or begun as an ordinary damage suit, it is well settled in the Tennessee cases that the measure of damages to the landowner is that used in condemnation cases.

Thus, in the case of Brookside Mills, Inc. v. Moulton, 55 Tenn.App. 643, 651, 404 S.W.2d 258, 262 (1965), a regular condemnation proceeding, it is stated:

“Where the property right taken is the right of access to an abutting street, the measure of damages is the difference in the fair cash market value of the defendant’s property prior to the taking or impairment of the access and its value after the taking and the construction of the project for which the property right was taken. See T.C.A. § 23-1537. The trier of fact, in determining the amount of the award, must be governed by the principle that the owner of the land shall be treated as one offering it for sale, at a fair price, while not being under any stress of circumstances that would induce him to sacrifice his property, and the condemnor as an intending buyer, who is likewise free from stress, as not being forced to buy. Lewisburg & N. R. Co. v. Hinds, 134 Tenn. 293, 183 S.W. 985, L.R.A. 1916E, 420. The fact that the property has other access, or is given other access in the course of construction would be a material factor to be taken into consideration in determining the before and after value of defendant’s property and, consequently, the value of the access taken.”

And, in the case of Stokely v. Southern Railway Company, 57 Tenn.App. 271, 279, 418 S.W.2d 255, 260 (1967), an inverse condemnation proceeding, the court said:

“Where the property right taken is the right of access to or over a public street, the measure of damages is the difference in the fair cash market value of the plaintiff’s property prior to the taking or impairment of the access and its value after the taking and the construction of the project for which the property right was taken.”

In the instant case, the trial judge carefully conducted the trial within the scope of this measure of damages, but the case was complicated by the fact that the property in question was under lease to an operating corporation. At the conclusion of a lengthy trial, the jury awarded the landowners the sum of $33,000.00 for their interest in the property and awarded the lessee the sum of $10,000.00. Both the landowners and the tenant appealed to the Court of Appeals, assigning several errors dealing with the admission and exclusion of evidence.

The Court of Appeals, however, instead of directly responding to these assignments of error, concluded that the trial court had misapplied the measure of damages, and reversed the case for a new trial. The Court of Appeals recognized that ordinarily in cases where the interests of both a landowner and tenant are affected by eminent domain proceedings, the jury must assess the total damages for the taking, and apportion them between the landlord and tenant according to their respective interests. The trial judge so instructed the jury in the present case, but the Court of Appeals reversed, stating that it did not feel that this rule should be applicable where there was no actual taking of property but merely an impairment of access to the property.

The Court of Appeals cited no authority for its holding. It referred to the case of Gallatin Housing Authority v. Chambers, 50 Tenn.App. 441, 362 S.W.2d 270 (1962). In that case the court recognized the rule of apportionment but went further to say that the amount of incidental damages to the owner and lessee was not restricted to the market value of the land taken where only part of a tract was condemned.

The court in that ease, however, was speaking of incidental damages only, and not the rule used in fixing the value of the basic property right which was taken. In the Brookside Mills case, supra, the court pointed out that the basic measure to be applied is the value of the right taken, rather than the rules regarding incidental damages. In the trial of that particular action, however, the parties had proceeded upon the theory that loss of access would be treated as an element of incidental damages which could be offset by incidental benefits, and the jury in fact disallowed any recovery for loss of access, holding that it had been more than offset by incidental benefits resulting from the public improvement involved. Since the case had been tried upon that theory, the Court of Appeals correctly declined to permit a change of position on appeal so as to permit the landowner to claim the before and after value without regard to incidental benefits.

No such problem exists in the present case. The trial judge insisted upon and held the parties strictly to the before and after values involved, and there was no mention of either incidental damages or incidental benefits in his charge to the jury. We do not think that the Gallatin Housing Authority case, supra, supports the rule announced by the Court of Appeals in the instant case, to the effect that where there is no actual taking of the land, damages to the lessor and to the lessee shall be assessed separately and independently of each other, rather than as a whole.

As stated, the Court of Appeals in the present case ordered a new trial upon the latter theory of damages, and did not respond to the assignments of error made by the original plaintiffs as to the admission or exclusion of evidence by the trial judge.

In the case of Moulton v. George, 208 Tenn. 586, 348 S.W.2d 129 (1961), this Court clearly stated that total compensation to be paid for property rights in condemned property must not exceed the unencumbered fee value, and the total compensation must be apportioned between the reversion and the lessee according to their respective interests. This rule has been followed in a number of cases, and the trial judge carefully so instructed the jury in the present case, where the-claims of the lessee and of the lessors were consolidated and tried together.

There were no exceptions taken to the charge of the trial judge to the jury, nor were any special requests tendered on behalf of the original plaintiffs. No issue whatever was made in the motion for a new trial or in the appeal to the Court of Appeals as to the correctness of the charge of the trial court. We have scrutinized it carefully, and find that it comports in every respect with the case law of this state. Accordingly we hold that the Court of Appeals was in error in reversing the trial court on the basis of his instructions, and in suggesting a different measure of damages in cases where there is no actual taking, but merely an impairment of property right, from the rules applied in cases where there is in fact a total or partial taking.

The existence of a lease on property or on a property right which has been appropriated for public purposes is, of course, always a complicating factor in the assessment and apportionment of damages. The rules by which leasehold interests are to be valued in this state, however, are well settled and have been clearly stated in a number of cases. The lessee or tenant is entitled to any excess in value of his unexpired leasehold over and above the rentals which would be due for the unexpired term. See Moulton v. George, 208 Tenn. 586, 348 S.W.2d 129 (1961); Mason v. City of Nashville, 155 Tenn. 256, 291 S.W. 1074 (1927); State v. Texaco, Inc., 49 Tenn.App. 278, 354 S.W.2d 792 (1961).

In the present case the issue was somewhat complicated by the fact that the lessee was a closely held corporation, in which the owner of the fee held 75% of the common stock. The fact that the original plaintiffs recognized that there must be separate awards, however, is clearly demonstrated by the fact that they filed two suits — one for the lessee and a separate one for the owners of the reversion. For convenience, the cases were consolidated for trial and tried together, but they were two separate suits, and there had to be an apportionment of the award between the owners of the separate property interests. At several points during the trial record and on appeal, counsel for the plaintiffs has stated that it was “relatively unimportant” how the damages were awarded since the corporation was largely owned by the reversioners. Further, Mr. Barden testified that the lease which was made between the landowners and the corporation was not an arm’s length or negotiated lease, and he stated that the rental had simply been set at a sufficient amount to amortize the mortgage indebtedness and to pay taxes and other necessary expenses to the owners.

Nevertheless, where parties have deliberately undertaken to do business in corporate form, for tax purposes, accounting and other reasons, they must be held to the corporate form and they cannot shunt aside at their convenience legal entities and the legal aspects thereof. Thus it will simply not do for the landowners to state that they do not really care how damages are apportioned. The law itself requires apportionment between the lessor and the lessee where separate interests are taken or impaired by public improvements, and parties simply must conform their proof to the legal measures of damages prescribed, no matter how artificial or confining these rules may seem to be. The corporate tenant had been deliberately created, and it was paying rent, which it deducted upon its tax returns, and which was reported as income by the landowners. The burden of proof rested upon the corporate tenant to prove the damage to its access right, if any, by competent evidence based upon the difference between the rental required under the lease and the market value of the leasehold. This it made little or no effort to do in any credible or competent fashion. Mr. Barden undertook to testify on direct examination that the corporation held a lease on the property through the year 1989, and he undertook to ascribe a loss of leasehold value to the tenant in excess of $20,000.00 per annum. When the written lease was produced on cross-examination, however, it developed that the lease was only through the year 1980, and that the annual rental had been raised from $2,000.00 per month to $4,000.00 per month after the road closing in question. Indeed, throughout his entire testimony, Mr. Barden did not trouble to support or substantiate the accuracy of his testimony by cost records, profit and loss statements, balance sheets or other records, but contented himself with making the most general estimates. Obviously disappointed with the amount of damages which the jury awarded, both the landowner and the tenant appealed to the Court of Appeals, assigning error as to the rulings of the trial judge on matters of evidence.

The following is a brief summary of the evidence which the jury were permitted to consider. An expert appraiser employed by the plaintiffs testified that in his opinion there had been a total damage or impairment of value to the property of the plaintiffs in the amount of $49,875.00. He did not allocate this between the landlord and tenant. Another expert for the plaintiffs testified that he thought there had been a total depreciation in value in the amount of $64,000.00 by reason of loss of site location and loss of access, due to the closing of the road. Mr. Barden, the only property owner or corporate officer called upon to give an estimate of damages, fixed the leasehold damage at $423,300.00 and damage to the land and buildings in reversion at approximately $189,350.00. An expert witness for the defendants testified that he felt there had been some impairment of value to the property by reason of the closing of the road, and he fixed the amount at $32,500.00. He did state, however, that he felt that 16.9 acres of the total parcel had suffered damage, which he estimated at $2500.00 per acre. A computation of damages, on this basis, would lead to a total of $42,500.00, rather than the lower figure to which he actually testified.

The jury verdict, allowing $33,000.00 to the fee and $10,000.00 to the lease was, therefore, well within the range of the testimony which they were permitted to consider.

The landowners assigned as error in the Court of Appeals and in this Court the fact that the trial judge excluded from jury consideration the indemnity agreement between the St. Louis-San Francisco Railway Company and Shelby County. We are in agreement with the Court of Appeals that since the only issue to be considered by the jury was one of damages, the indemnity agreement had no probative value and was properly excluded.

