author: HENRY, Chief Justice.

text:
    STATE of Tennessee, Petitioner, v. James JOHNSON, Respondent.
    Supreme Court of Tennessee.
    Aug. 25, 1978.

      Robert A. Grunow, Asst. Atty. Gen. for petitioner.
    Jimmie McIntyre and Tim J. Thompson, Memphis, for respondent.
   OPINION

HENRY, Chief Justice.

This criminal action is before the undersigned member of the Court on Petition for Common Law Writs of Certiorari and Su-persedeas.

The trial judge sustained respondent’s motion to suppress evidence of certain drugs held to have been seized in violation of the Fourth Amendment to the Constitution of the United States. The effect of this action on the part of the trial judge, as a practical matter, was to end the prosecution.

At a former hearing on the petition I expressed the “tentative and preliminary opinion that the petition [was] meritorious” but held the matter in abeyance, pending a decision of the Court of Criminal Appeals. It now appears that the appeal has been dismissed under the authority of State v. Bonhart, 223 Tenn. 582, 448 S.W.2d 669 (1969), by an order reciting that “the State has no right of. direct appeal from a trial court’s interlocutory order suppressing evidence.” For the purposes of this opinion, the Court accepts this to be a correct legal conclusion, although the writer of this opinion views this generally accepted proposition as being subject to serious and substantial doubt.

I.

The Searches and Seizures

The first search and seizure occurred at the Los Angeles International Airport on October 27, 1976, when a customer service agent of United Airlines processed a package delivered by two visibly nervous women, which purportedly contained a suit of clothes to be air-expressed to Memphis. Upon X-raying the package, he observed five dark masses, and after doing so, opened the package for purposes of inspection. It developed that these masses were five individually wrapped packets. This action was wholly independent of any information, request or involvement of any law enforcement official.

As a result of this inspection it was determined that these packets contained a quantity of pills. Whereupon, a member of the Narcotics Division of the Los Angeles Police Department was contacted. Upon his arrival the package was open and the pills were in plain view. He conducted a field test and determined that they were amphetamine.

This police officer retained one packet of the drugs and placed the remaining four back in the box. He thereupon telephoned Sergeant Tom Wright of the Shelby County Sheriff’s Department, advised him of the shipment, and made inquiry as to whether the Memphis authorities wished to pursue a “follow up investigation.” Upon receiving an affirmative response, he permitted United Airlines to place the package upon its flight destined for Memphis.

After the flight arrived in Memphis, Sergeant Wright and other law enforcement officers observed the package and staked out the United Airlines counter. When respondent showed up and claimed the package, the seizure was made.

It was the Los Angeles search that was invalidated by the trial judge. After correctly recognizing that “[t]he Fourth Amendment does not protect against searches and seizures conducted by private parties without governmental involvement” (citing Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 [1921]), the trial judge held the applicable and controlling authority to be Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949). The crux of the holding in Lustig with respect to the officer’s involvement was that “[s]o long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it.” 338 U.S. at 79, 69 S.Ct. at 1374, 93 L.Ed. at 1823.

In Lustig, the officer came upon the scene while the search was in progress and, therefore, “before the object of the search was completely accomplished.” Here, the search had been completed before the Los Angeles police officer arrived upon the scene.

The case of United States v. DeBerry, 487 F.2d 448 (2d Cir. 1973), is precisely in point. There a supervisor of air freight service in Los Angeles, noting the nervous behavior of a shipper of a suitcase destined for New York City, opened it and found fifteen bricks of marijuana. He then contacted the Los Angeles police, who, after inspecting the bag, notified the New York authorities of the shipment. When the suitcase was picked up in New York, it was seized by New York authorities.

After noting that “an inspection by a carrier is not a governmental search” and that “Emery Air Freight conducted the search independently of any information or request received from government officials,” (emphasis supplied) 487 F.2d at 450, the Court held that the search was not invalid under the Fourth Amendment.

