author: MATHERNE, Judge.

text:
    Haywood HOOKER, Sr., Individually and as next friend of Eugene Hooker, Appellees, v. Herman ROBINSON and Ira Booker [Cavalier Insurance Corporation, Appellant].
    Court of Appeals of Tennessee, Western Section.
    Feb. 18, 1977.
    Certiorari Denied by Supreme Court June 6, 1977.

      Ed M. Hurley, Memphis, for appellant.
    Timothy R. DiScenza, Memphis, for ap-pellees.
   MATHERNE, Judge.

The issue at bar is whether the uninsured motorist coverage on the automobile of Haywood Hooker, Sr. covered personal injuries received by his son Eugene Hooker as result of a collision between a motorcycle the son was riding and an uninsured automobile.

The trial judge held the uninsured motorist coverage applicable. The insurer appeals, insisting that: (1) the uninsured motorist coverage does not cover injuries received while the insured is riding an owned motorcycle; (2) the coverage does not apply because the owned motorcycle was covered by liability insurance with another company with which uninsured motorist coverage was expressly rejected in writing; and (3) the trial judge erred in disallowing the insurer’s Rule 15.02 motion to alter and amend its answer.

The plaintiff Haywood Hooker, Sr. carried liability and uninsured motorist coverage on his 1966 Pontiac automobile with the defendant Cavalier Insurance Corporation. In 1973, Haywood Hooker, Sr. purchased a Suzuki motorcycle for his son, the plaintiff Eugene Hooker. Liability insurance was effected on the motorcycle with another insurance company, and Haywood Hooker, Sr. expressly rejected, in writing, uninsured motorist coverage under that policy written on the motorcycle.

Thereafter, on June 17,1975, the plaintiff Eugene Hooker, while riding the motorcycle, was involved in a collision with an automobile owned by the defendant Ira Booker and driven by the defendant Herman Robinson, both of whom are allegedly uninsured.

The plaintiffs Hooker sued the two uninsured defendants. Service of process was had on Cavalier under T.C.A. § 56-1153. The plaintiffs filed for default judgment against Booker and Robinson, whereupon Cavalier moved to sever and resolve the issue of liability under its uninsured motorist policy issued to Haywood Hooker, Sr. on the 1966 Pontiac automobile. Severance was granted and both the plaintiffs and Cavalier moved for summary judgment. The trial court dismissed Cavalier’s motion for summary judgment and granted the plaintiffs’ motion for summary judgment. The trial court granted Cavalier a discretionary appeal.

The policy provisions under consideration are included in “Part IV — Family Protection Coverage” which provides in relevant part as follows:

Coverage J — Family Protection (Damages for Bodily Injury). To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury,” sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.
⅜: * * * * *
Definitions. The definitions under Part I, except the definition of “insured,” apply to Part IV, and under Part IV:
(a) the named insured and any relative;
(b) any other person while occupying an insured automobile; and
(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this Part applies sustained by an insured under (a) or (b) above.

Haywood Hooker, Sr. is the named insured; his son, Eugene Hooker, is therefore an insured under Part IV of the policy. The insurer does not rely upon any exception or exclusion in the policy, but insists that Eugene Hooker was not covered under the policy while riding a motorcycle. We hold that Eugene Hooker was covered by the policy because he is a relative of the named insured. It matters not that Eugene Hooker was riding a motorcycle at the time he was injured. If those injuries are the result of his being hit by an uninsured automobile under circumstances resulting in the liability of the uninsured motorist, he is covered by the above quoted provisions of the policy. Wilhite v. Tennessee Farmers Mutual Ins. Company (Tenn.1974) 510 S.W.2d 885.

The insurer has no ground for complaint based on the fact that Haywood Hooker, Sr. purchased liability insurance on the motorcycle with another company and expressly waived, in writing, uninsured motorist coverage under that policy. There was no need for the insured to take out duplicate coverage against uninsured motorists. Under the terms of the policy being considered, as applied to the facts, the presence or absence of uninsured motorist coverage with another company has no bearing whatsoever on the coverage afforded. The existence of such additional insurance would, at the most, have only raised the issue of duplicate coverage. Compare Hill v. Nationwide Mutual Ins. Co. (Tenn.1976) 535 S.W.2d 327.

The insurer claims error wherein the trial court denied its motion under Rule 15.02, Tennessee Rules of Civil Procedure, by which the insurer attempted to amend its pleadings to aver in substance that the express rejection of uninsured motorist coverage under the liability policy taken out on the motorcycle precluded uninsured motorist coverage as written in its policy on the automobile. As noted above, this defense, under the facts, has no bearing on the uninsured motorist coverage afforded under the policy issued to Haywood Hooker, Sr. on his automobile. It matters not whether the trial judge considered this claimed defense because it does not affect the coverage afforded under Cavalier’s policy.

It results that all assignments of error are overruled and the judgment of the trial court is affirmed. This lawsuit is remanded to the Circuit Court sitting in Shelby County, Tennessee, for such further proceedings as the law directs.

CARNEY, P. J. (concurs).

NEARN, J. (concurs).


source: Caselaw Access Project

author: GODDARD, Judge.

license: Public Domain

text:
    STATE of Tennessee, Plaintiff-Appellant, v. Bill S. HODGES and wife Joanna, Defendants-Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    March 11, 1977.
    Certiorari Denied by Supreme Court May 31, 1977.
    Brooks McLemore, Jr., Atty. Gen., Nashville, Earl S. Ailor, Sp. Counsel, Knoxville, for plaintiff-appellant.
    Hailey, Waters, Jarvis & Sykes, Sevier-ville, for defendants-appellees.
   OPINION

GODDARD, Judge.

In this condemnation proceeding the State of Tennessee, Plaintiff-Appellant, appeals a non-jury judgment rendered by the Circuit Court for Sevier County against it in favor of Bill S. Hodges and wife Joanna, Defendants-Appellees. Although there are four assignments of error, only one question is presented: “Were the landowners entitled to be paid the value of their property as enhanced by the improvement made in connection with a prior condemnation proceeding?”

The facts of the case are undisputed. On the 21st day of December 1971, the State filed a petition to condemn some 57 acres of the Defendants’ property in connection with the construction of the interchange of Interstate 40 and State Route 66. The landowners were left with tracts of land located at each quadrant of the interchange. The original plans contemplated the relocation of Dumplin Valley Road, a portion of which was embraced within the 57 acres condemned. Although the record is not clear, we surmise that at least two lanes of Interstate 40 were completed when it was discovered that sufficient land was not acquired to permit a stable slope in connection with the relocation of Dumplin Valley Road, and that it would be necessary to acquire from the Defendants an additional 1.75 acres in the southwest quadrant. To accomplish this purpose the State initiated the present proceedings on the 4th day of March 1974.

Prior to the commencement of this proceeding the Defendants had entered into an option agreement with third parties, whereby 3.9 acres, the remaining acreage owned by the Defendants in this quadrant, would be sold for the sum of $150,000. This option was orally exercised by the optionees, but when they received information that the State would need additional property they withdrew from the transaction and the sale was never consummated.

The Trial Court, in applying the rule of U. S. v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336 (1943), adopted as the Tennessee rule by Layne v. Speight, 529 S.W.2d 209 (Tenn.1975), was of the opinion that under the foregoing state of facts the State was required to pay the Defendants the enhanced value of the property by reason of the construction of the interchange, and rendered judgment in the sum of $110,000 for the land condemned and $50,000 for incidental damages.

Miller, which is relied upon by both parties, involved the construction of Sacramento River Dam which necessitated relocation of some 30 miles of railroad. The Supreme Court of the United States, in finding the landowners were not entitled to enhanced value, laid down the following rule (63 S.Ct. 281):

If a distinct tract is condemned, in whole or in part, other lands in the neighborhood may increase in market value due to the proximity of the public improvement erected on the land taken. Should the Government, at a later date, determine to take these other lands, it must pay their market value as enhanced by this factor of proximity. If, however, the public project from the beginning included the taking of certain tracts but only one of them is taken in the first instance, the owner of the other tracts should not be allowed an increased value for his lands which are ultimately to be taken any more than the owner of the tract first condemned is entitled to be allowed an increased market value because adjacent lands not immediately taken increased in value due to the projected improvement.
The question then is whether the respondents’ lands were probably within the scope of the project from the time the Government was committed to it. If they were not, but were merely adjacent lands, the subsequent enlargement of the project to include them ought not to deprive the respondents of the value added in the meantime by the proximity of the improvement. If, on the other hand, they were, the Government ought not to pay any increase in value arising from the known fact that the lands probably would be condemned. The owners ought not to gain by speculating on probable increase in value due to the Government’s activities.

In Speight, which, as noted, adopted the rule of Miller, the Court was called upon to determine whether a suit seeking condemnation in connection with the improvement of U.S. Highway 72 was within the scope of the Interstate 24 project. The Supreme Court held that the evidence did not preponderate against the trial judge’s findings that the state had failed to carry the burden of proving that the property sought to be condemned was “probably within the scope of the project from the time the Government was committed to it.”

It is undoubtedly true, as insisted by the State, that the width of the roads — Interstate 40, State Route 66 and Dumplin Valley — was not increased and that this proceeding was necessitated by relocating Dumplin Valley Road in accordance with the plans of the original project. It is likewise equally true, as insisted by the Defendants, that the State contemplated acquiring no additional land at the time the first condemnation proceeding was filed.