The landowners further claimed in their assignments of error that the verdict of the jury was contrary to the weight and preponderance of the evidence — an assignment which, of course, cannot be considered by appellate courts in civil cases appealed from a jury verdict.

Another assignment of error of the property owners was to the effect that the trial court erred in excluding from consideration by the jury testimony of two witnesses, Roger Maler, and Paul R. Lowry, who purported to offer expert opinion evidence on the depreciation of the buildings. The trial judge, after a full examination of these witnesses in the absence of the jury, concluded that they were not properly qualified and did not have sufficient experience or familiarity with real estate values to permit consideration of their testimony. The trial judge, of course, has very broad discretion in the conduct of a trial, and probably in no area does he have wider discretion than dealing with the qualification and admission of the testimony of expert witnesses. We find no error in his ruling with regard to this testimony. See Brookside Mills, Inc. v. Moulton, 55 Tenn.App. 643, 654, 404 S.W.2d 258 (1965).

The fourth assignment of error of the landowners, however, causes us much more concern and is of much more serious import. This is to the effect that the trial judge erred in excluding the testimony of the witness, C. E. Klank, as to impairment of value of the immobile equipment, fixtures and machinery belonging to the tenant. Mr. Barden’s general testimony was that this equipment had been paid for by the tenant and belonged to it. There was exhibited in the record what purports to be a copy of the written lease between the tenant and the landowners, but we cannot be sure from the copy exhibited in the record whether all of the terms and provisions of the lease are included in this copy or not. One of the pages, concluding with paragraph 26, appears to be incomplete. The signature portions of the original lease are not included, but only the signatures to an amendment to the lease, executed in 1970. We cannot be sure from the lease, therefore, whether or not the items of equipment and fixtures for which the tenant claimed impairment were removable by the tenant, or whether they became a part of the realty and became property of the landlord upon termination of the lease. We conclude from such testimony as was given on the point and from briefs of counsel that these items belonged to the tenant, and were part of its operating plant equipment.

It has been held in this state that a lessee is entitled to compensation for fixtures, structures and other improvements installed or erected by him upon property taken in inverse condemnation cases, if, as against the lessor, he has the right to remove such improvements prior to or upon expiration of the term. See Hopper v. Davidson County, 206 Tenn. 393, 333 S.W.2d 917 (1960). Further, in the case of Yates & Donelson Co. v. City of Memphis, 137 Tenn. 642, 194 S.W. 903 (1917), in a case involving impairment of access to a street, the Court said:

“It is elementary that damages consequent upon a taking of property or a property right are fixed on the value or depreciation of the property affected for any use for which it would ordinarily sell in the market, whether it be that use to which it is presently put, or some different use to which it is adapted. The structures on the property were built for flouring mill purposes, and were peculiarly suited for that use; and the whole was being operated at the time of the taking, involved in the curtailment or loss of ingress and egress, and was not to be treated as a dead or severed plant.
“We are of opinion that the ruling on testimony and the charge led or left the jury to disregard the fact that the property affected was in actual use by plaintiff as a going concern.” 137 Tenn. at 647, 194 S.W. at 904.

In that case the Court stated that the determination of whether items were to be considered fixtures or removable was to be reached according to the rules governing vendor and vendee. There was no lease involved in that case.

In the present case Mr. Klank testified that he had appraised the equipment in question for a bank at a period of time after the closing of Hungerford Road. He testified that he had excluded from the equipment list all items which he deemed to be easily removable, and he undertook to express an opinion on depreciation in value of that equipment which he felt either was not removable as a practical matter, or which would be destroyed in the course of moving.

We are of the opinion that this testimony was competent, and that the trial judge was in error in excluding it from consideration by the jury. The mere fact that there was no actual taking of any of the land or equipment does not exclude the possibility that there may have been a depreciation in its value by reason of loss of accessibility or impairment of ingress or egress. This was precisely the situation in the Yates case, supra, and the fact that the impairment is claimed by a lessee, rather than the reversioner, does not, in our opinion, alter the rules of evidence laid down in the cases cited above. Such evidence, in our opinion, is admissible, but only insofar as it may reflect upon the leasehold value and its impairment, if any, under the general measure of damages governing leaseholds previously referred to. Its admission should be limited strictly to this purpose; the depreciation in value of the equipment is not itself recoverable as a separate item of damages. See Annot., 1 A.L.R.2d 878 (1948); 3 A.L.R.2d 286, 302 (1949). See also Nashville Housing Authority v. Hill, 497 S.W.2d 917 (Tenn.App.1972).

We cannot say, from an examination of this record that the proffered testimony was merely cumulative, or that its exclusion was harmless error.

The remaining assignment of error made by the landowners in the Court of Appeals and in this Court was to the effect that the trial court erred in excluding from consideration by the jury certain evidence as to profits and losses of the tenant in the operation of its business. The trial court did not, in fact, entirely exclude this type of testimony from consideration of the jury. He simply ruled that it would be limited in scope to approximately one year prior to the taking and to approximately one and one-half years subsequent to the taking. We cannot find in our examination of the record at any point where counsel for the plaintiffs actually put before the jury the figures which the trial judge, in his rulings, had permitted. Mr. Barden testified generally that the business had shown a profit every year through the year of the closing of the road, and in an offer of proof, made in the absence of the jury, he summarized some profit and loss statements which had been filed as exhibits to discovery proceedings, indicating a very high profit in the year 1970, and substantial losses in the years thereafter.

Again, however, we must emphasize the generality and lack of documentation of Mr. Barden’s testimony. He undertook to state generally that it would cost the tenant about $42,500.00 per year in extra wages of drivers, fuel and operating costs of vehicles, to drive the additional one mile entailed by the closing of Hungerford Road. At no point, however, did he purport to offer in evidence his actual cost figures for any period of time either before or subsequent to the closing of the road. These must have been available to him, at least for the year 1970, and the trial court had ruled that he would permit the jury to consider operating figures through the end of the year 1970.

We find no abuse of discretion by the trial judge in his ruling on this item.

In the case of L & N Turnpike Co. v. Creveling, 159 Tenn. 147, 160, 17 S.W.2d 22, 26 (1928):

.“While we hold that net income, present or prospective, is not controlling, evidence thereof is altogether competent; the weight to be given such evidence as may be adduced being for the jury, in connection with all other material evidence.”

See also State v. Rascoe, 181 Tenn. 43, 49, 178 S.W.2d 392 (1944).

Mr. Barden testified that many factors entered into the losses and financial difficulties which his firm encountered in the years subsequent to 1970. He also testified that another access road was made available to his company some three years after the closing of Hungerford Road. Under all of the circumstances, therefore, we think the trial judge correctly limited the proffered evidence of profits and losses to a period of time relatively close to the date of the closing of the road, and this assignment of error is overruled.

From the foregoing, we are of the opinion that the case must be remanded to the trial court for a new trial, in accordance with the rules of evidence and damages hereinabove set forth.

All costs incident to the appeal of this case will be divided equally between the parties. Costs in the trial court will abide the result there.

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

      . See e. g., Graham v. Hamilton County, 224 Tenn. 82, 450 S.W.2d 571 (1969); Sweetwater Valley Memorial Park, Inc. v. City of Sweetwater, 213 Tenn. 1, 372 S.W.2d 168 (1963); Stewart v. Sullivan County, 196 Tenn. 49, 264 S.W.2d 217 (1953); Morgan County v. Goans, 138 Tenn. 381, 198 S.W. 69, 5 A.L.R. 198 (1917); Railroad Co. v. Moriarity, 135 Tenn. 446, 186 S.W. 1053 (1916); Hamilton County v. Rape, 101 Tenn. 222, 47 S.W. 416 (1898); Speight v. Lock-hart, 524 S.W.2d 249, 253 (Tenn.App.1975); Knox County v. Lemarr, 20 Tenn.App. 258, 97 S.W.2d 659 (1936); Shelby County v. Dodson, 13 Tenn.App. 392 (1930).

      . The special one-year statute of limitations, however, is applicable rather than the general statute of three years governing property damage claims. Central Realty Co. v. Chattanooga, 169 Tenn. 525, 89 S.W.2d 346 (1936).

      . See Widdicombe v. McGuire, 221 Tenn. 601, 607, 429 S.W.2d 815 (1968).

      . Apparently the trial judge applied the rule which obtains in housing authority and some other direct condemnation proceedings to the effect that a condemnor may not acquire personal property under eminent domain, and that the property owner can recover only items of moving expense in connection with personalty. See Memphis Housing Authority v. Memphis Steam Laundry-Cleaners, Inc., 225 Tenn. 46, 463 S.W.2d 677 (1971). This limitation, as pointed out in the Hopper and Yates & Donelson cases, does not apply to inverse condemnation cases. See also Zirkle v. City of Kingston, 217 Tenn. 210, 220, 396 S.W.2d 356 (1965).


source: Caselaw Access Project

author: NEARN, Judge.

license: Public Domain

text:
    Ronald Edward JOHNSON and Rita Johnson, Appellees-Appellants, v. WOMAN’S HOSPITAL and William Pallas, M.D., Appellants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    Feb. 12, 1975.
    Certiorari Denied by Supreme Court Aug. 11, 1975.

      Strang, Fletcher, Carriger, Walker & Hodge, Chattanooga, for Woman’s Hospital, appellant-appellee.
    W. A. Moody, Nashville, for William Pal-las, M. D., appellant-appellee.
    Robert J. Shockey, Chattanooga, for ap-pellees-appellants.
   NEARN, Judge.