With respect to the New York search the Court, after noting that the suitcase while in transit “remained legally seized,” said:

Thus, when the agents and police in New York removed the bag from the back seat of the car appellants were in, they were not making an initial seizure, but rather were merely reasserting control of the suitcase which had already been seized for legal purposes and which was merely being used as bait. (Emphasis supplied). 487 F.2d at 451.

Precisely the same results were reached in United States v. Ford, 525 F.2d 1308 (10th Cir. 1975). There the airline search took place in San Francisco and the seizure of the shipment occurred in Oklahoma City. The Court held that they constituted “one episode and must be considered together for Fourth Amendment purposes.” Id. at 1310. The Court validated both the search and the seizure.

As I understand this record, the Memphis seizure per se was not attacked. The contention is that it was tainted by an allegedly unconstitutional seizure in California. Aside from the reasoning reflected in the above cases, the Memphis seizure was made under exigent circumstances and was supported by compelling probable cause— indeed the Memphis authorities knew to a certainty that contraband drugs were contained in the shipment. They were not able, however, to abide the Fourth Amendment requirement of “particularly describing the place to be searched, and the person or things to be seized,” until after the respondent showed up to claim the shipment. It then became expedient and exigent that the seizure be made instanter.

I hold that the California search and the Tennessee seizure satisfied the requirements of the Fourth Amendment of the Constitution of the United States and of Article I, Section 7 of the Constitution of Tennessee.

II.

The Entitlement of the State to Relief under the Common Law Writ of Certiorari

A.

General

The caption of this section poses a problem of critical concern. I approach it within the context of a fixed opinion that the State’s interest has been plainly and palpably prejudiced by the ruling of the trial judge; that under current concepts the State has no right of appeal from an interlocutory judgment (in this case it is in effect a judgment of acquittal); and that a denial of this writ would operate to cause the State to forfeit an interest it can never recapture.

I applaud the criminal law explosion of the last two decades resulting in a more enlightened system of criminal justice, but a decent regard for fundamental fairness compels the conclusion that the State and its citizenry have an interest in the enforcement of our criminal laws. Criminal procedures must meet the critical criteria of mutual fairness.

Blind adherence to precedents tends to preclude progress and frustrate fairness. In my view, it is unthinkable that the State should lose a major criminal case on an interlocutory ruling at the trial level with no right of review.

Being guided by these beliefs and by what I conceive to be the interest of justice, I am granting the State’s petition for cer-tiorari and supersedeas.

B.

The Nature and History of the Common Law Writ

Section 27-801, T.C.A., provides:

The writ of certiorari may be granted whenever authorized by law, and also in all cases where an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy.

Section 27-802, T.C.A., provides:

Certiorari lies: (1) On suggestion of diminution; (2) where no appeal is given; (3) as a substitute for appeal; (4) instead of audita querela; (5) instead of writ of error.

These two Code sections appeared in the Code of 1858 as Sections 3123 and 3124, respectively, and it is doubtful that they were intended to apply to the appellate courts. This, however, is of no significance, since they track the common law.

“The writ of certiorari does not owe its existence to constitutional provision or statutory enactment.” Tennessee Central Railroad Co. v. Campbell, 109 Tenn. 640, 645, 75 S.W. 1012, 1012 (1903). It is a common law writ of ancient origin and has been characterized as extraordinary, remedial, revisory, supervisory, and prerogative.

C.

The General Rule

At the very outset, I recognize the general rule, as cogently stated in State ex rel. McMorrow v. Hunt, 137 Tenn. 243, 250, 192 S.W. 931, 933 (1917):

It must be borne in mind that the functions of certiorari are simply to ascertain the validity of proceedings before a court of justice, either on the charge of their invalidity, because the essential forms of the law have not been observed, or on that of the want of jurisdiction in the court entertaining them. The writ has never been employed to inquire into the correctness of the judgment rendered where the court had jurisdiction, and was therefore competent. Hence it has been held that the supervisory jurisdiction of the court on a certiorari must be restricted to an examination into the external validity of the proceedings had in the lower court. It cannot be exercised to review the judgment as to its intrinsic correctness, either on the law or on the facts of the case. The supervisory powers of the court should not be confounded with its appellate-jurisdiction. (Emphasis supplied).