We should have thought that we would have been able to find at least one case where the factual situation was identical— additional land required because of inadvertence in drawing the original plan; however, our research has proved fruitless. We do believe however that the facts in Cole v. Boston Edison Company, 338 Mass. 661, 157 N.E.2d 209 (1959), most nearly parallel those found in the case at bar. In that case the Commonwealth of Massachusetts had acquired property in connection with a turnpike and subsequently it became necessary for the Boston Edison Company to acquire an easement from the same landowners for the purpose of relocating its power lines. The Supreme Court of Massachusetts adopted the Miller rule and then determined that because the turnpike made it likely that the power lines would have to be relocated the landowner was not entitled to enhanced value even though the second condemnation was by the power company and the first by the Commonwealth.

Additionally, we note that in U. S. v. Reynolds, 397 U.S. 14, 21, 90 S.Ct. 803, 807, 25 L.Ed.2d 12 (1970), which Speight also quotes with approval, the Supreme Court of the United States again addressed the Miller rule, saying:

Finally, the Government asks us to take this occasion to “clarify” the “scope-of-the-project” test. We think the test was stated with admirable clarity by a unanimous Court in Miller: If the “lands were probably within the scope of the project from the time the Government was committed to it,” no enhancement in value attributable to the project is to be considered in awarding compensation. As with any test that deals in probabilities, its application to any particular set of facts requires discriminating judgment. The rule does not require a showing that the land ultimately taken was actually specified in the original plans for the project. It need only be shown that during the course of the planning or original construction it became evident that land so situated would probably be needed for the public use. (Emphasis supplied.)

We accordingly conclude in light of Reynolds and under the particular facts of this case, where the original improvement contemplated relocation of a road which later necessitated acquisition of additional property and where the project had not been fully completed, that the enhanced value of the property because of the improvement may not be considered.

We are not unmindful that the landowners had optioned the property to third parties for a substantial consideration, and that the sale was not consummated because of the State’s action. In this regard we are of the opinion that the landowners are entitled to be reimbursed for reasonable expenses incurred in connection with the proposed sale.

In conclusion, we note that to adopt the rule insisted upon by the landowners would tend to encourage the State, when acquiring property, either to obtain more land than it really felt would be necessary rather than run the risk of having to acquire additional property at an enhanced value or, conversely, if the improvement were a detriment to the surrounding property, to acquire property piecemeal and thereby, in the subsequent proceedings, pay the landowner on the basis of its reduced value.

For all of the foregoing reasons we sustain the assignments of error, remand the case for trial in the Circuit Court for a determination of (1) the value of the property taken and incidental damages, if any, to Defendants’ remaining property as of the 29th day of March 1974, the date of taking, unenhanced by its proximity to the improvement, and (2) the reasonable expenses incurred by Defendants in connection with the aborted sale. The costs of appeal are adjudged to the Defendants.

PARROTT, P. J. (E. S.), and SANDERS, J., concur.


author: TODD, Judge.

text:
    Howard J. COKE, Plaintiff-Appellant, v. UNITED TRANSPORTATION UNION, Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section.
    April 1, 1977.

      W. Gary Blackburn, Ortale, Kelley, Herbert & Crawford, Nashville, for plain tiff-appellant.
    Metzenbaum, Gaines & Stern Co., L.P.A. by Norton N. Newborn, Cleveland, Ohio, Barrett, Brandt & Barrett by George E. Barrett, Nashville, Robert Hart, United Transp. Union, Cleveland, Ohio, for defendant-appellee.
   OPINION

TODD, Judge.

The plaintiff, Howard J. Coke, has appealed from a summary judgment of dismissal of his suit for damages for being deprived of the financial benefits of his union office.

On September 30, 1968, plaintiff was elected by the Brotherhood of Railroad Trainmen a member of the Board of Appeals, Southern Territory, for a period of four years.

On January 1, 1969, the Brotherhood of Railroad Trainmen merged with other unions to form the United Transportation Union, the defendant herein.

The “Unification Agreement” under which said merger took place contained the following provisions:

SECTION 4. (a) The first officers of the United Transportation Union shall be as follows:
Board of Appeals: Yardman/switchmen: The incumbent members of the Board of Directors, Switchmen’s Union of North America, and two (2) members of the Board of Appeals, yardmen if available, Brotherhood of Railroad Trainmen . . . ”
SECTION 6. (a) The purpose of this Section is to provide for the protection of defined officers of the Order of Railway Conductors and Brakemen, Brotherhood of Locomotive Firemen and Enginemen, Brotherhood of Railroad Trainmen and Switchmen’s Union of North America, herein referred to as the organizations and to expedite the changes in the service, facilities and operations involved in the unification of the organizations.
(b) For the purpose of this Section, the term ‘officer’ is defined to mean all Grand Division officers of the Order of Railway Conductors and Brakemen, all Grand Lodge officers of the Brotherhood of Locomotive Firemen and Enginemen and the Brotherhood of Railroad Trainmen .
“ . . . None of the first officers, as identified in Section 4(a) of this Unification Agreement, shall be deprived of employment or placed in a worse position with respect to salary, vacation, health and welfare benefits, or rights and privileges pertaining thereto as a result of the unification. . . . ”
SECTION 12. ... .
“ . . . Any decision, with respect to the interpretation or application of any of the provisions of this Unification Agreement, may be appealed to the Disputes Committee. .
“Appeals must be timely submitted to the General Secretary and Treasurer of the United Transportation Union, with a statement of all relevant facts and circumstances. Copies of the appeal and reply to the appeal must be exchanged by the opposing party or parties.
“The President shall convene the Disputes Committee to consider the appeal within sixty (60) days from receipt thereof and in the event the Committee fails to reach a decision or is unable to reach a decision within ten (10) days from the date the Committee completes hearing on the appeal, the neutral referee shall sit with the Committee and render a decision. Decision of the Committee shall be final and binding on the parties.
“The parties involved in a dispute shall be notified when the appeal is to be heard and they may appear before the Committee and present oral testimony and evidence in support of their position provided notice of such intention is given.”

Thereafter, plaintiff was assigned by the president of the new union to the Board of Appeals, Yardmen/switchmen, which decided disputes different from those decided by the Board of Appeals of the former Brotherhood of Railroad Trainmen, and said new Board received fewer disputes to decide, hence was in session fewer days and plaintiff therefore received less compensation than he had received as a member of the former board.

Plaintiff requested assignment to the former board, but was refused.

On October 29, 1971, plaintiff filed a claim with the union president for $68,-000.00 in lost pay and benefits.

On December 1, 1971, plaintiff’s claim was declined by the president.

On January 15, 1972, plaintiff filed with the secretary-treasurer of the union an appeal to the “Disputes Committee” provided by the unification agreement and the constitution of the new union.

Thereafter, the president of the union declined to call the “Disputes Committee” into session to hear the appeal.

On June 8, 1975, plaintiff filed this suit against the union demanding judgment of $100,000.00.

As stated, the Chancellor entered á summary judgment of dismissal from which plaintiff has appealed.

The memorandum opinion of the Chancellor states:

“Where remedies are exhausted, the Court may intervene with internal procedures if the union’s own procedures have not been followed or the union and its officers act in an otherwise arbitrary, oppressive or unlawful manner.
“There is not in the record a showing of arbitrary, capricious, oppressive or illegal action by the union either in the appointment of plaintiff to the ‘YIS’ Board or in refusing to hear the claim. The evidence indicates some political favoritism was in play in the union, and, apparently, plaintiff fell from favor. However, the actions of defendant’s president were based on sound reasoning and considerations of the union’s best interest. The refusal by the General Secretary to refer the Appeal to the Dispute Board is the crucial issue in dispute; the refusal was based on defendant’s interpretation of Section 12 of the Unification Agreement and its requirement for timely filing.
“The Court has jurisdiction if the defendant failed to comply with its own regulations and procedures even absent arbitrary action by the defendant denying access to the Dispute Board. However, in cases parallel to the instant case, the Ohio Courts have relied upon the interpretation of the union’s regulations by the union’s officers absent a showing the interpretation was prompted by fraudulent, arbitrary, oppressive intent or bad faith. .
“Under Ohio law, the Court is bound by the union’s interpretations of its constitution, regulations and by-laws absent a showing that the interpretation is arbitrary, capricious, oppressive, illegal or in bad faith. The interpretation of Section 12 of the Unification Agreement to require timely filing with the dispute Board is not on its face arbitrary. The evidence does not show the union’s interpretation is prompted by prohibited motivations. It is not arbitrary, capricious, oppressive or illegal; it is binding on the parties.
“The Court can guarantee to plaintiff only compliance by the union with its own rules and regulations. As interprett ed in good faith by the union, plaintiff forfeited his appeal to the Dispute Board by untimely filing of a claim. Applying Ohio law, the Court cannot intervene in the internal dispute absent a showing of arbitrary, capricious, oppressive action by the union.”

In International Union of Steam and Operating Engineers v. Owens, (1928), 119 Ohio 94, 162 N.E. 386, the union denied a transfer card to plaintiff, whereby he was deprived of access to employment. The Ohio Court held that plaintiff had been accorded due access to all of the tribunals of the union, that the decisions of such tribunals were reasonably within the provisions of the union charter and by-laws, hence plaintiff was without judicial remedy. However, the Ohio Court said:

“If no hearing has been accorded to Owen, he is entitled to have it, but the courts do not guarantee more than that.” 162 N.E. 384 at page 388.

As stated in the Chancellor’s opinion, the courts may intervene where the union’s own procedures have not been followed or the union and/or its officers act in an otherwise arbitrary, oppressive or unlawful manner. In Hennekes v. Maupin (1963), 119 Ohio App. 9, 192 N.E.2d 204, and Boblitt et a 1. v. Cleveland, Cincinnati and St. L. Ry. Co. (1943), 73 Ohio App. 339, 56 N.E.2d 348, the defendants-unions were dismissed, but the Ohio Court recognized the principle just stated.