The plaintiffs filed suit for the recovery of damages, both compensatory and punitive, for breach of contract to bury, and for the alleged outrageous conduct of the defendants. The jury returned a verdict against both defendants in favor of Rita Johnson for the sum of $100,000 compensatory damages and $125,000 punitive damages. Ronald Johnson, the husband of Rita Johnson, was awarded the sum of $75,000 as compensatory damages in his claim for his wife’s medical expenses, etc. and consortium.

Motions for a new trial were seasonably made by both defendants. After hearing the motions the Trial Judge suggested a remittitur of $75,000 from the jury award for punitive damages and a remittitur of $50,000 from Mr. Johnson’s compensatory award.

The plaintiffs accepted the remittiturs under protest.

The judgment as finally entered below is in the amount of $50,000 for Mrs. Johnson as punitive damages; $100,000 to her as compensatory damages and $25,000 to her husband Ronald Johnson.

Both the defendants and the plaintiffs have appealed. The error assigned by the plaintiffs is confined to the remittitur. The Assignments of Error of the defendants total twenty-nine.

An understanding of our treatment of this appeal requires a comprehension of the nature of the causes of action involved.

The complaint alleged that the relationship of physician-patient existed between Dr. Pallas and Mrs. Johnson as Dr. Pallas was attending her during her pregnancy. The childbirth was expected in September 1972, but sometime prior to June 1, 1972, Mrs. Johnson began having difficulties with her pregnancy and was twice hospitalized; primarily for observation and bed rest. On June 1, 1972, she experienced bleeding and was again placed in the defendant hospital. On June 9, 1972, she gave birth to a child which was in the sixth month of term. The premature infant expired shortly after birth. Both a certificate of live birth and a death certificate were issued.

The complaint further alleged that plaintiff

“ — had a contractual agreement with defendants for the birth of her baby and for post delivery care. That within the scope of this contract defendants agreed to take the responsibility for the proper and permanent disposition of plaintiffs’ child. This included not only a responsibility to fulfill their obligation to the body of the child, but more so a responsibility to see that a young mother grieved by the unfortunate death of her child would have the peace of mind and assurance that her baby’s body was put to rest. Plaintiff avers that in failing to timely notify her of defendants’ inability to fulfill part of their obligation they mutilated her right to the aforementioned mental security.”

The complaint also alleged that Mrs. Johnson had understood that her baby would be given repose provided by the defendants which would be consistent with common traditions of human dignity. However, when she visited Dr. Pallas for her six weeks checkup she noted a pathologist report which was attached to her medical chart. The report stated that the fetus was past the fifth lunar month in development and hospital rules and State law prohibited disposal of it as a surgical specimen. The complaint alleged that Mrs. Johnson was shocked at the contents of the pathologist report and asked the meaning thereof from Dr. Pallas as she had understood that the body had been disposed of by common traditions of human dignity. Dr. Pallas instructed his nurse to take Mrs. Johnson to the hospital to see a Mrs. Chaney. Mrs. Johnson was taken across the way to the hospital where she

“ — was led to a section of the hospital where a freezer was opened and she was handed a gallon jar of formaldehyde with the discolored and shrivelled body of her child floating inside.”

Dr. Pallas denied that he or his nurse took any part in the display of the body in the jar of formaldehyde. The hospital denied that the display took place in the manner alleged. Dr. Pallas also denied the existence of any contract to bury or dispose of the body of the infant between himself and plaintiffs. The hospital denied any contract to bury the infant, but alleged that the hospital had only agreed to dispose of same as a surgical specimen, if possible.

The complaint further charged that,

“ — defendants’ failure to act within the limitations granted them relative to her child and their wanton, willful and inhuman display of the child’s body to her afterwards were violations of both her legal rights and common decency and amounted to outrageous human conduct.”

Special issues were submitted to the jury. Among other things the jury was asked if plaintiff was entitled to recover on (a) “Outrageous conduct theory” or (b) “Theory based upon agreement to dispose of immature baby’s body.”

The jury answered that recovery was based on both of the above theories and held both defendants liable for compensatory and punitive damages.

As now may be seen both from the pleadings and the manner in which the case was submitted to the jury, plaintiffs sought recovery of damages arising out of contract and damages arising out of tort.

We will at this point consider the majority of the 15 Assignments of Error made by the defendant hospital. Those not now treated will be considered along with the Assignments of Error of Dr. Pallas.

As its second Assignment of Error counsel for defendant hospital charges the Trial Coutt with error in overruling the defendant hospital’s motion for a directed verdict made at the conclusion of plaintiffs proof. This Assignment of Error is overruled. The motion was waived when the defendant hospital elected to adduce its proof after the motion was overruled. Railway and Light Co. v. Henderson (1906) 118 Tenn. 284, 99 S.W. 700.

The fourth Assignment of Error is that the Trial Court erred in overruling the defendant’s motion for a separate trial on the issues of outrageous conduct and contract theory. Rule 18 of T.R.C.P. provides for the joinder of contract and tort claims in a single action. We are unable to perceive any valid reason why these two claims should not have been tried together. The Trial Judge did not abuse his discretion and the Assignment of Error is overruled.

The fifth Assignment of Error is that the Trial Judge erred in charging the jury on the theory of outrageous conduct. In support of this Assignment of Error it is argued that there is no such thing as the tort of outrageous conduct in this State and even if there is the proof failed to show such tort and the charge on the subject was meager and insufficient.

The tort of outrageous conduct is recognized by this State. See Medlin v. Allied Investment Co. (1966) 217 Tenn. 469, 398 S.W.2d 270. The remainder of the argument on this Assignment is addressed to the alleged failure of proof, or error in the charge, which are the subject of other Assignments of Error and will be treated in their place. Accordingly, the fifth Assignment of Error is overruled.

By its sixth Assignment of Error the defendant hospital faults the Trial Judge for charging the jury on the contract theory of liability. The argument in support of this Assignment of Error is actually an argument to the effect that there is no evidence of a contract between the defendant hospital and the plaintiff and is in fact a duplication of another Assignment of Error. This argument will be considered with the Assignment of Error which complains that there is no evidence to support a verdict. Accordingly, the sixth Assignment of Error is overruled.

The seventh Assignment of Error faults the Trial Court for failing to charge the legal defenses to a contract which defense had been pleaded by the defendant hospital.

The record reveals that prior to the actual charge being given, the Court and counsel had a general discussion regarding the possible contents of the proposed charge. The attorney for Dr. Pallas requested the Trial Court to charge the essential elements of a contract to which the Trial Judge responded “Request denied. I’ve told you what I am going to charge. Now you can make your requests at the end.” At this point counsel for the defendant hospital stated:

“Before we go on, I want for in behalf of Woman’s Hospital, and I’d like to have this on the record at this time, since you have advised us of your charge—that we do object on behalf of defendant Woman’s Hospital to any charge on any grounds sounding in contract.” Emphasis ours.

In view of the foregoing we find it difficult to reason why counsel should not be permitted to cry “error” for the Trial Court’s alleged failure to charge “the legal defenses” to contract. The reasoning is made even more difficult when the record shows that the defendant hospital did not request in writing, or for that matter orally, any special instruction on the subject of contract, although given ample opportunity.

Therefore we hold the defendant hospital may not now be entitled to complain of the alleged meagerness of the Court’s charge on the “legal defenses” to a contract. However, we have carefully read the Court’s charge and we believe it sufficiently instructs the jury as to what must be found as fact by them before there can be liability on the defendant’s part on the contract theory.

The seventh Assignment of Error is overruled.

The eighth Assignment of Error faults the Trial Court for charging both the contract theory and outrageous conduct theory of liability. The argument presented with this Assignment of Error is just a reargument of the argument submitted with the fourth Assignment of Error which has been heretofore overruled. Accordingly, the eighth Assignment of Error is overruled.

The ninth Assignment of Error alleges error on the part of the Trial Judge in failing to grant five special requests of the defendant hospital. We find no argument in the brief regarding the first special request. Therefore we will not consider same. It is argued that Special Request No. 2 should have been given as it is believed that it better defines outrageous conduct than does the general charge of the Court. We do not concur in counsel for appellant’s belief. Primarily, because we view Special Request No. 2 as erroneous.

Special Request No. 2 in part contains this verbiage.

“I have previously charged you upon the liability of a defendant for negligence. [This the Trial Court had not done.] Outrageous conduct is not merely negligence on the part of the defendant, but it must go beyond negligence.”

In this case, in so far as outrageous conduct is concerned, the subject of negligence has no place. Negligence is characterized by inadvertence. A negligent or inadvertent act will not give rise to a claim of outrageous conduct. See Medlin v. Allied Investment Co., supra. It has never been contended that the hospital inadvertently displayed the baby in a jar of formaldehyde to Mrs. Johnson. It is admitted in the proof that the display was exactly what was intended. The question then arises whether or not that intentional display under all the circumstances amounted to outrageous conduct as that tort is defined in the Medlin case.

The balance of Special Request No. 2 contains various statements of what outrageous conduct is not. The Trial Judge used the language of the Medlin case, supra, in positively defining the elements of the tort of outrageous conduct. He was not required to attempt to negatively charge the matter and committed no error in refusing to charge Special Request No. 2.

The gravamen of Special Request No. 3 was adequately contained in the general charge and there is no proof to sustain a charge of Special Request No. 4. The fourth special request was a request to charge the jury that there is no State law, rule, or regulation that requires a fetus to be buried or prohibits the disposition of a premature fetus as a surgical specimen. Whether or not there is any such State law, rule, or regulation and under what circumstances they apply if they do exist we do not know, except by statement of counsel in his brief which will not suffice. No competent proof was adduced at the trial to the effect that no State law, rule, or regulation (which statement covers a world of printed material) requires a fetus to be buried or prohibits the disposition of a premature fetus as a surgical specimen.