D.

The Fundamental Illegality Exception

The courts have not hesitated to make exceptions to the general rule. One of these is the “fundamental illegality rule” first enunciated in State ex rel. McMorrow v. Hunt, supra, and culminating in our recent decision in Whitwell v. State, 520 S.W.2d 338 (Tenn.1975).

In Hunt the Court denied the common law writ. The issue was whether the lower court was “acting illegally.” Without defining that phrase, the Court said:

[W]e think it clear that the common law writ . . . may not be resorted to for the correction of technical or formal errors, not affecting jurisdiction or power, or for the correction of defects that are not radical, amounting to an illegality that is fundamental, as distinguished from an irregularity. (Emphasis supplied). 137 Tenn. at 249, 192 S.W. at 933.

Hunt stressed that “[a]n appeal is adequate for the remedying of errors of that sort [fact and law].” Id. at 250,192 S.W. at 933. No fundamental error was found. Hunt is among the first of numerous cases to stress the availability or adequacy of an appeal. (See ensuing section.)

In State v. Odom, 200 Tenn. 231, 292 S.W.2d 23 (1956), the trial judge reduced a jury conviction from first degree murder to murder in the second degree, overruled the state’s motion for a new trial and denied the state’s prayer for an appeal. The state petitioned for the common law writ. It should be observed that in the literal and conventional sense the trial court had not “exceeded the jurisdiction conferred” and was not acting “illegally" in the usual sense of the word. He merely committed a procedural error — an error of law.

This Court, however, granted the writ, holding that:

his action in reducing the degree of unlawful homicide from that found by the jury is illegal. 200 Tenn. at 235, 292 S.W.2d at 25.

Again the Court noted the absence of a “plain, speedy, or adequate remedy” by appeal.

In Taylor v. Continental Tennessee Lines, Inc., 204 Tenn. 556, 322 S.W.2d 425 (1959), relying upon Hunt, supra, and emphasizing a “failure to proceed according to the essential requirements of the law,” (emphasis supplied) Id. at 560, 322 S.W.2d at 427, the Court granted the common law writ, holding that the refusal of the trial judge to permit the filing of a plea in abatement

was contrary to law and in legal effect amounted to a denial to the defendants of their day in court.” (Emphasis supplied). 204 Tenn. at 560, 322 S.W.2d at 426.

In Medic Ambulance Service, Inc. v. McAdams, 216 Tenn. 304, 392 S.W.2d 103 (1965), the procedural background was that a trial judge had ordered the Union Railway Company to produce for inspection and copying the investigative file of its claims agent. Responding to the Company’s petition for the common law writ, the Court said:

We think the error here complained of amounted to an illegality which is fundamental, as distinguished from an irregularity, a technical or formal error not affecting jurisdiction or power; and, although not a final order or judgment, is, nevertheless, reviewable by the common law writ of certiorari. 216 Tenn. at 321, 392 S.W.2d 111.

Finally, in Whitwell, we granted the common law writ, relying upon the Hunt “fundamental illegality” rule in order to bar a second trial in violation of the defendant’s constitutional protection against double jeopardy.

Again, in Whitwell, the trial court was not acting “illegally” nor was it acting in “excess of its jurisdiction.” The court had ruled erroneously on a matter of law. It is just that simple. Had Whitwell been convicted as a result of a second trial, he would have had a right to appeal; but, absent our grant of the common law writ, he had no full, complete and adequate remedy. This follows from the fact that, absent our grant, he would have suffered the jeopardy of a second trial. In reaching our conclusion in Whitwell, we relied upon “a Missouri case, quoted with approval in Conners v. City of Knoxville, 136 Tenn. 428, 189 S.W.2d 870 (1916)”:

The statement that certiorari will not issue where either appeal or error goes, though frequently met with in textwrit-ers, and in some reports, is neither strictly true nor accurate. There are marked exceptions. Thus, where the exigencies of the case are such that the ordinary methods of appeal or error may not prove adequate, either in point of promptness or completeness, so that a partial or total failure of justice may result, then certio-rari may issue. (Emphasis supplied). 520 S.W.2d at 342.