The same principle is also recognized in the Tennessee cases of Tennessee Secondary School Athletic Association v. Cox, 221 Tenn. 164, 425 S.W.2d 597 (1967), and Murray v. Supreme Hive L.O.T.M., 112 Tenn. 664, 80 S.W. 827 (1904).

The Chancellor held, supra, that the General Secretary of the union acted reasonably within the constitution and by-laws of the union in refusing to refer plaintiff’s appeal to the Appeal and Dispute Board.

The Chancellor was of the opinion that the General Secretary and Treasurer was empowered to interpret the word “timely” and to refuse access to the Disputes Committee in respect to any appeal which he, in his sole judgment, considered untimely.

This Court respectfully disagrees with the Chancellor’s position just stated.

The clear intent of Section 12 was to assure members of the various unions being abolished by merger that they would have access to a Disputes Committee to correct erroneous rulings of the officers of the new union. When plaintiff’s claim for compensation was denied by the president, the Unification Agreement guaranteed plaintiff the unquestioned right of appeal to the Disputes Committee. When his right of appeal was denied by the general secretary, the president, or any other union officer, the Unification Agreement was violated.

The sense of Section 12 is that all rulings of officers (in respect to rights under the unification agreement) will be subject to review by the Disputes Committee. The Unification Agreement contains no suggestion that any officer would have the power to deny access to the Disputes Committee. The decision to deny access to the Committee (because of the untimeliness of an appeal) is clearly subject to review by the Committee, if not actually reserved to the Committee.

Therefore, in the judgment of this Court, the decisions to deny access to the Dispute Board and refusal of the president to call the Dispute Board in session were not authorized by the Unification Agreement. The decision as to the timeliness of the appeal was for the Committee, not the General Secretary.

As conceded in the Union’s brief, the choice between Ohio law and Tennessee law is not determinative. The determinative question is whether plaintiff has been accorded his rights under applicable Union laws (the Unification Agreement). In the view of this Court, under the record on appeal, plaintiff has been denied his right of access to the Disputes Committee, and is entitled to relief in the Courts.

The brief of the Union insists that plaintiff delayed three years in protesting his placement and resultant loss of pay. According to the record, the merger was accomplished on January 1, 1969. Plaintiff’s reassignment perforce occurred some time thereafter. His claim for compensation was filed with the Union president on October 29,1971, two years and ten months (not three Years) after the merger; but it is not the untimeliness of his claim which might bar his appeal, but the untimeliness of his appeal.

The president disapproved plaintiff’s claim on December 1,1971. The appeal was filed on January 15, 1972, 45 days after the president’s decision.

Plaintiff insists, and there is evidence to show that plaintiff’s delay of two years and 10 months in presenting a claim was excused by assurances from union officers that his work would increase with passage of time. Nevertheless, the delay in presenting the claim was merely an element to be considered on appeal, and not grounds for refusing appeal.

The delay of two years and ten months in presenting a claim and the delay of 45 days in filing an appeal certainly were not unreasonable as a matter of law; and, if deemed unreasonable as a matter of interpretation of union law, the issue should have been decided on appeal by the Disputes Committee as provided by the Unification Agreement.

As noted above, the Chancellor’s opinion makes reference to the reasonableness of the work assignment given to plaintiff. This is an issue which should not be decided by summary judgment, but by consideration of all the evidence. Moreover, this issue has not been considered by the president or the Dispute Committee.

The violation of a right assured by the Unification Agreement renders immaterial any questions of motives or arbitrariness. The union member has been refused that decision-making process assured to him by the union law (Unification Agreement), therefore he is entitled to pursue his remedies in the courts.

The summary judgment of dismissal is reversed. The cause is remanded for trial on the merits.

Reversed and Remanded.

SHRIVER, P. J., and DROWOTA, J., concur.


author: DUNCAN, Judge.

text:
    Michael William LEACH, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 6, 1977.
    Certiorari Denied by Supreme Court May 2, 1977.
    Prank D. Dossett, LaFollette, Joseph J. Levitt, Jr., Rufus W. Beamer, Jr., Knoxville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, Arzo Carson, Dist. Atty. Gen., Huntsville, Jeffrey Hall, Asst. Dist. Atty. Gen., LaFollette, for appellee.
   OPINION

DUNCAN, Judge.

The appellant, Michael William Leach, was convicted in the Campbell County Criminal Court of second degree murder, and received a penitentiary sentence set by the jury at a minimum of 10 years and a maximum of 20 years. In the trial court’s judgment, the appellant was sentenced to 10 years in the penitentiary.

We find merit to the appellant’s complaint about the trial court’s charge on the parole, good time, and honor grade statutes, and we must reverse and remand this case for a new trial.

The State argues that the parole charge eomplaint was not properly raised at the trial level, and thus we should not consider it. In his motion for a new trial, the appellant stated his complaint in this manner:

“That the trial jury under the instruction of the Court had to dispose of the charge of Second Degree Murder prior to deliberating on lesser included offenses, and after requesting and receiving additional instructions from the Court on parole for a sentence of a minimum of three years on a lesser included offense, could not return to deliberations on the greater offense, thereby putting the defendant twice in jeopardy on the same charge.”

In Farris v. State, 535 S.W.2d 608 (Tenn.1976), our Supreme Court held that the portion of T.C.A. § 40-2707 which mandated a charge on the parole statutes was unconstitutional. The Supreme Court, on a petition to re-hear in Farris, held that the fact the charge was given did not always mean that relief would be granted, saying: “In other words, ‘every tub must stand on its own bottom.’ ” Thus, under Farris, we are obligated to look at each case and determine whether the facts of the case merited the verdict of the jury, both as to the offense and the punishment set, or whether the charge on the parole statutes brought about the verdict. In applying the Farris principles, we have held that in order for this complaint to receive attention on appeal, it must be initially raised in the trial court. Obviously, if we were to apply the principles of Farris to the present case, relief would be warranted. Further, if we were dealing here only with a Farris question, then perhaps the appellant’s failure to attack the constitutionality of T.C.A. § 40-2707 in the trial court would give some merit to the State’s argument that we should not now consider the complaint on appeal; however, there are other considerations involved, and we think the appellant’s assignment in the lower court concerning the charge complaint is sufficient to merit our consideration.

The charge complained about was not included in the court’s original instruction to the jury. After the jury had deliberated for 1 hour and 5 minutes, the jury returned to the courtroom, and the foreman of the jury inquired of the court: “We would like to know what time the defendant would have to serve if we agreed on, say, three years on the minimum sentence. How much time would be served?” Whereupon, the court proceeded to charge on the parole provisions for indeterminate sentences, but omitted the parole instructions for determinate sentences, even though one of the offenses charged (second degree murder) is punishable by a determinate sentence. In view of the mandates of T.C.A. § 40-2707, it was not improper for the trial judge to give this additional charge concerning the parole provisions. However, it was incumbent upon him, when he did give it, to give the full charge as it pertained to both indeterminate sentences and determinate sentences.

As a general rule, it is within the province of the court to recall a jury for supplemental instructions, but it is considered the better practice to admonish the jury not to place undue emphasis on the supplemental instructions and to consider them in conjunction with the entire charge. In some cases, failure to so admonish the jury can amount to reversible error. Whether it is reversible error is determined by examining the entire record to ascertain if such action might reasonably be expected to prejudice a defendant. Burton v. State, 217 Tenn. 62, 394 S.W.2d 873 (1965).

Apart from the Farris question previously mentioned, in the present case the trial judge did not admonish the jury at the time he gave it the supplemental instructions as to how they should consider the instructions. It is apparent that the supplemental charge triggered the jury’s verdict of second degree murder and the resulting punishment set. The trial court had charged the jury on the offense of second degree murder, voluntary manslaughter and involuntary manslaughter. The foreman’s reference to a 3 year minimum sentence indicated that the jury was, at that time, considering the offense of voluntary manslaughter. After the court’s supplemental instructions on the parole provisions for indeterminate sentences, it is apparent that the jury was convinced that it would have to move the offense to a higher grade of homicide to extract from the appellant the minimum time it desired him to serve. A jury is obligated to initially determine what, if any, offense a defendant is guilty of, and then set a sentence to fit the crime. Obviously, in the present case, the jury did just the opposite; it decided the minimum number of years which it wanted the appellant to serve and then used the court’s parole instructions to settle on the offense of second degree murder so as to achieve the desired result.

Additionally, our conclusion that the parole charge brought about the verdict in this case is further shown by the fact that although second degree murder is punishable by a determinate sentence (T.C.A. § 39-2408), the jury fixed an indeterminate sentence for the appellant by reporting the punishment at a “minimum sentence at ten years and the maximum sentence of twenty years.”

Further documentation of our conclusion is shown by the court’s post-trial interview with juror James Green. Juror Green stated that the jury wanted to know if the “defendant” would “have to serve the minimum time that was given.” The juror further stated: “But anyway, when the jury wanted to know that, and he came back and asked the question if they were given a sentence from three to ten years, would the minimum be three years, because many times they’re paroled. They wanted to be sure that when they set the penalty that he wouldn’t be paroled before the minimum was served.”

The fact that the court altered the jury verdict by reducing the appellant’s sentence to the minimum for second degree murder —10 years — cannot prevent a reversal, because from the developments shown in this record, absent the parole charge, the jury might well have agreed on a lesser offense than second degree murder. As we have previously indicated, the jury was apparently considering a lesser degree of homicide before the parole charge was given.