Special Request # 5 is the definition of reckless conduct as found in § 500 Restatement of the Law 2d, Torts and such request was refused by the Trial Judge with the notation that such charge was contained in the general charge.

One is subject to tort liability for severe emotional distress when he engages in outrageous conduct, which conduct intentionally or recklessly causes such severe emotional distress. Medlin v. Allied Investment Co., supra. This was charged to the jury. In describing the tort of outrageous conduct to the jury, the Court stated that in order to be outrageous, such conduct must have been

“ — so extreme in degree as to go beyond all bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.
“Liability clearly does not extend to mere insults, indignities, threats, annoy-anees, petty oppression, or other trivialities. Rather, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim outrageous.”

By their verdict, the jury found the conduct complained of to be of such extreme degree as charged by the Court. A finding of such described conduct is a finding of the factual elements necessary for finding of reckless conduct as defined in Restatement. While we are of the opinion that Special Request # 5 was proper, we think that its essence was included in that part of the general charge above set out and we do not find reversible error in the failure to give such special request.

Accordingly, the ninth Assignment of Error is overruled.

The tenth, eleventh and third Assignments of Error of the defendant hospital are all to the effect that there is no evidence to support a verdict. We will now consider those Assignments of Error along with the corresponding Assignments of Error of Dr. Pallas.

Consideration of these Assignments of Error requires that we review the proof in the light most favorable to the plaintiffs and draw all reasonable conclusions therefrom in plaintiffs’ favor. Sullivan v. Morrow (1973 Tenn.App.M.S.) 504 S.W.2d 767.

Such review would warrant the following facts.

Because of difficulties encountered in carrying her child to term, Mrs. Johnson was placed in the Woman’s Hospital under the direction of her physician, Dr. Pallas for observation and treatment. While so confined she delivered a six and a half month old infant which expired sometime within an hour or so after its birth. After the death of the infant, the hospital floor nurse, a Mrs. Howell, inquired of Dr. Pallas what should now be done. Dr. Pallas advised Mrs. Howell that the disposal of the infant body was a matter for determination by the Johnsons and for Mrs. Howell to so advise the Johnsons that the disposal could be handled either by the hospital or burial by the Johnsons. Mrs. Howell did not relay this information to the Johnsons but simply told Mr. Johnson for neither he nor his wife to worry about the matter as the hospital would properly take care of everything.

Mrs. Johnson was upset by the loss of the child as she strongly wanted a little boy which was the sex of the deceased infant. The hospital had permitted her to see the body of her infant shortly after it died and the infant was perfectly formed. Mr. Johnson thought his wife disturbed enough over the death of the infant and accepted the offer of the hospital to properly handle the final disposition of the body by taking care of everything. Mrs. Johnson was discharged from the hospital with instructions to visit Dr. Pallas in six weeks.

Mrs. Howell then took the infant’s body and placed it in a jar of formaldehyde and forwarded same to the pathology laboratory for disposition as a surgical specimen.

The pathology laboratory returned the body in the jar of formaldehyde to the hospital with the notation that because of the size and age of the fetus it could not be disposed of as a surgical specimen. The pathologist report was attached to the medical chart of Mrs. Johnson.

Mrs. Johnson returned to see Dr. Pallas at the end of six weeks. It is the policy of Dr. Pallas’ office that patients waiting to see Dr. Pallas for their six weeks checkup be given their medical chart for delivery to the Doctor when called in his examination office. While awaiting her turn to see the Doctor Mrs. Johnson noticed the pathologist’s report which stated the body could not be disposed of as a surgical specimen. Mrs. Johnson did not know the meaning of the notation as she thought the hospital had buried or decently disposed of the infant’s body. She made inquiries of the nurse of the meaning of the notation and was referred to Dr. Pallas for an answer. Dr. Pallas advised Mrs. Johnson to see Mrs. Chaney at the hospital about the matter and instructed his nurse to accompany her there.

At this point Mrs. Johnson knew nothing of the condition of the infant body, its whereabouts, or its manner of preservation. Upon seeing Mrs. Johnson, Mrs. Chaney exclaimed that she had been looking for her and that she had her infant’s body and that it had been preserved. Mrs. Chaney then took Mrs. Johnson, accompanied by Mrs. Baker, the nurse of Dr. Pallas, back to a refrigerator, opened the door, took out the jar of formaldehyde containing the floating, shrivelled body of her infant and handed it to Mrs. Johnson. Subsequent to this occurrence Mrs. Johnson suffered from nightmares, insomnia, and depression when around children. In addition, Mrs. Johnson suffered from pseudo-pregnancy which caused pelvic pain and nausea. As a result exploratory surgery was done and eventually psychiatric treatment was administered and will have to be continued for an indefinite period.

Prom the foregoing account of events given in the light most favorable to the plaintiff, we hold there is evidence from which a jury could find that the defendant hospital agreed to properly handle the infant’s body and that the defendant hospital failed to do so and in fact mishandled the body. In other words, there is proof that could warrant a recovery against the hospital based on the contract theory. The failure to perform a contract to properly handle a dead body is actionable in this State. See and compare Taylor v. Bearden (1915) 6 Tenn.Civ.App. 33; Phillips v. Newport (1945 M.S.) 28 Tenn.App. 187, 187 S.W.2d 965.

As to the outrageous conduct theory we hold that there is evidence from which a jury could find that the conduct of the defendant hospital in displaying the infant in the manner and under circumstances described was outrageous conduct as defined by our Supreme Court in the Med-lin case, supra, and that such conduct recklessly caused severe emotional distress to plaintiff Mrs. Johnson. We are of the opinion that a recitation of the foregoing facts could be considered to cause the exclamation of “outrage!” from the general community.

Therefore Assignments of Error of the defendant hospital are overruled.

We are unable to discover any proof from which it could be said that Dr. Pallas ever agreed to do anything in regard to the disposition of the infant body,or that the plaintiffs expected Dr. Pallas to in any manner dispose of the remains. All the plaintiffs’ proof on the contract theory is that a contract for burial was entered into between the plaintiffs and the hospital.

It is true that Mrs. Johnson and Dr. Pallas were contractually related in so far as the doctor-patient relationship is concerned. However, proof of such relationship is not proof of a contractual relationship to dispose of a dead body. A doctor does not become a mortician except by special contract. Counsel for appellee argues that Dr. Pallas in some manner became a party to the contract when nurse Howell asked him what to do after the death of the infant. In effect all the doctor told Mrs. Howell to do was to talk to the plaintiffs and find out what they wanted to do. Nurse Howell was not the agent of Dr. Pallas at this point. She was acting for the hospital. The hospital had a dead body on its hands and was obligated to do with it whatever the next of kin wished. Again, the doctor was under no duty to dispose of the body and there is no proof that he ever assumed such duty.

Neither the doctor nor his nurse, Mrs. Baker, displayed the infant in the jar to Mrs. Johnson. The display of the infant is the gravamen of the outrageous conduct theory of the case. There is no proof in this record that either Dr. Pallas or nurse Baker knew of the condition of the body of the infant. As far as we are able to ascertain only three people knew, before the display, that the baby was floating in a jar of formaldehyde viz.: Mrs. Howell who placed it in the container, the pathologist who re-. ceived it (and his report does not state the condition of the body or its manner of preservation) and Mrs. Chaney who received it from the pathologist. The plaintiffs’ proof shows that Dr. Pallas instructed her to see Mrs. Chaney and that Mrs. Baker went with her to see Mrs. Chaney. There is no proof from which it can be said that Mrs. Baker, who was the agent of Dr. Pallas, intended to display the body in such manner to Mrs. Johnson. The proof is that the three of them went to the refrigerator, Mrs. Chaney opened it and gave the jar and baby to Mrs. Johnson. As we observed in our treatment of the hospital’s ninth Assignment of Error, if an act be negligently done, as opposed to intentional, there can be no tort of outrageous conduct. The defendant hospital intended to display the infant in a bottle of formaldehyde to the plaintiff. There is no proof that such was the intent of either Dr. Pallas or his nurse.

We therefore hold that there is no proof from which it can lawfully be said that Dr. Pallas or his nurse are guilty of the tort of outrageous conduct. There is no proof from which it can be concluded that their intent was to do the act complained of or for that matter that either of them knew it was going to happen.

The result is that we are of the opinion that the Trial Judge should have directed a verdict for the defendant Pallas on both theories at the close of all of the proof and that Assignment of Error is sustained.

We now return to the appeal of the defendant hospital.

The twelfth and first Assignments of Error are to the effect that punitive damages are not permissible in this type of case and the verdict is excessive.

In answering these Assignments of Error it should be borne in mind that we actually have two types of cases at hand. One in contract and one in tort.