Again, in the case at bar, the remedy of appeal is not just inadequate, it is non-existent.

E.

The Right of Appeal

In the preceding section, we noted various cases wherein heavy emphasis was placed upon the lack of an appellate remedy. Since certiorari is a discretionary writ, this consideration is critical.

I am captivated by the language of Justice John Haywood in Bob, a slave v. The State, 10 Tenn. 173 (1826):

The maxim of the law is, that there is no wrong without a remedy; and it is a particular rule, that a certiorari will lie to all inferior jurisdictions, (the proceedings of which cannot be corrected by writ of error,) to remove their proceedings into the superior court, to be there affirmed, or quashed, or otherwise corrected, as law and justice shall require. (Emphasis supplied). 10 Tenn. at 176.

In the century and a half since Bob was decided, the . pronouncement of one of Tennessee’s foremost early legal scholars, who fully understood the use of the common law writ, has been ignored and the result has been a distortion of the purposes of this remedial writ. I am content to abide Bob.

The instant petition for certiorari was prompted by the dismissal of the State’s appeal to the Court of Criminal Appeals; and, in turn, that dismissal was prompted by State v. Bonhart, 223 Tenn. 582, 448 S.W.2d 669 (1969), wherein it was held that the State had no right of appeal from the action of a trial judge in suppressing evidence, even though the Court recognized that the order of suppression “present[ed] difficulties in the way of proceeding further with [the] prosecution of the case.”

Hence, it is that the State’s only avenue of relief against a suppression order, plainly and palpably erroneous, is by the common law writ of certiorari.

F.

Decisional Law Supporting the Use of the Common Law Writ to Correct Interlocutory Judgments

There is ample precedent in our case law supporting the right of the appellate courts to entertain the common law writ to review interlocutory judgments in criminal action even though the trial judge has not acted illegally or in excess of his jurisdiction.

Thus, in State v. Dougherty, 483 S.W.2d 90 (Tenn.1972), where the trial judge “arbitrarily ignored the statutory and case law of this state,” the writ was granted. Involved was an order to the District Attorney General to disclose materials and information, including statements, reports of experts, the results of tests, etc. In granting the writ, the Court made this significant comment:

[I]t is apparent the State has no other plain, speedy or adequate remedy. In the event [defendants] should be convicted the question would be moot and in the event [they] were acquitted the State has no right of appeal. (Emphasis supplied). 483 S.W.2d at 92.

State v. Gant, 537 S.W.2d 711 (Tenn. Crim.App.1975), is precisely in point. The trial judge suppressed evidence obtained as a result of a warrantless search, thus effectively terminating the prosecution and leaving the state without a remedy. Relying upon Dougherty, the Court of Criminal Appeals granted the writ, reversed the trial judge and remanded. The Court said:

We think the learned veteran trial judge was without legal authority to suppress the evidence and to hold that the search violated the prisoner’s rights under the . . United States Constitution. (Emphasis supplied). 537 S.W.2d at 713.

In Gant the Court obviously equated the phrase “without legal authority” with the statutory phrases “exceeding the jurisdiction conferred” and “acting illegally.” In my view, the opinion would have been more soundly based had it been founded upon the plain and patent error of the trial judge coupled with the absence of an appellate remedy. Phrasing it another way, the state had lost a right not subject to recapture.

Also in point is State v. Wert, 550 S.W.2d 1 (Tenn.Crim.App.1977), where the trial judge suppressed evidence obtained by a warrantless search. The then Presiding Judge of the Court of Criminal Appeals wrote for the Court. The opening sentence:

We granted the state’s petition to determine whether or not the trial judge abused his discretion in suppressing the evidence . . . . (Emphasis supplied). 550 S.W.2d at 1.