Since this case must be reversed and remanded for a new trial, we will not consider the appellant’s complaint on the evidence, other than to reiterate our holding in Armes v. State, 540 S.W.2d 279 (Tenn.Cr.App.1976), that the presumption of malice that arises from an unlawful killing by the use of a deadly weapon is still a valid presumption in Tennessee; that a court may properly predicate a charge thereon; and that it does not violate the standards of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In our opinion, absent other invalidating errors, the stated presumption, unless rebutted, can serve to supply the necessary ingredient of malice incident to a finding of second degree murder.

As to the appellant’s final complaint of jury misconduct, we note that the trial judge held a hearing, interviewed one of the jurors, and heard other witnesses regarding this complaint. He found no misconduct on the part of the trial jurors, and we agree with his finding. Under our law, a juror is not permitted to impeach his verdict. Batchelor v. State, 213 Tenn. 649, 378 S.W.2d 751 (1964).

For the reasons stated at the outset of this opinion, we reverse and remand this case for a new trial.

O’BRIEN and BYERS, JJ., concur.


author: RUSSELL, Judge.

text:
    Theodore WILEY, Jr., and Osborne Booker Waters, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 12, 1977.
    Certiorari Denied by Supreme Court May 2, 1977.

      William B. Bruce, Nashville, for Wiley.
    Charles L. Hendrix, Jr., Nashville, for Waters.
    R. A. Ashley, Jr., Atty. Gen., William B. Hubbard, Asst. Atty. Gen., Edward M. Yarbrough, Asst. Dist. Atty. Gen., Nashville, for appellee.
   OPINION

RUSSELL, Judge.

Theodore Wiley, Jr. and Osborne Booker Waters were jointly charged with the commission of two separate armed robberies (of Raymond R. Oakley and Rex D. Kenyon) and, upon a joint trial, were both convicted in both cases. Wiley’s sentence was fixed at ten years in each case while Waters’ sentence was set at fifteen years in each case; and the trial judge, without setting out why, ordered the two sentences of each man to be served consecutively. Both have appealed and assigned numerous errors. For the reasons hereinafter set out, we overrule the assignments of error of both appellants and affirm the convictions.

The robbery victims, Oakley and Kenyon, operators of a semi-trailer truck, were victimized immediately after arriving in Nashville. Arriving at their truck docking area in the nighttime, they were shortly accosted by two robbers armed with pistols. Their personal valuables were taken, as was a tape player from their tractor. The robbers, both young black men, made violent threats with racist overtones to the victims. Finally, each victim was knocked in the head in an apparent effort to kill them. Both played dead and survived. Immediately after the robbers left the scene the victims drove to an area police station and reported the matter. Shortly thereafter an automobile registered to Wiley was involved in a chase with a police cruiser and was wrecked and abandoned by two black males. A search of the car revealed fruits of these robberies and a pistol identified as one of the weapons used. Subsequently victim Oakley was shown a group of five photographs by police officers, and picked Appellant Wiley’s picture as being that of one of the robbers. The following day a group of six additional photographs was shown to Oakley, and this time he identified a picture of Waters as being that of the second robber. Victim Kenyon could not identify either robber because, in his words, his eyes were “glued on the gun” during the robberies.

The cases against Wiley and Waters had at one time been severed, and Waters had been separately tried, that proceeding resulting in a mistrial because of a hung jury. Apparently Wiley chose to testify upon that trial, and admitted that he (Wiley) was “up with” the robbery, and admitted that he took the tape player which he abandoned in his car upon running from the police. Wiley also gave a statement to the investigating officers, after full advice of his Miranda rights, and the statement fully inculpated him. Victim Oakley made a positive in-court identification of both of the accused.

Only Waters questions the legal sufficiency of the convicting evidence. The defendants offered no proof. Obviously, the assignment is without merit. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

Wiley assigns as error the fact that he was tried for “two separate and distinct offenses”, and Waters claims error because his trial was consolidated with that of Wiley. The same evidence was germane to both offenses and to the prosecutions of both defendants. The confessions of Wiley were carefully redacted to eliminate any reference to Waters. There was no abuse of the trial judge’s discretion and no error. As to Wiley’s argument that only one offense was committed in the simultaneous robbery of the two men, he faces the insurmountable obstacle of precedents explicitly holding to the contrary. Wilkerson v. State, 211 Tenn. 32, 362 S.W.2d 253 (1962); Morgan v. State, 220 Tenn. 247, 415 S.W.2d 879 (1967).

Both Wiley and Waters assign error upon the trial judge’s ordering their respective two sentences to be served consecutively. Unquestionably he had the right and authority to do so. T.C.A. § 40-2711 explicitly so provides, and also provides that the trial judge’s action in that respect shall be reviewable. Our Supreme Court, in the case of Gray v. State of Tennessee, 538 S.W.2d 391, filed at Jackson of June 1, 1976, for publication, laid down standards for the making of this judgment by the trial judge, and specifically directed that in all cases the record shall be made to reflect the reasons for the ruling. This record does not contain an expression by the trial judge of his reason or reasons, and under the authority of Gray we would usually be required to remand the case with instructions to the trial judge to include in the record those factors which he considered in ordering the sentences to be served consecutively. The obvious reason for this lack of compliance with the mandates of Gray is that this trial was held on November 18, 1975, more than six months before Gray was filed.

We hold that in this instance the reasons for the ruling are both obvious and sufficient, making a remand unnecessary. Where it appears that one is a dangerous offender the sentences may properly be made consecutive. Our Supreme Court, in Gray, said:

A defendant may be classified as a dangerous offender if the crimes for which he is convicted indicate that he has little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high. This does not mean that all defendants convicted of several counts of a dangerous offense, such as armed robbery, should be consecutively sentenced. Even though armed robbery is a dangerous offense, there are increased penalties for that crime. The decision to impose consecutive sentences when crimes inherently-dangerous are involved should be based upon the presence of aggravating circumstances, and not merely on the fact that two or more dangerous crimes were committed.

In the case at bar, it was totally unnecessary to the purposes of robbery for the helpless and unresisting victims to be hurt, and yet each was struck a vicious blow to the head. Oakley was pronounced dead by one of the robbers before a like blow was delivered in cold blood to Kenyon: It would be an exercise in exercising for us to remand this record to the trial judge for him to state reasons, since aggravating circumstances manifestly appear.

Wiley assigns as error the admission into evidence of his inculpatory statement, claiming that it was involuntarily given. This same contention was made upon the trial and a jury-out hearing was conducted by the trial judge. Wiley claimed that the statement was beaten from him. The interrogating officers denied the accusation. During the course of his cross-examination Wiley unequivocally admitted to perjury upon material matters, saying that he had lied during Waters’ first trial when he (Wiley) then testified that he had committed the robbery. The trial judge found as a fact that the statement was not coerced. It is well settled that the finding by a trial judge that a confession was voluntarily made will not be overturned unless the defendant makes a showing that the evidence preponderates against such finding. Wooten v. State, 203 Tenn. 473, 314 S.W.2d 1 (1958). We affirm the judgment of the trial court and overrule the assignment of error.

Wiley’s next assignment of error presents a difficult question for this Court, because the totality of the relevant factors do not appear. The assignment is that Wiley’s testimony upon Waters’ previous trial should not have been introduced against Wiley upon this trial “since his Court appointed attorney was not present at that time”.

It does appear that Wiley’s attorney was not present when he testified upon the earlier trial. What does not appear is why he was not present, and what part (if any) he had in Wiley’s voluntarily testifying. Apparently the trial judge did not explicitly advise Wiley of his Fifth Amendment rights not to testify. He (Wiley) was, of course, at that time a co-defendant, but his case had been severed. Probably Wiley’s own lawyer had fully advised him that he did not have to testify. It would have been well for the trial judge to have made this fact to appear; or, if it were not a fact, to so advise Wiley himself of his Fifth Amendment rights. What the trial judge did do was to advise Wiley that he had the right to have his attorney present, and made sure on the record that Wiley understood that right and affirmatively waived it. We cannot assume that Wiley was not aware of his Fifth Amendment right not to testify, in the face of the circumstances strongly indicating that his testimony was given with the prior knowledge of his lawyer, and in the total absence of a contrary showing. It would have been a better practice for the trial judge, on the record at the first trial, to have made Wiley’s knowledge and waiver explicit.

Argument upon this assignment is directed at the Sixth Amendment right to counsel. Wiley expressly waived his right to have his attorney present. We assume also, in the context of this case, that his attorney was well aware of this choosing to voluntarily testify and made the decision not to attend. We cannot hold this to have been ineffective representation without knowing the facts. The assignment is overruled.

Wiley’s final assignment of error complains of the jury argument of the prosecuting attorney. This argument is not included in the Bill of Exceptions, so this Court has nothing to consider. The transcript, after page 189 and before page 203, contains a parenthetical note: “Pages 190-202: Argument by General Yarborough— Mr. Bruce objected to a portion of General Yarborough’s argument to the jury and was one of the grounds listed in his motion for a new trial. The argument of General Yar-borough (opening argument) is made an exhibit to Mr. Bruce’s motion for a new trial”. We find no such exhibit with the motion for a new trial, even if that were the proper way to present the record on appeal. Both the appellant and the State quote from the alleged argument in their briefs. The appellant makes no citation to the record as required by Rule 14(2); while the citation of the State is to pages 201 and 202, which in the record before us are merely covered by the above quoted note. It is a fundamental rule that we cannot pass upon matters not presented by the record before us. Fonte v. State, 213 Tenn. 204, 373 S.W.2d 445 (1963).