Under the contract theory of the case punitive damages are not allowable and the Court so charged the jury. The general rule is that punitive damages are not recoverable in a contract action and neither are damages for mental anguish, since it is not in tort and there is no physical injury. See Corbin on Contracts, §§ 1076, 1977. However, Tennessee has long permitted the recovery of substantial damages for mental suffering alone in the breach of a contract to bury or embalm a body. See Taylor v. Bearden, supra. The older Tennessee cases simply held that in such contracts, the natural and expected results of a breach are emotional disturbances. Therefore, based on the rule that such damages were reasonably expected by the parties, damages arising out of contract for emotional disturbances were approved even though the action was in contract and there was no physical injury. See Telegraph Co. v. Potts (1907) 120 Tenn. 37, 113 S.W. 789; Taylor v. Bearden, supra. Some of our sister states (see Annotation 48 A.L.R.3d 261) and some later Tennessee cases, (see Hill v. Travelers Ins. Co. (1926) 154 Tenn. 295, 294 S.W. 1097; Dutto v. Cemetery (1917) 8 Tenn.Civ.App.120) have attempted to get around the general rule of no recovery for emotional disturbances by such legal fictions as the trespass of the property rights of the next of kin in the body of the deceased. These fictions are likely to deceive no one but a lawyer. The old reason, that is, damages naturally expected by the parties, is the logical, understandable and just reason for allowing the exception in these exceptional eases.

In this case the Trial Judge properly charged the jury that they could only award compensatory damages for the mental anguish suffered for the mishandling of the dead body. We will later discuss the amount of the award.

In the charge on outrageous conduct, the Trial Judge advised the jury that punitive damages could be awarded on the tort theory of the case. We hold his honor was correct. Our brother Judges in the State of Illinois have held to the contrary. See Knierim v. Izzo, 22 Ill.2d 73, 174 N.E.2d 157. The Illinois Court stated:

“Since the outrageous quality of the defendant’s conduct forms the basis of the action, the rendition of compensatory damages will be sufficiently punitive.”

While we respect the opinion of the Illinois Court we do not agree with the logic of its reasoning. Compensatory damages are just that. Such damages. compensate for actual loss. They should contain no element of “smart” money. Mental anguish is a suffering just as the pain associated with a broken arm is a suffering. In a proper case for punitive damages, where the physical injury was a broken arm and a jury awarded compensatory damages for the pain and suffering associated with the broken arm, as well as punitive damages; we do not believe a Court would be warranted in disallowing punitive damages on the theory that the compensatory award for pain and suffering is sufficiently punitive. To do so eliminates the concept of punitive damages.

It would seem to us that the Illinois Court has mistakenly equated mental anguish and suffering with punitive damages. The two are not the same no more than physical suffering and punitive damages are the same.

Neither, in our opinion, is the fact that “the outrageous quality of the defendant’s conduct forms the basis of the action” any legal reason for disallowing punitive damages. In the ordinary punitive damages case, the willful and wanton conduct of the defendant forms the basis of the punitive damages action, but that is certainly no reason to refuse to allow punitive damages. It constitutes the reason why such punitive damages are allowable.

In short, we simply are unable to conceive of any logical reason why punitive damages are allowable in cases of willful and wanton conduct but would not be allowable in cases of outrageous conduct which to us is a higher degree of misconduct than the former.

We therefore hold that the tort of outrageous conduct is one in which punitive damages may be allowed and in this case the Trial Judge committed no error in submitting that issue to the jury.

Moving on to the alleged excessiveness of the verdict; the verdict as approved by the Trial Court for compensatory damages in both the contract and tort claims of Mrs. Johnson is in the amount of $100,000. The jury’s award for compensatory damages does not distinguish between the tort and contract cases. The award is for compensatory damages in both with no separate amounts for either.

As we have before shown, Mrs. Johnson was entitled to compensatory damages in both, i. e., damages for the mental suffering resulting from the breach of the burial contract and damages for the mental suffering resulting from the outrageous conduct (display of the body). The defendant hospital could have been liable for the mental suffering caused by the breach of the burial contract even if there had been no display or outrageous conduct and conversely. So, in effect, we have two sufferings which are compensable. True, they somewhat overlap but without knowing what amount was awarded for what we are unable to say the total compensatory damages are excessive. There is proof in the record to the effect that Mrs. Johnson’s mental damage is most probably permanent and will require psychiatric treatment for a considerable period of time. She is unable to see or meet children of tender years without becoming emotionally upset.

We therefore concur in the Trial Judge’s action approving the award of compensatory damages to Mrs. Johnson in the amount of $100,000 and do not find the verdict so excessive as to shock the conscience of the Court. The Trial Judge and the jury below are best equipped to ascertain or place a value on the personal injury of mental suffering. See and compare Transports, Inc. v. Perry (1967) 220 Tenn. 57, 414 S.W.2d 1; Holt v. McCann (1968 E.S.) 58 Tenn.App. 248, 429 S.W.2d 441.

Without prolonging more than necessary this already lengthy Opinion, we simply state that on the matter of the alleged excessiveness of the verdict for punitive damages of Mrs. Johnson and the verdict for Mr. Johnson for compensatory damages, it is our opinion that under the circumstances of the case the verdicts as adjusted by the Trial Judge are not so excessive as to shock the conscience of the Court nor do we believe the Trial Judge erred in granting the remittiturs that he did. See authorities cited in previous paragraph.

Our holding in the previous paragraphs not only overrules the hospital’s Assignment of Error No. 1, but also will overrule the Assignment of Error of the plaintiffs which is directed to the action of the Trial Court in granting the remittiturs.

The hospital’s 13th, 14th, and 15th Assignments of Error remain to be considered.

The 13th and 14th charge the Trial Court with error in failing to grant a mistrial because of the alleged misconduct of plaintiffs’ counsel in repeatedly asking objectionable questions which objections were sustained by the Court and in stating to defense counsel in the presence of the jury: “You object to everything.”

The record shows that plaintiffs’ counsel was attempting to have certain testimony heard by the jury. He first asked the question in one manner, which was objected to and sustained. He then tried several re-phrasings of the question in order to produce an unobjectionable question. Each rephrasing was objected to and sustained. It was simply a legitimate attempt to introduce evidence in a manner which counsel thought was admissible. The evidence sought to be introduced was later introduced by another witness. No harm was done and a mistrial should not have been granted.

During a hot cross-examination of the hospital’s witness, the hospital interposed numerous valid objections. When another objection was made, counsel for plaintiffs in evident exasperation exclaimed, “You object to everything.” The Trial Judge admonished the jury to disregard counsel’s remark. If mistrials were granted on what appears to us to be such a triviality, a hotly contested trial could never be concluded! See Crowe v. Provost (1963 M.S.) 52 Tenn.App. 397, 374 S.W.2d 645.

The 13th and 14th Assignments of Error are overruled.

The 15th Assignment of Error is the Trial Court erred in failing to grant a new trial based on newly discovered evidence. This newly discovered evidence consists of the affidavits of Mrs. Minnie Perkinson and Mrs. Sandra Perkinson. These affidavits state both affiants knew the Johnsons prior to the occasion of this suit. Mrs. Minnie Perkinson was visiting her daughter-in-law who was confined in the Woman’s Hospital in a room across the hall from the delivery room. On the day of Mrs. Johnson’s delivery Mrs. Minnie Perkinson was in the hall talking to Mr. Johnson and overheard the conversation between Mr. Johnson and Mrs. Howell, the hospital nurse. The affidavit of Mrs. Minnie Perkinson is a contradiction of Mr. Johnson’s testimony regarding his conversation with Mrs. Howell concerning the burial or disposal of the body. The affidavit of Mrs. Sandra Perkinson (daughter-in-law) contradicts the testimony of Mrs. Johnson regarding her knowledge of the manner of disposal by the hospital.

We quote from Vest v. Bitner (1950 E.S.) 34 Tenn.App. 575, 241 S.W.2d 438 at page 442:

“Under our decisions, a new trial will not be granted because of newly discovered evidence which is merely cumulative. Noel v. McCrory, 47 Tenn. 623; Tabler v. Connor, 60 Tenn. 195; Mercer v. Ewing, 6 Higgins Tenn.Civ.App. 384. Cumulative evidence is evidence which speaks to facts in relation to which there was evidence on the trial. McGavock v. Brown, 23 Tenn. 251. Moreover, newly discovered evidence merely to contradict a witness is not sufficient to warrant a new trial. Shelton v. Southern Ry. Co., D.C., 255 F. 182; McAlister’s Lessee v. Williams, 1 Tenn. 119; Gentry v. State, 184 Tenn. 299, 198 S.W.2d 643, 648. In Gentry v. State, supra, our Supreme Court adopted the rule stated in 39 Am.Jur. as follows: ‘It is well settled that a new trial will not be granted upon the ground of newly discovered evidence where it appears that such new evidence can have no other effect than to discredit the testimony of a witness at the original trial, contradict a witness’s statements, or impeach a witness, unless the testimony of the witness who is sought to be impeached was so important to the issue, and the evidence impeaching the witness so strong and convincing, that a different result must necessarily follow.’”

The “newly discovered evidence” is cumulative and is for the purpose of discrediting the testimony of a witness. After having read the affidavits we cannot say that the contents thereof are so strong and convincing, that a different result must necessarily follow.

The granting of a new trial on the issue of newly discovered evidence is a matter within the sound discretion of the Trial Court. Brown v. University Nursing Home, Inc. (1972 Tenn.App.M.S.) 496 S.W.2d 503; Zirkle v. Stegall (1931) 163 Tenn. 323, 43 S.W.2d 192. We cannot say the Trial Judge abused his discretion and the final Assignment of Error is overruled.

The result is that the judgment is affirmed as to the defendant hospital only.

The judgment against Dr. Pallas is reversed and as to him the suit is dismissed.

Costs of appeal are adjudged against the defendant hospital and surety.

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


author: MATHERNE, Judge.

text:
    Millard KESTERSON, Jr., Appellant, v. Jim McKEE, County Judge of Henry County, Tennessee, et al., Appellees.
    Court of Appeals of Tennessee, Western Section.
    June 6, 1975.
    Certiorari Denied by Supreme Court Sept. 8, 1975.