Gant was decided by Judges Mitchell, Walker and Russell; Wert by Judges Walker, Duncan and Tatum. Thus, these veteran judges determined that the common law writ was appropriate to review an interlocutory order.

Finally, by dictum, in Hale v. State, 548 S.W.2d 878 (Tenn.1977), we held:

Counsel could have protected his client’s right to a proper preliminary hearing by filing a petition for common law certiora-ri and supersedeas with one of the judges of the Court of Criminal Appeals, and, if necessary, with a member of this Court.

This dictum was prompted by the fact that a preliminary hearing is “a critical stage in the prosecution of a criminal action and ... is mandated by statute,” and because it is a “pretrial type of arraignment where certain rights may be sacrificed or lost.” Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); McKeldin v. State, 516 S.W.2d 82 (Tenn.1974).

III.

Conclusion

I have no quarrel with the general rule that the common law writ should be restricted to those cases where an inferior tribunal has exceeded the jurisdiction conferred or is acting illegally and there is no other plain, speedy or adequate remedy. I agree, as a general proposition that it does not normally lie to inquire into the correctness of the judgment where the Court has jurisdiction. I further agree that piecemeal review, as a general rule, is to be shunned.

I am persuaded, however, that there are, and must be, exceptions to the general rule. I will not attempt to catalog them; however, they would include, but not be restricted to, the following:

a. Where the ruling of the Court below represents a fundamental illegality. State ex rel. McMorrow v. Hunt, supra; Medic Ambulance v. McAdams, supra; Whitwell v. State, supra.
b. Where the ruling constitutes a failure to proceed according to the essential requirements of the law. Taylor v. Continental Tenn. Lines, supra.
c. Where the ruling is tantamount to the denial to either party of a day in •court. Taylor v. Continental Tenn. Lines, supra.
d. Where the action of the trial judge was without legal authority. State v. Gant, supra.
e. Where the action of the trial judge constituted a plain and palpable abuse of discretion. State v. Wert, supra.
f. Where either party has lost a right or interest that may never be recaptured. State v. Hale, supra; State v. Dougherty, supra.

In entertaining and acting upon this discretionary writ, in my view, a critical consideration is the existence of an effective, available and expeditious appellate remedy. The mere fact that an appeal may ultimately afford a vehicle for the presentation of the errors asserted may well be of no significance. The right or interest sought to be protected may be eroded or devitalized notwithstanding the successful pursuit of an appeal. Again, the ultimate test must be whether, absent the use of the common law writ, either party to a criminal action loses a right or forfeits an interest that can never be recaptured.

' I am unable to comprehend the soundness of any judicial reasoning or authority under which the doors of this constitutional court of last resort are barred to a litigant whose constitutional or statutory rights have been frustrated in the trial court.

To say that this Court may not intervene by common law writ except when the lower court acts illegally or in excess of its jurisdiction, in the conventional sense of these terms, is to say that under our system there may be wrongs without remedies. This I am unwilling to do. Such a position frustrates the administration of criminal justice.

In the case at bar, the State’s interest has been destroyed. This is fundamental error and a failure to proceed according to the essential requirements of the law. The State has no other remedy.

The writs of certiorari and supersedeas are granted. The order of the trial court is vacated and this cause is remanded for trial.

Originally, this opinion was released over the signature of the undersigned member of the Court. Subsequently, respondent filed a petition for a rehearing by the entire Court. Pursuant to this motion the entire Court has considered the matter and concurs in tie original opinion with this paragraph being substituted for the last paragraph of the former opinion. On remand, the respondent is privileged to present further proof and argument in support of his motion to suppress and to assign appropriate errors upon any ensuing appellate review.

      . Carriers have full authority to make such inspections. See Rule 24, Civil Aeronautics Board, Regulation 96; United States v. Ford, infra; and United States v. DeBerry, infra. Tariffs filed by carriers pursuant to 49 U.S.C. § 1373(a) confer the right to inspect and the practical effect is the consent of the shipper to the search.