Waters assigns error upon the introduction into evidence of the six pictures from among which Waters’ picture was picked by one of the victims. The thrust of the complaint is that the photo line-up was highly suggestive and violative of fundamental fairness. We have examined the photographs and carefully reviewed the relevant portions of the record. The assignment is without merit.

Waters filed a pro se motion to dismiss, which was concluded with the assertion that for him “the only fair trial is no trial at all”. The trial judge dismissed the motion, and this is assigned as error; but the assignment is neither briefed nor argued. We overrule the assignment.

Waters’ fourth assignment contends “that the Court erred by its failure to declare a mistrial as to him upon his motion after Officer Jack Rohtert mentioned his name while summarizing the codefendant’s statement”. What actually happened was that in answer to a direct question by counsel for Wiley the officer did say that “Osborne Moore” was the person who Wiley had said was with him. While Waters had originally been indicted under his name with “Osborne Moore” listed as an alias, this had been stricken from the indictment and the jury had no way of knowing that it was Waters who was alluded to. We need not discuss this question further, other than to say that the State deliberately avoided any reference to the name of Wiley’s cohort as told to the officers by Wiley, and this name was brought out purposefully by Wiley’s attorney. Perhaps the State should have objected to the question, as should have counsel for Waters. The State must always guard against the injection of incompetent evidence by one co-defendant against another. However, no harm resulted in this case, and it could be argued that since the jury heard only a name that was not Waters’ that he was helped rather than prejudiced. Even if this had been error, it would certainly have been harmless in the face of the overwhelming proof of guilt in this case. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972).

Finally, Waters contends that the sentences set are excessive. They are within the range set by law. The assignment is without merit. Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963).

Affirmed.

GALBREATH, and DAUGHTREY, JJ., concur.


author: TATUM, Judge. RUSSELL, Judge,

text:
    Anthony Keith HATCHETT, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 12, 1977.
    Certiorari Denied by Supreme Court May 2, 1977.

      Jay Fred Friedman, Memphis, for appellant.
    R. A. Ashley, Jr.,. Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, William E. Frulla and Joseph B. Dailey, Asst. Dist. Attys. Gen., Memphis, for appel-lee.
   OPINION

TATUM, Judge.

The appellant was convicted for possessing a controlled substance (lycergic acid diethylamide — LSD) and his punishment was fixed at 11 months and 29 days in the county jail or workhouse. This conviction must be reversed.

The assignment of error which must be sustained is that the Court erred in allowing the State to question the appellant concerning a prior misdemeanor conviction. Over his objection, the appellant was asked several times, on cross-examination, “Have you ever used illegal drugs”. He replied that he had not. On further cross-examination, he was asked whether he was convicted for possessing marijuana in the General Sessions Court of Shelby County on January 14, 1972. He was required to answer over his objection. His answer was in the affirmative.

The State contends that the question concerning the conviction contradicted his prior testimony on cross-examination to the effect that he had never used drugs and was, therefore, proper for impeachment purposes. We disagree. The questions concerning the appellant’s prior use of drugs were improper for any purpose. The simple possession of a controlled substance is a misdemeanor. T.C.A. § 52-1432(b)(l). The specific act of simple possession or use of drugs is not such that can be lawfully asked a defendant on cross-examination for impeachment purposes. See, State v. Morgan, 541 S.W.2d 385 (Tenn.1976); Collard v. State, 526 S.W.2d 112 (Tenn.1974); Fee v. State, 497 S.W.2d 748 (Tenn.Cr.App.1973). Since the question concerning prior possession of drugs was not proper, because it was irrelevant and prejudicial, the question concerning the conviction for possession of marijuana would not be allowed for impeachment purposes. The State cannot ask a witness an irrelevant but prejudicial question, and then, under the theory of impeachment, predicate a second irrelevant and prejudicial question upon the defendant’s response to the first question.

The simple possession of marijuana is a misdemeanor. T.C.A. § 52-1432(b)(l). This is not a crime involving moral turpitude, or a crime of such character that the conviction itself would discredit the testimony of the defendant. There is no connection between the use or possession of marijuana and the veracity of a witness. Collard v. State, supra; see, State v. Morgan, supra; Fee v. State, supra.

We think that the admission of this evidence was prejudicial, particularly since it communicated to the jury that the appellant had been previously convicted for a similar offense for which he was being tried.

The remaining assignment of error complains that the Trial Judge charged the jury as to the law regarding parole. Our disposition of this case makes this assignment moot.

The judgment of the Criminal Court of Shelby County is reversed and the case is remanded for a new trial.

WALKER, P. J., concurs.

RUSSELL, Judge,

dissenting.

I am unable to agree that the error, if any, in the admission for impeachment purposes of evidence of the appellant’s prior misdemeanor conviction for the possession of marijuana mandates the reversal of this conviction.

Rule 14(6) and T.C.A. § 27-117 clearly provide that error is not reversible unless it affirmatively appears that it prejudicially affected the judgment on the merits. There is no such showing here. Hatchett was prosecuted for selling a controlled substance, a felony, and under the State’s proof is shown to be guilty of that offense. However, the jury elected to convict him of only the misdemeanor of simple possession.

This record reflects the difficulty which all of our Courts have had with the question of what prior bad acts and/or convictions may be introduced against a testifying defendant for impeachment purposes. Our Supreme Court, on August 9, 1976, handed down an opinion in the ease of State of Tennessee v. Morgan, 541 S.W.2d 385, for publication, wherein Rules 608 and 609 of the Federal Rules of Evidence were explicitly adopted, and hopefully will furnish the needed guidance. The case sub judice, however, was tried on February 12, 1976, six months before Morgan was released. In that context it is easy to understand why the learned trial judge, after a conscientious review of the authorities, permitted evidence of the prior misdemeanor conviction.

Certainly this was error under Morgan. However, it should be pointed out that when the testimony was first elicited from the defendant on cross-examination, the grade of the offense was not made to appear. The State showed that Hatchett had been convicted on marijuana charges. It was developed on cross-examination that the offense was a misdemeanor.

The learned trial judge immediately gave the jury a special instruction, limiting their consideration of this evidence to impeachment only, and repeated the charge within the general charge.

Very significantly, this record is full of evidence, presented by the State, and not assigned as error on this appeal, to the effect that Hatchett was a drug dealer. The undercover agent who made this case testified in minute detail about his conversations with Hatchett relative to prospective deals involving a variety of controlled substances. This certainly defused the impact of the prior misdemeanor conviction.

The majority must assume, in order to reverse this case, that the jury failed to heed the trial judge’s explicit and repeated instruction to consider this testimony on the issue of credibility only. Since we have decided, in the evolution of the law on this point, that a misdemeanor conviction has no real probative value on this point and for that reason isn’t admissible, how can we assume that it is prejudicial? If the prior offense had been a felony, we certainly would have admitted it, though the risk that the jury would ignore the limiting instruction would certainly be greater. The Court’s judgment in effect holds that the prior conviction was not serious enough to be admissible, but was so bad that it mandates a reversal that would not have been required had it been worse.

I believe that we must immediately seek to bring order and consistency to this point of evidence law and its administration by following the federal rules formula adopted in Morgan. In that light, this evidence was inadmissible, being of a prior misdemeanor conviction. But in view of the total context of this case, as heretofore set out, I see no grounds for a reversal. Sometimes it is necessary to assume prejudice in order to assure future compliance with a rule of law; but this record makes no case for such an application. This trial judge was doing about as well as anyone could have done, given the precedents considered viable at that time.

I would affirm.


text:
    Phillip Edward HALL, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 27, 1977.
    Certiorari Denied by Supreme Court May 2, 1977.
    Kenneth R. Roach, Memphis (trial below), Walker Gwinn Chief Appellate Counsel, and Edward G. Thompson, Public Defender, Memphis (on appeal), for appellant.
    R. A. Ashley, Jr., Atty. Gen., William W. Hunt, III, Asst. Atty. Gen., Nashville, John A. Irvine, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

RUSSELL, Judge.

The defendant-appellant, Phillip Edward Hall, appeals two grand larceny convictions carrying concurrent three year penitentiary sentences. The two thefts occurred upon a single construction site in Shelby County, but involved break-ins at different buildings and the theft of property belonging to two different owners. The two charges were consolidated for trial, for the obvious reason that the same proof made out both cases.

An air conditioner, welding machine and building wire were stolen. This stolen property was found in a rental truck which had become stuck in the mud on a road leading to the construction site. When this truck was discovered the appellant was observed behind the wheel. He left and returned several times and assisted in attempting to free the truck.

When arrested Hall voluntarily gave a statement. It was exculpatory and hinged upon an alibi. Hall did not testify upon the trial, but presented an alibi defense.

The appellant questions the legal sufficiency of the convicting evidence. We hold that the evidence does not preponderate against the verdict, and overrule that assignment of error. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

Hall contends that it was error for the trial judge to overrule his motion to require the State to prove the content of Hall’s exculpatory statement. There is no merit to this contention. Obviously, the State did not believe the out-of-court un-sworn statement, and was under no obligation to present it. The accused could have testified under oath, subject to cross-examination, but did not choose to do so. On the proposition of the State’s not being required to present witnesses, see State v. Bomar, 214 Tenn. 476, 381 S.W.2d 280 (1964). It is settled law that the accused could not have introduced the self-serving statement. Wharton’s Criminal Evidence, 13th Edition, § 303 has this to say:

A declaration made by a defendant in his own favor, unless part of the res gestae or of a confession offered by the prosecution, is not admissible for the defense. A self-serving declaration is excluded because there is nothing to guarantee its testimonial trustworthiness. If such evidence were admissible, the door would be thrown open to obvious abuse: an accused could create evidence for himself by making statements in his favor for subsequent use at his trial to show his innocence.