      Hugh K. McLean, Paris, for appellant.
    Robert F. Swayne, Paris, for appellees.
   MATHERNE, Judge.

The appellant Millard Kesterson, Jr., the General Sessions Judge of Henry County, Tennessee, challenges the constitutionality of Chapter 296 of the Private Acts of 1974 which divested the county judge of Henry County, Tennessee, of juvenile jurisdiction and vested that jurisdiction in the Court of General Sessions of Henry County, Tennessee.

The Chancellor held the Private Act valid in all respects, and duly adopted by the County Court of Henry County, Tennessee, as required by Article 11, Section 9 of the Constitution of Tennessee.

The plaintiff on appeal raises several constitutional questions, but we deem Assignment of Error II to be determinative of this appeal. And, we note this assignment goes to the only fact issue in the lawsuit, and deals with the only question which gives this Court jurisdiction under the provisions of T.C.A. § 16-408.

Assignment of Error II is as follows:

“The Chancellor erred in holding that the action of the Henry County Quarterly Court in ratifying said Act was effective and that there were a sufficient number of “aye” votes to constitute the required two-thirds (⅜) majority for ratification.”

In accordance with Article 11, Section 9 of the Constitution of Tennessee, the legislature required a two-thirds vote of the Quarterly County Court of Henry County before Chapter 296 of the Private Acts of 1974 would be effective. That constitutional provision provides that all local acts—

“shall be void and no effect unless the act by its terms either requires the approval by a two-thirds vote of the local legislative body of the municipality or county, or . .

The minutes of the Quarterly County Court of Henry County at its regular meeting on June 17, 1974, establishes that the issue of ratifying Chapter 296 was duly presented to that body, and the vote was 13 “yes”; 1 “no”; 2 “passed”; and 2 “absent.” It is stipulated the authorized membership of the Quarterly County Court of Henry County is 18 members.

It is stipulated that the one “no” vote (Thomas Kesterson) had removed himself from his district prior to the above vote and his vote was invalid. It is also stipulated one “yes” vote (M. M. Callicott) had removed himself from his district prior to the vote and his vote was invalid. The Chancellor found another “yes” vote (John Steele) had removed himself from his district prior to the above vote and his vote was invalid. That decision is not appealed from and is treated as final.

As result we find the total legitimate vote was 11 “yes”; 2 “passed”; and 2 “absent.”

Under the facts, the issue is whether the 11 “yes” votes constitutes “approval by a two-thirds vote of the local legislative body” as required by Article 11, Section 9 of the Constitution.

The appellees insist the 11 votes constitutes two-thirds of the present 15 member body of the Quarterly Court, and therefore constitutes a ratification. The appellant argues the constitutional requirement is a two-thirds vote of the authorized membership of 18, and therefore Chapter 296 was not approved.

In State ex rel. Doyle v. Torrence (1958), 203 Tenn. 175, 310 S.W.2d 425, the Court held the language of Article 11, Section 9 now under consideration, requires a two-thirds vote of the total membership of the local legislative body, and does not permit an approval by a two-thirds vote of those present or a two-thirds vote of those voting.

The case at bar requires the additional determination of whether the “total membership” referred in State ex rel. Doyle means the total effective membership at the time of the particular vote, or does it mean the total authorized membership.

Looking again to the reasoning and verbiage in State ex rel. Doyle, supra, in the light of the facts there presented, we conclude the constitutional requirement is a two-thirds vote of the authorized membership of the local legislative body.

It matters not that certain members of the local legislative body may have resigned, died, moved from their district, or committed any other act which resulted in a total effective membership of less than the authorized membership. The clear constitutional mandate as recognized in State ex rel. Doyle, supra, requires an affirmative vote of two-thirds of the authorized membership of the local legislative body.

It results Chapter 296 of the Private Acts of 1974 was not approved by the Quarterly County Court of Henry County, and no person or official may perform thereunder. This holding renders moot all other questions raised on appeal.

The decree of the Chancellor is reversed and this lawsuit is dismissed. The costs in the trial court and in this Court are adjudged against the defendants-appellees.

The Honorable Charles 0. McPherson, by appointment of the Chief Justice of the Supreme Court of Tennessee, sat on this lawsuit in the place of Judge Charles E. Nearn.

CARNEY, P. J., and McPHERSON, Special Judge (concur).

      . For authority that these votes were invalid see and compare: Whitehead v. Clark (1922) 146 Tenn. 660, 244 S.W. 479; Bailey v. Greer (Tenn.App.1971) 468 S.W.2d 327.


author: WALKER, Presiding Judge.

text:
    Jimmy TOSH, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Feb. 13, 1975.
    Certiorari Denied by Supreme Court Aug. 18, 1975.

      H. Morris Denton, Bolivar, for plaintiff - in-error.
    R. A. Ashley, Jr., Atty. Gen., Tom Jennings, Asst. Atty. Gen., Nashville, Will Terry Abernathy, Dist. Atty. Gen., Selmer, Preston Parks, Asst. Dist. Atty. Gen., Somer-ville, Joe C. Davis, Sp. Prosecutor, Lexington, for defendant-in-error.
   OPINION

WALKER, Presiding Judge.

From his conviction of murder in the first degree with life imprisonment, the defendant below, Jimmy Tosh, appeals in error first contending that the trial judge erroneously instructed the jury as to the time when he would be eligible for parole under a life sentence.

The evidence showed that about 1:00 A. M. on August 19, 1973, the defendant and one Dwight Mathis went to the home of Neely E. Allen in Hardeman County for the purpose of robbing him; Mathis knocked on the front door, asking to use the telephone, and when Mr. Allen opened the door the defendant immediately fatally shot him with a 16 gauge shotgun. Allen’s wife and granddaughter were in the house and the defendant and Mathis took about $1500 and fled.

The defendant, after proper warning, voluntarily confessed to the crime. Mrs. Allen positively identified him at the trial. In his testimony at the trial, he admitted his participation but contended he shot Allen because Mathis told him to do so. The jury rejected the defendant’s claim of insanity.

In his instructions, the trial judge charged the jury that under TCA 40-3613 no convict serving a life sentence shall be paroled until he has served for 25 years, less diminution, which would have been allowed for good conduct had his sentence been for 25 years. At the time of the trial, however, Chapter 370 of the Public Acts of 1973 had become effective deleting the 25-year provision, and had modified TCA 40-3613 so that a person serving a life sentence would not become eligible for parole until he had been confined or served a term of not less than 30 full calendar years.

The defendant and the state agree that the jury was erroneously instructed on the parole law. The defendant contends that a reversal and retrial on all issues is required. The state submits the case without recommendation but argues that since the error goes only to punishment and not to guilt or innocence no new trial is needed. It says the court should (1) modify the sentence to the minimum for first degree murder, or (2) fix the sentence at 50 years whereby the defendant would be eligible for parole in 25 years, or (3) remand only for a determination of the amount of punishment.

From the evidence in this case, the defendant’s guilt of first degree murder is fully established as found by the jury and this error goes only to the question of punishment. The defendant is not entitled to have the judgment of conviction reversed. Under the authority of Hunter v. State, Tenn., 496 S.W.2d 900, the case will be remanded only for a redetermination of punishment.

The defendant also complains that in his instructions the trial judge did not define “willfully,” “maliciously,” “deliberately” and “premeditatedly.” These were elements set forth in the indictment drawn in common law form. The defendant says the indictment does not properly charge felony murder and that this can be done only by two methods: (a) in the same count in the alternative as permitted by TCA 40-1806 or (b) in separate counts of the same indictment. Since neither method was used, he argues that it was'reversible error for the court not to define these terms.

The court defined malice aforethought in the instructions.

In Sullivan v. State, 173 Tenn. 475, 121 S.W.2d 535, the defendant was indicted for murder in the common law form without charging that the homicide was committed in an attempt to commit one of the enumerated felonies. The court held that it was not necessary to charge in an indictment for murder that it was committed in the perpetration of another crime in order to introduce proof showing that a felony was attempted in committing it; it is sufficient to charge murder in the common form, and then upon proof of its commission in the perpetration of a felony, malice, deliberation and premeditation are implied. Since the evidence clearly showed that the homicide was committed in the perpetration of a robbery, the court did not err in failing to define willfulness, deliberateness, and premeditation. Under the facts shown here, it was not necessary for the state to prove these elements; therefore it was not required that they be defined in the instructions. This assignment is overruled.

Since it was not necessary for the trial judge to define these terms, he did not err in instructing the jury that if it found the defendant killed Mr. Allen in the perpetration of a robbery, and that at the time he knew right from wrong, he would be guilty of murder in the first degree. This assignment is likewise overruled.

This case is remanded for a redetermination of punishment.

MITCHELL, J., and HARWELL, Special Judge, concur.


author: GALBREATH, Judge.

text:
    Robert Lee BATEY, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    March 19, 1975.
    Certiorari Denied by Supreme Court Aug. 11, 1975.

      Robert T. McGowan, Asst. Public Defender, Nashville, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., Nashville, Harold B. McDonough, Asst. Dist. Atty. Gen., Nashville, for defendant in error.
   GALBREATH, Judge.

OPINION

Appealing from his conviction in the Davidson County Criminal Court for armed robbery and the minimum sentence of ten years imposed by the jury, the plaintiff in error challenges only the sufficiency of the evidence and the capriciousness of the jury for basing its verdict on it.