This statement of law is supported by our case of Moon v. State, 146 Tenn. 319, 242 S.W. 39 (1921), where it was held that the out-of-court statement of the defendant to the effect that his wife had shot herself was incompetent as a self-serving declaration. It is fundamental that the State was not obligated to introduce exculpatory evidence which was available to the defendant but incompetent. This assignment is overruled.

A related assignment, wherein the complaint is made that the trial Court should have granted a special request to charge the jury that the State’s failure to call the witness to the defendant’s statement raised a presumption that the testimony would have been unfavorable to the State, is patently without merit for the reasons heretofore stated.

Finally, complaint is made of the charge given to the jury as to the effect of the possession of recently stolen property. It is said that this charge violates due process of law by shifting the burden of proof on the issue of guilt or innocence. We have held to the contrary in the case of Phipps v. State, 3 Tenn.Cr.App. 574, 464 S.W.2d 341 (1970).

Affirmed.

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


author: WALKER, Presiding Judge.

text:
    John D. STROUP, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 23, 1977.
    Certiorari Denied by Supreme Court May 2, 1977.

      Houston H. McKnight, Memphis, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Richard S. McNeese, Asst. Dist. Atty. Gen., Memphis, for appellee.
   WALKER, Presiding Judge.

OPINION

The appellant, John D. Stroup, was convicted of professional gambling in violation of TCA 39-2032 and sentenced to not less than two years nor more than two years in the penitentiary. The indictment charged that between April 13, 1974, and May 13, 1974, the appellant engaged in professional gambling by offering to accept and accepting from Harold Halliburton and Barry Moore, for profit, money and credits to be risked in gambling on professional baseball and basketball games.

In October 1973, Memphis police began an investigation of bookmaking gambling in the city. They established a headquarters in a rented apartment and had several telephones installed for the purpose of placing bets. They had tape recorders attached to these phones to monitor and record the conversations.

Harold Halliburton, a barber who had lost large sums gambling, agreed to assist police in their investigation. On April 13, 1974, Halliburton received from David Looney, with whom he had gambled previously, a telephone number and the name “Allen.” Looney and the appellant married sisters and Looney refers to him as “Allen.”

On April 13, 14, 16 and 24, Halliburton and Barry Moore, a Memphis policeman, made phone calls to “Allen” at the number provided by Looney and, from the conversations between them and “Allen”, they made numerous bets on various athletic contests, especially major league baseball.

“Allen” directed Moore to settle all bets with Robert Singer. On April 29 Moore met Singer in a Memphis restaurant where they exchanged money in settlement of the bets.

A telephone company representative testified this telephone number used by “Allen” was registered to John D. Stroup, the appellant. Looney also testified that this same number he provided to Halliburton was that of the appellant.

The appellant did not testify. Robert Singer denied any dealings with him.

In challenging the sufficiency of the evidence, the appellant insists the state failed to show he was engaged in gambling as a business, that it showed he engaged in it for fun; and, in any event, he was unsuccessful in the venture. For these reasons, he says he does not come within the prohibitions of TCA 39-2032.

Moore made 23 bets with “Allen” involving $3090 over a two-week period, in which Moore won about $850. From the large number of bets, the amount of money in the transactions, and the short time interval, the appellant was clearly engaged in gambling of the type designed to augment his personal income which is prohibited by the statute. Squires v. State, Tenn.Cr.App., 525 S.W.2d 686; Alley v. State, 218 Tenn. 497, 404 S.W.2d 493.

The appellant also argues that he did not personally participate in any exchange of money. Although the evidence does not show that the appellant physically handled the money, the funds exchanged by Singer were at his direction.

He further contends that the statute is aimed only at punishing successful gamblers or those who actually show a profit. His interpretation would make his responsibility depend upon the outcome of an athletic event, an obvious absurdity. The phrase “for profit” is meant to emphasize that only gambling conducted as a business is proscribed by the statute. See also TCA 39-2033(1). The bets here gave the appellant an unequal advantage in a series of transactions, regardless of the outcome of the particular games, and constituted a business.

The evidence does not preponderate against the verdict and the assignments on the weight and sufficiency of the evidence are overruled.

The appellant urges that the state violated TCA 39-4533 by recording his telephone conversations and that the tapes should have been suppressed. This statute proscribes interrupting or interfering with public services and appliances.

In addition, TCA 65-2117 prohibits the wiretapping of phones without consent of the owner or his agent of the line. Taken together, these statutes authorize, by implication, the recording of a telephone conversation where one party to the conversation consents to the recording.

This interpretation is buttressed by the Crime Control Act of 1968, 18 U.S.C. secs. 2510-20, which specifically exempts consent recordings from its prohibitions. 18 U.S.C. § 2511(2), (c)(d). See also Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966). Consequently, Halliburton’s consent made these recordings lawful.

The tape recordings were properly identified, the conversations on them were shown to be accurate reproductions of the conversations during the gambling, and the voices were identified. The voice of “Allen” was questioned as it related to the appellant. “Allen” answered the telephone and conducted the bookmaking at appellant’s telephone number. Several witnesses (including Singer) said the voice on the tapes sounded like that of the appellant. Moore and Looney also thought “Allen’s” voice sounded like the appellant’s, though they did not make positive identification.

For authentication purposes, voice identification by a witness need not be certain; it is sufficient if the witness thinks he can identify the voice and express his opinion. Auerbach v. United States, 136 F.2d 882 (6th Cir.1943). The weight of this identification is for the jury. Underhill’s Criminal Evidence, Sec. 129 (6th ed. 1973). This evidence was admissible.

Without merit is the complaint that the court erred in permitting a telephone company employee without her records to testify as to appellant’s number. This does not violate the best evidence rule as contended by the appellant because Looney testified to the same fact. Davis v. State, 92 Tenn. 634, 23 S.W. 59.

The appellant says the court erred by instructing the jury on conspiracy. The trial judge charged on the law of conspiracy as a rule of evidence and not as a separate offense. Since there was evidence of a gambling conspiracy among Singer, Looney and the appellant, the court did not err by instructing on that evidence.

The appellant complains of the instructions on parole. The jury could have fixed his punishment at five years’ imprisonment and a $1000 fine. Under the facts of this case, the charge was harmless.

We have considered all assignments and find them to be without merit.

Affirmed.

TATUM, J., did not participate in the decision of this case.

RUSSELL, J., concurs.


author: POPE, Justice. YARBROUGH, Justice,

text:
    Ann TAGGART, Petitioner, v. George TAGGART, Respondent.
    No. B-6363.
    Supreme Court of Texas.
    May 25, 1977.

      Wade & Cromwell, Charles W. Cromwell, Corpus Christi, for petitioner.
    Auforth, Keas, McCrury, Karchmer & O’Reilly, Fred C. Auforth, Corpus Christi, for respondent.
   POPE, Justice.

Ann Taggart instituted this suit against George Taggart for the partition of military retirement benefits that were not divided when the parties were divorced. The trial court, upon a finding that the parties were married during the time that eight-ninths of the retirement benefits accumulated, rendered judgment that plaintiff was entitled to four-ninths of all retirement pay received by her former husband. The court ordered defendant George Taggart to receive plaintiff’s share in trust for the plaintiff and make monthly disbursement to her of her share. The court of civil appeals reversed that judgment and rendered judgment that plaintiff take nothing. 540 S.W.2d 823. We reverse the judgment of the court of civil appeals and reform that of the trial court.

On June 5, 1943, George Taggart entered the United States Navy. Ann and George Taggart were married on October 7, 1947, and they were divorced on January 5, 1968. The divorce proceedings made no mention of retirement benefits. This is, therefore, another one of the succession of cases about retirement benefits which commenced with Kirkham v. Kirkham, 335 S.W.2d 393 (Tex.Civ.App.1960, no writ), and includes Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Ables v. Ables, 540 S.W.2d 769 (Tex.Civ.App.1976, no writ); Freeman v. Freeman, 497 S.W.2d 97 (Tex.Civ.App.1973, no writ); Miser v. Miser, 475 S.W.2d 597 (Tex.Civ.App.1971, writ dism’d); Webster v. Webster, 442 S.W.2d 786 (Tex.Civ.App.1969, no writ); and Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.1968, writ dism’d). Once again we admonish counsel and trial judges of the state to make determinations whether such benefits are among the assets of the marriage. See Busby v. Busby, supra.

On July 1, 1964, three and one-half years before the divorce, George completed the equivalent of twenty years of active duty. George did not retire but elected to be placed in the Fleet Reserve. 10 U.S.C.A., § 6330. As an enlisted man in the regular Navy, he had to complete thirty years of active duty before he was eligible for retirement based on years of service. 10 U.S.C.A., §§ 6326, 6331 (1958). Mr. Taggart was retired from the Navy on April 1,1974. Ann Taggart instituted this suit for the recovery of her share of the retirement benefits since April 1, 1974. She did not seek any part of the retainer pay that George Taggart earned for his service in the Fleet Reserve, nor was there any plea of limitations urged in this case.

The court of civil appeals decided this case in August, 1976, at which time the supreme court had granted a writ of error but had not written its opinion in Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976). We decided in Cearley that retirement benefits are subject to division as vested contingent community property rights even though the present right has not fully matured. We refused to follow the California case of French v. French, 17 Cal.2d 775, 112 P.2d 235 (1941), which treated an unmatured pension right as a nonvested expectancy instead of a vested right. In Cearley, we held that military retirement benefits were community property even though the benefits at the time of the divorce “had not matured and were not at the time subject to possession and enjoyment.” There is no necessity to again analyze the relevant Texas decisions or the opinion of the California court in Brown v. Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976), which rejected the rule of French v. French, supra, and recognized a present contingent right subject to divestment.

Since Cearley controls this case, we hold that Ann Taggart owned as her part of the community estate a share in the contingent right to military benefits even though that right had not matured at the time of the divorce. It appears, however, that the trial court did not make the correct computation of her fractional interest.

The trial court computed Ann Tag-gart’s one-half interest in George Taggart’s retirement benefits upon the basis of his twenty years of service as a member of the regular Navy. At the end of the twenty years, he was not entitled to receive any retirement benefits based upon his term of service, because he had to serve in the Fleet Reserve for an additional ten years. It was, therefore, his three hundred and sixty months of service that entitled him to the retirement benefits. According to the undisputed evidence, Ann and George Tag-gart’s marriage coincided with his service in the Navy for a period of two hundred and forty-six months. The correct computation of Ann Taggart’s vested interest is that she was entitled only to one-half of of the retirement pay.

George Taggart by a point in the court of civil appeals challenged the fraction found by the trial court, but upon prevailing in the court of civil appeals, presented no cross-point in the supreme court which called that matter to our attention. It is our opinion that this is an instance in which we should apply the rule of McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964). George Taggart, having obtained a totally favorable judgment in the court of civil appeals, did not carry forward by cross-point in his brief to the supreme court his contention that the amount of the judgment against him was incorrectly computed. A cross-point in this court would have more clearly called such a contention to the attention of the supreme court, but it is our opinion that George Taggart did not waive the point. This is in keeping with McKelvy which excused a respondent from carrying forward a cross-point to the supreme court which is aimed toward a judgment less favorable to him than the one he received in the court of civil appeals. See Hatchell and Calvert, Some Problems of Supreme Court Review, 6 St. Mary’s L.J. 303, 318-322 (1974).

The judgment of the court of civil appeals is reversed; the judgment of the trial court is reformed to adjudge the correct fractional interest to Ann Taggart and as reformed is affirmed.

YARBROUGH, J., dissents.

YARBROUGH, Justice,

dissenting.

I respectfully dissent.

I find no fault in the position of the majority insofar as they seek to include military retirement benefits, which have accrued during the term of the marriage, in the corpus of the community estate to be divided by the trial court at the time of the divorce. I do feel, however, that good reasons exist for applying this rule prospectively in futuro to those divorce actions filed after the date of this court’s opinion, and I oppose the view and principle of the majority opinion only to the extent that it operates retroactively, and serves to resurrect the problems of a divorce — and its attendant property settlement agreements— of many years standing.

In the case at bar, the property of the parties' was divided pursuant to court decree in 1968. At the time of their divorce in 1968, military retirement benefits payable in the future were assumed to be of a contingent, non-vested character, and therefore outside the jurisdictional power of the court, and accordingly not subject to division by inclusion in court approved and/or drafted property settlements. Notwithstanding that assumption, which we now recognize to have been erroneous, courts were then free to make virtually any distribution of the remaining community and separate property as seemed just and appropriate, in order to do equity among the partners. We cannot know to what extent, if any, the expectation of retirement benefits influenced the various courts in dividing properties among divorcing partners. The bounds of judicial discretion in divorce property settlements have known little appellate limitation or review, and what courts could not do officially, they have often done unofficially. It is more than a “reasonable assumption” that such benefits have been, in many if not most instances, of major consideration to the court in effecting a property settlement between partners. We now modify those carefully drafted settlements en masse, and invite all formerly divorced partners to assert new claims to a part of their former spouse’s military retirement benefits under circumstances which preclude any review or adjustment of either the original property settlement, or of the equities that were developed as a part of that earlier division.

It is probable that many of the men and women, who are now post-divorce military retirees, have adjusted their life style to the income provided by the benefits. Presumably, many have new families, new ties, new obligations and responsibilities, including “second families.” In an effort to provide and plan for such responsibilities, many retirees have made irrevocable elections with respect to dependent, and survivorship benefits, the disruption of which will, in many instances, create hardship if not havoc.

Additionally, and perhaps most regrettably, the majority opinion now authorizes the resurrection of past disputes and personal disappointments — long since laid to rest — as the parties again come to the bar of justice for yet another round of bitter controversy over the question of who is entitled to how much of the retirement benefit — a question which most parties, their lawyers, and all courts, believed to have been answered and finally resolved pursuant to earlier court decrees now many years old.

By the majority’s holding today, we encourage all formerly divorced couples with military benefits to relive the pain of their divorce with attendant social disruptions to the life and life style of both the former partners and their new families. Certainly, a better result would have been achieved by applying this rule prospectively to divorce actions filed in the future.

      . This view prevailed until this court’s opinion in 1976 in Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976) when lawyers and trial courts were first authoritatively advised that unmatured retirement benefits were subject to division. The issue regarding division of matured retirement benefits was first addressed in 1970 by this court in Busby v. Busby, 457 S.W.2d 551 (Tex.1970).
      The instant case had been decided by the court of civil appeals before this court’s decision in Cearley, supra, and understandably, that court followed the long recognized rule that such benefits were not subject to division.


author: REAVLEY, Justice.

text:
    SOUTHWEST TITLE INSURANCE COMPANY, Petitioner, v. NORTHLAND BUILDING CORPORATION et al., Respondents.
    No. B-6390.
    Supreme Court of Texas.
    June 8, 1977.
    Rehearing Denied June 29, 1977.

      Elmer H. Parish, Gene Richie, Wichita Falls, for petitioner.
    Nelson, Montgomery & Robertson, David L. Tate, Wichita Falls, Keck & Barnes, Douglas A. Barnes, Dallas, Byron H. Schaff, Plano, for respondents.
   REAVLEY, Justice.

This suit seeks either recovery under a mortgagee’s title insurance policy or recovery because of the violation of a condition to the closing and disbursement of the mortgagee’s funds. The trial court and Court of Civil Appeals have rendered judgment for the mortgagee. 542 S.W.2d 436. We hold that the mortgagee has shown a breach of the terms of the title insurance policy, but we sever and remand that claim because of the lack of proof of damages.

The problem emanated from a $55,000 loan made by Northland Building Corporation to Dai-Rich Investments, Inc. on October 15, 1971. Northland was a family investment corporation in Wichita Falls and Dai-Rich was an automobile agency in Richardson in need of money. By a letter dated October 5 from Northland to Dai-Rich and accepted by it, the terms and conditions of the loan were agreed to. Second or third liens upon several lots in the North Richardson Addition were to be security for the repayment of the loan, and Dai-Rich was to furnish written statements from the owners of prior liens specifying the current balances of their indebtedness and agreeing that, regardless of any contrary provisions in their own agreements, their liens were superior to the lien to be granted Northland only to the extent of those current balances plus interest and proper fees. Dai-Rich was to furnish Northland with either a written title search report covering the properties or a mortgagee title insurance-policy.

Jeffrey Grynwald, an attorney in the private practice of law in Plano, had represented Dai-Rich on previous matters, and was brought into the matter by Dai-Rich to satisfy these requirements of Northland’s commitment letter. Grynwald was also an approved attorney of Southwest Title Insurance Company. Among the documents to be obtained for closing were two letters from Citizens State Bank of Richardson relative to its $18,900 loan to Dai-Rich made on February 4, 1971 and its $175,685 loan made on February 17, 1971. The former was secured by a deed of trust on Lot 6 in Block 2 of the North Richardson Addition, and the latter was secured by a deed of trust on Lots 7 through 10 of the same block and addition. These “estoppel letters” were to limit the priority of Citizens State Bank to the Northland security position in these lots to the extent of the current balance owing thereon. Grynwald gave the letter forms to Dai-Rich, and completed letters were returned to Grynwald which appeared to be signed by the President of Citizens State Bank. It later developed that these signatures were forged and that the President of Citizens State Bank had refused to relinquish any right in the security position to which the bank was entitled.

Northland made its $55,000 check payable to the order of Southwest Title Insurance Company and enclosed that check with a letter addressed to “Southwest Title Insurance Company c/o Guaranty Abstract & Title Company, 816 7th Street, Wichita Falls, Texas,” advising that the loan was “to be closed by your agent, Jeffrey Gryn-wald, of Plano, Texas,” and stating that “such funds should be disbursed for such loan whenever you have satisfied yourself that all requirements of Northland’s commitment letter dated October 5, 1971 . have been met . . .” Guarantee Abstract & Title Company, the title insurance agent of Southwest Title in Wichita County, forwarded the letter to Grynwald, who endorsed the check “Southwest Title Insurance Company by Jeffrey Grynwald,” and deposited the funds in his trust account at the First National Bank of Plano. On October 15 the transaction was closed and Grynwald disbursed the funds according to plan, and the documents were forwarded to Northland. Grynwald withheld $282 as premium for the title insurance policy. He paid 40% of this premium to Southwest Land Title Company, which was the title insurance agent of Southwest Title in Dallas County and which had furnished him the title information on the property; and after retaining 40% of the premium for himself, he forwarded 20% ($56.40) to Southwest Title Insurance Company. The title policy was executed by Southwest Title and forwarded to Northland.

Dai-Rich defaulted after making seven monthly payments on the note, and then Northland learned for the first time that the estoppel letters had been forged and that the amounts owing to Citizens State Bank totaled considerably more than the original loans and the amounts stated in the estoppel letters. The deeds of trust securing the loans by Citizens State Bank contained dragnet clauses which provided that the payment of any loan subsequently made would also be thereby secured. Additional loans had been made by Citizens to Dai-Rich following the date of the loan from Northland to Dai-Rich; the result was that when Citizens foreclosed on the lots in Block 2 on August 1, 1972, the proceeds all went to Citizens and nothing was left for Northland. Dai-Rich is insolvent.