The facts adduced were elaborations of a voluntary statement given by the defendant, Robert Lee Batey, to the Nashville Police:

On Thursday, December 20,1973, Larry Griffin and I left my house. I had to go to the hospital. Larry asked me to drop him off at his girl friend’s house and on the way to his girl friend’s house he asked me to stop at Earl’s Cash Market on Fifth Avenue North. Larry stated to me before he went into the store that he should rob the store. I said, “Oh, man.” I told Larry to bring me a pack of cigarettes or something back from the store. Larry got out of the car and went into the store. I pulled in front of a house next to the store. A man was in the house standing in the front of the window watching me. I thought Larry was not going to rob the store. About four or five minutes, Larry walked back to the car, he got in and I drove off. Larry showed me the money that he had taken in the robbery and he gave me forty dollars while we were in the car and before I went to the hospital. We were in Larry Griffin’s green Duster. I took Larry to his girl friend’s house on Her-mose and I went to MeHarry Hospital.

The defendant did not testify.

Not explained to the jury was why the defendant parked the automobile some two car lengths away from the front of the store that his companion robbed and why when the bandit returned and reentered the car the defendant drove it away at such a fast rate of speed that the tires “squealed.”

It is the defendant’s theory that under the whole proof he should have been indicted and convicted of either receiving stolen property or as an accessory after the fact of robbery accomplished with a deadly weapon.

In the interests of truth, it is regrettable that neither party saw fit to call as a witness the defendant’s companion, Larry Griffin, who in all likelihood could have fully explained the defendant’s role in the commission of the crime. The defense introduced from a State’s witness on cross-examination that Griffin admitted his guilt and received ten years for armed robbery a short while before the trial in this cause so Griffin would have been, theoretically at least, an impartial witness with no interest in the outcome of this case. Perhaps neither side wanted to vouch for his credibility and that is understandable. It might have been in the interests of justice for the court to have made Griffin available to both sides as a neutral witness.

In any event, from a thorough review of all the proof, we are not able to say that it preponderates against the jury’s verdict. The jury was entitled to accept that part of the defendant’s proof they felt was consistent with truth and reject the self-serving portion that they believed originated in falsity. Espitia v. State, 199 Tenn. 696, 288 S.W.2d 731.

The defendant is before us under a presumption of guilt. Robertson v. State, 72 Tenn. 425; Harless v. State, 189 Tenn. 419, 225 S.W.2d 258. We are not justified in disturbing a jury’s verdict supported by credible proof and reasonable inferences from that proof. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173. The jury’s verdict not only imposed the minimum sentence but was coupled with a surplusage recommendation that the defendant be paroled so it can hardly be seriously maintained that the jury acted capriciously or vindictively in this case.

The judgment is affirmed.

O’BRIEN and DUNCAN, JJ., concur.


author: DWYER, Judge.

text:
    Jerry DUNCAN, alias, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    April 15, 1975.
    Certiorari Denied by Supreme Court Aug. 18, 1975.
    Jerry Duncan (pro se), Kim Tollison, Legal Aid Clinic, Knoxville, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., Ralph E. Har-well and James L. Jones, Asst. Dist. Attys. Gen., Knoxville, for defendant in error.
   OPINION

DWYER, Judge.

This appeal in the nature of a writ of error has been perfected by court appointed counsel for the indigent, plaintiff-in-error, who contends that his conviction for receiving stolen property over the value of $100, see T.C.A. 39-4217(A), with punishment of confinement for not more than four years, is invalid as being contrary to the law. The plaintiff-in-error was indicted in December, 1970, and shortly thereafter escaped from custody, with his return occurring in or about December, 1973, his trial commencing and concluding on January 22, 23, 1974.

The plaintiff-in-error acted as his own attorney after written waiver of counsel, see T.C.A. 40-2015. The trial court in an abundance of caution appointed counsel and the Legal Aid Clinic of the University of Tennessee to advise with plaintiff-in-error at the trial.

The evidence, from our review, reveals that plaintiff-in-error was arrested during the early morning hours of October 27, 1970, while standing alongside a 1963 Oldsmobile automobile in front of the Holiday Inn West in Knox County.

The arresting officer was responding to a call to proceed to that location to investigate a suspicious person. En route he heard a dispatch, giving the description of a robber who, earlier that morning, had held up the Holiday Inn East in Knox County. When this officer approached he noted that the plaintiff-in-error fit that description and he then observed that the automobile was crammed with merchandise. When plaintiff-in-error was unable to produce registration papers he and the car were taken into custody.

A written search consent form was executed that morning by the plaintiff-in-error. The subsequent inventory of the merchandise in the car revealed, among numerous other articles, a camera and a pair of binoculars which are the basis for the indictment in this record.

The same morning a complaint was registered with the Knoxville Police Department by a Mr. Leroy Brown in which it was reported that his car had been burglarized on the night and early morning hours of October 26 and 27, 1970. He complained that his binoculars, worth $45, and camera, worth $120, had been unlawfully taken from his car. The car had been parked in the Sheraton Inn Camper’s Garage in Knox County.

At the trial, Mr. Brown testified that the camera and the binoculars had been returned to his son by the Knoxville Police Department and then delivered, in turn, to him in Nashville by his son. This testimony was substantiated by that of his son, Richard Brown.

The plaintiff-in-error, testifying in his own behalf, denied having the articles in his possession and specifically denied that the camera and binoculars were in the car at the time of his arrest.

The jury, by its verdict, has resolved this issue of fact adversely to the contention of the plaiiitiff-in-error. He has the burden to show on appeal that the evidence preponderates against his guilt and in favor of his innocence, see McBee v. State, 213 Tenn. 15, 19, 20, 372 S.W.2d 173.

We think that in cases such as this wherein the plaintiff-in-error was in possession of the camera and binoculars shortly after the larceny that such evidence would be sufficient for the jury to infer that he received the property with the requisite guilty knowledge that it was stolen. See Gossett v. State, 224 Tenn. 374, 455 S.W.2d 585, 589; Nunley v. State, Tenn.Cr.App., 479 S.W.2d 836, 838. Hence, We think the evidence supports the verdict.

There have been some assignments of error filed by plaintiff-in-error, attacking the chain of evidence, the ruling of the trial court on the motion to suppress, the cross examination by the attorney general, the admission of the consent search form into evidence, the denial of access to law books for preparation of motions, and the refusal of the court to accept, for filing, motions which had been delivered through the mails upon which there was insufficient postage. We have meticulously and studiously examined all of these unbriefed assignments and find them to be without merit. They are accordingly overruled.

The judgment of the trial court is affirmed.

WALKER, P. J., and GALBREATH, J., concur.


text:
    George Matt ROBINSON, Petitioner, v. STATE of Tennessee, Respondent.
    Court of Criminal Appeals of Tennessee.
    April 25, 1975.
    Certiorari Denied by Supreme Court Aug. 11, 1975.
    Phillip C. Lawrence, Chattanooga, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., Bart Durham, Asst. Atty. Gen., Stanley Lanzo, Asst. Dist. Atty. Gen., Chattanooga, for respondent.
   OPINION

DWYER, Judge.

From the dismissal of his post conviction petition filed under the Post Conviction Procedure Act, see T.C.A. 40-3801 et seq., after an evidentiary hearing, this appeal by court appointed counsel raises the constitutional question of the composition of the jury venire at petitioner’s trial.

The petitioner is incarcerated in the State Penitentiary serving a life sentence for committing the offense of rape for which he was sentenced on June 25, 1932.

The thrusting allegation of his assignments of error, here attacking the dismissal of his petition, may be summarized succinctly in this manner: The venire of the Hamilton County Court system in 1932 was constitutionally unsound in that systematic exclusion of blacks from that venire deprived petitioner of a trial by his peers. This urging is pressed, recognizing the holding in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235, that a plea of guilty forecloses raising this constitutional question. The petitioner contends that his assignment is distinguishable from the holding there, due to the fact that he pled not guilty and was tried by jury. He reasons that, though represented by retained counsel, he had not concurred in any waiver of his right to attack, before his trial, the composition of the venire.

He distinguishes Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216, which affirmed rule 12(b)(2) of the Federal Rules of Criminal Procedure in its requirement that such allegations be raised by pre-trial plea or be waived on the grounds that there is no comparable waiver rule known in Tennessee law.

The state ably counters with the urging that there is a Tennessee Rule of Procedure which requires that a plea in abatement raising the question be timely filed prior to a plea to the merits, see State v. Cole, 28 Tenn. 626; McTigue v. State, 63 Tenn. 313; Young v. State, 3 Tenn.Cr.App. 166, 458 S.W.2d 635, among others, and that in the absence of such plea in abatement the question is foreclosed. The state then reasons that petitioner’s question is foreclosed under the tenets of Davis v. United States, supra, inasmuch as he pled not guilty and had not raised the question by a plea in abatement.

The learned trial court sitting by designation, held (1) that blacks were occasionally found in jury venires at the time of conviction and (2) that no plea in abatement had been filed and that, therefore, the question was waived.

At the evidentiary hearing, proof was adduced through the petitioner’s testimony in which he related that blacks were called at his trial but were excused by challenges.

The nucleus of petitioner’s reasoning appears to be centered on statements put forth by this court in its concurring opinion in State ex rel. Henderson v. Russell, 3 Tenn.Cr.App. 204, 211, 459 S.W.2d 176. These statements subsequently were found to be baseless by the United States Supreme Court, see Tollett v. Henderson, 411 U.S. 258, 276, 93 S.Ct. 1602, 1612, 36 L.Ed.2d 235.

In our view, however and we so hold, petitioner has foreclosed his question by not timely asserting it before his not guilty plea to the merits.

The judgment of the trial court in dismissing the petition is affirmed.

WALKER, P. J., and Duncan, J., concur.


text:
    Harley SELF and N. D. Self, Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    May 8, 1975.
    Certiorari Denied by Supreme Court Aug. 18, 1975.

      Thomas R. Bandy, III, Kingsport, for N. D. Self.
    Lyle Burrow, Bristol, for Harley Self.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Carl K. Kirkpatrick, Dist. Atty. Gen., Blountville, and Frank L. Slaughter, Special Prosecutor, Bristol, for defendant in error.
   OPINION

DWYER, Judge.

From convictions at a consolidated trial for committing the offenses of felonious assault with the intent to commit murder in the first degree, see T.C.A. 39-604, with resulting punishment set at confinement for not less than 6 nor more than 15 years imposed on Harley and N. D. Self, brothers, their appeals have been seasonably perfected with assignments of error being filed.

At the trial level Harley was represented by retained counsel, with the court appointing counsel for N. D. Self. Both have been adjudged by the learned court as indigents for this appeal.

They both have filed assignments of error which include an áttack upon the sufficiency of the evidence.

With this assignment in mind we will narrate the evidence found from our reading of this record.

This assault occurred on the late evening hours of November 28, 1973, on a bridge which crossed Beaver Creek at Galloway Mill in Sullivan County.

Earlier that afternoon the victim, a Roy Herbert Cross, had gone to Barker’s Supermarket in Bristol to cash a cheek when Harley Self, accompanied by a Jerry McCracken, asked Cross to give him a ride to his sister’s. In their traveling about the county they bought the victim, Cross, $2.00 worth of gasoline for his automobile and also purchased a half gallon of wine.

The victim drank some of this wine and later another half gallon of wine was purchased by Harley. The three were ultimately joined by Harley’s brother N. D. They all then proceeded to Beaver Creek ostensibly looking for the children of the sister of the Self brothers. When they got to the creek all four disembarked from the car and started walking on a path alongside the creek. The victim related that McCracken grabbed him by one arm and N. D. by the other and Harley then cut his throat. He broke loose and was pursued by the three onto the bridge where the Selfs grabbed him by the arms. Again his throat was slashed, the second time by McCracken. He was then hung over the side of the bridge. When a motorcycle approached, he was dropped into the creek. He then swam out of the creek and sought aid. The wounds to his neck required 100 sutures.

Another witness, testifying for the state, related he was riding his motorcycle across the bridge that evening and saw four men on it and one was hanging over the bridge.

Harley Self, testifying in his own defense, confirms all the details as outlined except any assault occurring in his presence. His testimony reflects all were drinking and had left the car to drink the other bottle of wine and that Cross had left them. N. D. Self did not testify and offered no proof.

We think the evidence is sufficient to sustain the verdicts. The jury has accredited the testimony of the victim, which we think is supported by the testimony of the motorcyclist. We are not free to reevaluate this testimony, see State v. Grace, Tenn., 493 S.W.2d 474, 476.

To support the charge of assault with the intent to commit murder in the first degree, premeditation is essential. It may be inferred from the circumstances and is a question of fact for the jury, see Cagle v. State, Tenn.Cr.App., 507 S.W.2d 121, 129. We think the jury could and did infer that this was a premeditated assault from these circumstances: (1) the three lured the victim into the isolated area on the pretext of looking for the children; (2) the three, in concert, made a simultaneous assault on the victim, with McCracken and N. D. holding his arms the first time while Harley cut him; and (3) when the victim broke loose the three, in concert, grabbed him, with the Selfs holding his arms while McCracken slashed him the second time. We are satisfied from this evidence if death had ensued that a conviction for murder in the first degree would have been fully supported by the evidence found in this record. The Selfs have the burden here to show that the evidence preponderates against their guilt and in favor of their innocence, see Holt v. State, 210 Tenn. 188, 197, 357 S.W.2d 57. This they have not done. The assignments pertaining to the sufficiency and compatibility of the evidence to the law are accordingly overruled.

They both contend that the trial court erred in overruling their motion for a severance. Harley supports his assertion with an affidavit by which he contends his being tried with his brother resulted in his prejudice. While it may have been to Harley’s best interest to be tried alone, we do not think this is a sufficient showing that the trial court abused its discretion in denying his motion for a severance, see Davis v. State, 1 Tenn.Cr.App. 479, 445 S.W.2d 933, 936. No defense was interposed by N. D. and no prejudice has been shown that the joint trial was to his prejudice. We find no merit in this assignment. It is overruled.

There were photographs shown, over objection, which depict the wounds on the throat of the victim. We think they were probative in depicting and illustrating to the jury the nature and extent of the wounds shortly after the attack. We find no abuse of the trial court’s discretion in their admission. See Briggs v. State, Tenn. Cr.App., 501 S.W.2d 831, 836. These assignments are overruled.

They lastly contend that the argument of the special prosecutor inflamed the jury when he referred to N. D. as an animal who lived in a hut. The trial court promptly sustained an objection to the reference. See Buchanan v. State, 2 Tenn.Cr.App. 398, 454 S.W.2d 178, 182. We find no prejudicial error here. The assignments are overruled.

All assignments of error considered and found to be without merit we affirm the judgment of the trial court. Let it be so ordered.

WALKER, P. J. and DUNCAN, J., concur.


text:
    John Henry SMITH, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    May 13, 1975.
    Certiorari Denied by Supreme Court Aug. 18, 1975.

      James F. Butler, Jackson, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., John R. Lodge, Jr., Asst. Atty. Gen., Nashville, George Hymers, Asst. Dist. Atty. Gen., Jackson, for defendant-in-error.
   OPINION

DWYER, Judge.

This appeal in the nature of a writ of error has been seasonably filed by court appointed counsel from a conviction of plaintiff-in-error by a jury for committing the offense of assault and battery on a female under the age of 12 with the intent to carnally know her. Judgment was pronounced thereon with resulting punishment of confinement for thirty years.

There have been filed assignments of error attacking the sufficiency of the evidence and the trial court’s action in not sustaining plaintiff-in-error’s motion for a mistrial for violation of the witness sequestration rule by state witnesses.

A review of the facts is necessitated in order to determine if this verdict is based on sufficient evidence and is compatible with the law.

This event occurred on the night hours of February 1, 1974, at a duplex residence located on 124 Mobile Street in the City of Jackson.

The duplex was a shotgun style house with front and back door entrances on both sides: The victim, a nine-year-old female, named Jo Ann Serrat, lived in one half of this duplex with her mother and her half brother. The other half was occupied by a Jimmy Jones.

The victim testified that on the night of the event she was in bed and was awakened by the plaintiff-in-error entering her room and asking the whereabouts of her mother. He then got in bed with her and fondled her and licked her private parts and tried to insert his male organ in her.

The brother, on his return home, knocked on the door and jerked it open in time to see a man jump from the bed and flee out of the back of the house. He noticed his sister trying to put on her panties and pants.

When the little victim told him what had happened he started to take her to find their mother. On leaving the house the plaintiff-in-error walked up and the little girl identified him as her assailant. The brother made an assault upon the plaintiff-in-error who then fled, escaping the brother’s fury.

The youngsters then found their mother in the vicinity and when the plaintiff-in-error was identified to her, they went to where he was residing but he would not come to the door. The child was then taken to a hospital where a medical examination was negative for sperm and trauma.

The plaintiff-in-error denied the assault and denied being in the victim’s side of the house that night although he had been in the Jones’ side earlier having a drink of whiskey. He had returned to see Jones again and was at that time assaulted by the brother. He further related that he had had intimate relations with the victim’s mother in her home two weeks before. He did not come to the door of his residence when the mother, brother and victim had knocked because the brother was armed and he was in fear.

We review this evidence under established law that on appeal the plaintiff-in-error has the burden to show that the evidence preponderates against his guilt and in favor of his innocence, see McBee v. State, 213 Tenn. 15, 19, 20, 372 S.W.2d 173. The plaintiff-in-error reasons that the evidence is insufficient because of apparent discrepancies in the child’s testimony as to the identification of him, which he further suggests undermines her credibility. We are not permitted to reverse on the facts unless the evidence clearly preponderates against their verdict. See Cooper v. State, 123 Tenn. 37, 56, 57, 138 S.W. 826. The credibility of the witnesses is a question for the jury who see them face to face, hear them testify and observe their demeanor. They are in a much better position to determine the weight to be given the witnesses’ testimony than are we. See Carroll v. State, 212 Tenn. 464, 472, 370 S.W.2d 523. We are not free to reevaluate that testimony here. See State v. Grace, Tenn., 493 S.W.2d 474, 476. We think the evidence supports the verdict: (1) the brother on entering the house saw a man flee; (2) the little victim identified the plaintiff-in-error as her assailant. The jury has, by its verdict, accredited that evidence. It is true that no trauma or sperm was found in or on the private parts of the little victim. This, however, is not controlling, for penetration is not a necessary element of the offense. The intent of the assault and battery is the gravamen of the crime, see Hale v. State, 198 Tenn. 461, 466, 281 S.W.2d 51. The assignments relating to the evidence are overruled.

The fact that the brother and Jones were in the courtroom after the rule had been called for and that they heard some of the little victim’s testimony was not error prejudicial to the plaintiff-in-error. The propriety of the trial court’s allowing them to testify, in view of the infraction, we do not think was an abuse of his discretion, see Smith v. State, 72 Tenn. 428, 430. We think in view of the above, the trial court properly overruled his motion for a mistrial founded on this infraction. The assignment is overruled.

The judgment of the trial court is affirmed.

WALKER, P. J., and O’BRIEN, J., concur.