Northland brought this suit against Southwest Title, Grynwald and First National Bank of Plano. The trial was to a jury which found, in part, that Grynwald was acting as agent of Southwest Title in attempting to follow the instructions in the final closing letter from Northland, that Grynwald was also acting as apparent agent of Southwest Title and that Southwest Title ratified the endorsement of Grynwald on the check payable to the order of Southwest Title (by accepting the benefits of the real estate transaction). The trial court rendered judgment for North-land against Southwest Title for $45,801.14 plus 18% interest thereon from August 1, 1972 until the date of the judgment on August 1,1975. The Court of Civil Appeals affirmed, holding that Southwest Title was liable to Northland to this extent because of the coverage of the title policy and, as well, because of Grynwald’s violation of the condition that valid estoppel letters be obtained prior to the release of the loan funds to Dai-Rich.

AGENCY OF GRYNWALD

It may be assumed for present purposes that the agreement or conditions imposed by Northland upon the disbursement of its funds to Dai-Rich required that Grynwald or his principal, if any, guarantee the authenticity of the estoppel letters. This record contains no evidence that Southwest Title authorized Grynwald to make that guarantee on its behalf. Southwest Title had certified Grynwald to be an “approved examining attorney,” which meant simply that his opinion on land titles would be accepted.

Under the Insurance Code of Texas only the operators or owners of abstract plants may be title insurance agents, and they in turn may employ their own escrow agents to disburse escrow funds. Art. 9.02(f) and (g). These title insurance agents and escrow agents must be licensed by the State Board of Insurance. Arts. 9.35 et seq. and arts. 9.41 et seq. The agency of the “title insurance agent” is for the solicitation and issuance of title insurance. Art. 9.02(f). Grynwald’s relation to Southwest Title and its title insurance agents was limited to their willingness to accept his legal opinion on land titles.

It may be further assumed that Gryn-wald had the authority “to close” the assurance of the issuance of the title insurance policy. No question about that matter arises, because the title policy has been issued and Southwest Title stands behind the terms of the policy. The arguments in the case confuse the closing of a title insurance contract and the closing of the entire transaction between Northland and Dai-Rich which required the satisfaction of numerous conditions — including the acquisition of estoppel letters from Citizens State Bank. There is no evidence in this record that Southwest Title conducts any business other than the issuance of title insurance or that it authorized Grynwald or anyone to conduct and accept responsibility for the details and conditions of loan transactions.

There is no evidence of apparent authority of Grynwald to do more. His possession of blank title policy forms could bear only upon the authority to issue the title policy. If his endorsement of the check made payable to Southwest Title, and his conducting the closing in response to Northland’s letter addressed to Southwest Title, can be said to have given appearance of wider authority, none of this was known or traceable to Southwest Title. Only the conduct of the principa], leading one to suppose that the agent has the authority he purports to exercise, may charge the principal through the apparent authority of an agent. Chastain v. Cooper & Reed, 152 Tex. 322, 257 S.W.2d 422 (1953). Nor can it be held that Southwest Title has ratified a wider exercise of authority on its behalf. The only benefit Southwest Title has received is the insurance premium, and Northland has at all times affirmed that portion of the transaction and insisted upon the performance by Southwest Title of the terms of the insurance contract.

THE TITLE INSURANCE POLICY

The mortgagee’s policy of title insurance issued by Southwest Title provided that it would pay to Northland “ . . . all loss or damage not exceeding the amount stated in Schedule A which the Insured . may sustain or suffer by reason of failure of, defects in, encumbrances upon, or liens or charges against the title of mortgagors or grantors at or prior to the date of this policy, including mechanics’ and material-men’s liens now having priority, or now existing but incomplete, which may hereafter be completed so as to gain priority over the lien of the Insured, . . . , and not excepted to in Schedule B hereof . . ”

Schedule B provided, in part:

This policy is subject to the conditions and stipulations hereof, the terms and conditions of the leases and easements, if any, shown in Schedule A, and to the following matters which are additional exceptions from the coverage of this policy:

Following that language, two of the eighteen exceptions are in the following language:

8. Vendor’s lien retained in deed from John Tingle, Wyndal H. Tingle and Gary L. Lawhorn, Trustees of Tingle Construction Company Employees Profit Sharing Plan, to Bob Kirsten, dated 2/24/71, filed 3/3/71, recorded in Volume 71043, page 206, Dr DCT, securing a note for $18,900.00 payable to Citizens State Bank further secured by a deed of trust to Charles R. Cravens, Jr., Trustee, filed 3/3/71, recorded in Volume 71043, page 0940, DTR, DCT (Page 86 at A-51125), Lot 6, Block 2;
15. Deed of Trust executed by Bob Kirsten to Charles R. Cravens, Jr., Trustee, dated 2/17/71, recorded in Volume 71036, page 1243, DTR, DCT, securing a note for $175,685.00, payable to Citizens State Bank, Lots 7, 8, 9 and 10, Block 2.

The question is whether the subsequent indebtednesses, exceeding the amounts of the original notes recited by these exceptions and which are secured by the liens because of the dragnet clauses in the deeds of trust, are excepted from the coverage of the policy by virtue of the above quoted language. Southwest Title argues that Northland knew of the dragnet clauses and that this was the purpose of its requiring the estoppel letters. We do not regard actual knowledge, or the notice to which the insured could be put by the reference in the policy to the deeds of trust, as relevant to the controlling question of what Southwest insured by the words of the policy.

Southwest Title contends that the provisions of the deeds of trust, including the dragnet clauses, are excepted from its coverage by the recitation to them and their place of record — thus incorporating by reference all of those provisions within the policy exceptions. There is no question but that a title insurance company may provide for an exception from its coverage by reference to the provisions of an instrument without setting forth in detail the content of those provisions. Again, the question is the effect of the particular language of this policy. When the language of these exceptions is studied, it will be seen that there is no statement to the effect that the coverage of the policy is subject to these certain deeds of trust and to whatever indebtedness may be thereby secured. Instead, the exceptions specify the indebtedness, to-wit certain notes, secured by the liens. Since the exception was limited to the prior liens securing that indebtedness, there was no exception for a prior lien securing additional future indebtedness to Citizens State Bank. Northland has proved that there was a defect in its security interest against which Southwest Title insured.

DAMAGES RECOVERABLE UNDER THE TITLE POLICY

Northland’s proof of damages was as follows: there was $45,801.14 owing on the Dai-Rich note as of August 1,1972; the price paid upon the foreclosure of the Citizens State Bank lien and deed of trust on August 1, 1972 was $250,874.12; all of that purchase money paid at the foreclosure sale went to Citizens State Bank because of its secured debt at that time of $253,416.70. The trial court rendered judgment against Southwest Title for $45,801.14 with 18% per annum interest from August 1, 1972 until the date of the judgment on August 1,1975. That means that the amount of the judgment was $75,252.73.

Southwest Title committed itself under the terms of the policy to reimburse North-land for any loss suffered due to an impairment of its security title not listed as an exception in the policy. Northland could have sued for the difference in the market value of the insured equity less the market value of the actual equity securing the mortgage — the difference being the effect upon the market value of the security title due to the undisclosed lien or secured indebtedness. See Goode v. Federal Title and Ins. Corp., 162 So.2d 269 (Fla.App.1964); In Re Gordon, 317 Pa. 161, 176 A. 494 (1935); Anno: Measure, Extent, or Amount of Recovery on Policy of Title Insurance, 60 A.L. R.2d 972 (1958). Northland is not restricted to that measure of damages, for it may recover its actual loss as subsequent events prove. And it is entitled to the interest provided in the note secured by its mortgage up to the date of the trial court judgment. Fidelity Union Casualty Co. v. Wilkinson, 94 S.W.2d 763 (Tex.Civ.App.1936) aff’d 131 Tex. 302, 114 S.W.2d 530 (1938). But in no event is the insured entitled to recover in excess of its unpaid indebtedness, or the market value of the land or equity insured, or the policy amount. Furthermore, the payment of the note is not insured. The insurer underwrites only against loss due to a defect in the security. Northland’s position seems to be that proof of a defect in the security makes Southwest Title an insurer of the payment of Dal-Rich’s note. When Southwest Title urges that Northland has failed to prove that its security was not otherwise adequate, Northland counters that Southwest Title cannot raise the point because it did not plead payment as required by Rules 94 and 95 of Texas Rules of Civil Procedure. Northland is incorrect; its suit is upon the title policy and not upon Dal-Rich’s note.

The judgment in favor of Northland is erroneous in two respects. In the first place, a suit upon the policy may not obtain judgment in excess of the policy amount— in this case $55,000. Secondly, Northland has failed to prove its loss due to the undisclosed secured indebtedness. It did prove that it obtained no funds from the foreclosure on Lots 6, 7, 8, 9 and 10 in Block 2. It did not prove the circumstances of the foreclosure, if any, on Lot 1, in Block 3 and Lots 7, 8, 9 and 10 in Block 5, all of which were covered by its deed of trust. These lots in Blocks 3 and 5 were appraised by North-land’s witness at an amount which is $47,-285 in excess of the original note amounts reflected in the deed of trust. Until further proof has been made, its loss because of the undisclosed defect in its security interest has not been established.

The claim by Northland Building Corporation against Southwest Title Insurance Company on the title insurance policy is severed from the remainder of the cause, and the judgments below are reversed as to this severed claim; the severed cause is remanded to the trial court for further proceedings in accordance with this opinion. The judgments below as to the remainder of the cause are affirmed.