      .The early cases tend to establish that these sections applied to the circuit courts. See Staples v. Brown, 113 Tenn. 639, 85 S.W. 254 (1905), and Cockrill v. Peoples Savings Bank, 155 Tenn. 342, 293 S.W. 996 (1927). Justice Green, in Cockrill, held that the appellate courts have the same jurisdiction to grant cer-tiorari to correct the judgment of inferior courts that the circuit court has to award the writ to correct the errors of inferior tribunals.

      . Article VI, Sec. 10, Constitution of Tennessee relates solely to the “Judges or Justices of the Inferior Courts of Law and Equity.” This provision was intended as a guarantee of the continuance of a power these judges already possessed. Tennessee Central Railroad Co. v. Campbell, supra.

      . See 14 Am.Jur.2d, Certiorari, Sec. 1 (1964).

      . See Helton v. State, 194 Tenn. 299, 250 S.W.2d 540 (1952).

      . In the context of Hale, we should have noted that the petition for common law certiorari should be addressed initially to the trial court.


source: Caselaw Access Project

author: HARBISON, Justice.

license: Public Domain

text:
    Angeline Denise Taylor CHILDRESS b/n/f William Taylor, Petitioner-Plaintiff, v. Michael Lynn CHILDRESS, Respondent-Defendant.
    Supreme Court of Tennessee.
    Aug. 28, 1978.

      A. D. Walker, Jr., Dyersburg, for petitioner-plaintiff.
    J. Thomas Caldwell, Ripley, for respondent-defendant.
   OPINION

HARBISON, Justice.

In this case petitioner seeks to maintain a negligence action for personal injuries against her husband for an antenuptial tort. She was injured while he was operating an automobile on February 22,1975. The parties were married on June 14, 1975. Suit was instituted about seven and one-half months later, on January 31, 1976.

Both the trial court and the Court of Appeals held that the action was barred under the rule of interspousal immunity and that respondent was entitled to summary judgment.

We granted certiorari to give further consideration to the issue. We emphasize at the outset that this case by no means involves the entire subject of interspousal immunity in tort but is limited specifically to the issue of torts committed before the parties entered into the marriage relationship.

We recognize, as did the courts below, that this subject has frequently been litigated in this state. Heretofore this Court has consistently construed the Married Women’s Emancipation Act, T.C.A. § 36-601, first adopted in 1913, as not altering in any sense the common-law rules prohibiting personal tort actions between spouses. With regard to the specific subject at hand, antenuptial torts, the Court has twice so construed the statute, and has held that any claimed right of action in tort between the parties existing upon the date of their marriage was extinguished when they entered into that relationship. Monk v. Ramsey, 223 Tenn. 247, 443 S.W.2d 653 (1969); Raines v. Mercer, 165 Tenn. 415, 55 S.W.2d 263 (1932). Both cases involved personal injuries arising out of an automobile accident. If a different rule is to be adopted in the instant case, therefore, it will be necessary to overrule those two decisions.

As stated, in entering upon this inquiry, we limit our consideration entirely to the subject of prenuptial torts, because, both practically and conceptually, it seems to us that there may be differentiating factors between them and personal injury claims between spouses arising after they have entered into their marriage. With respect to post-nuptial torts, it has been consistently held in this state that no such right of action can exist or come into being because of the unique relationship between the parties. See e. g., Wooley v. Parker, 222 Tenn. 104, 432 S.W.2d 882 (1968); Hance v. Haun, 216 Tenn. 176, 391 S.W.2d 621 (1965); Gordon v. Pollard, 207 Tenn. 45, 336 S.W.2d 25 (1960); Prince v. Prince, 205 Tenn. 451, 326 S.W.2d 908 (1959). Further, it is obvious that many types of conduct that could be found to be tortious in some settings might not be so considered in the intimacy or privacy of the home.

It has been recognized that once the marriage relation has been terminated by divorce, tort actions can be maintained between the former spouses for injuries inflicted after the entry of the divorce decree. Brown v. Selby, 206 Tenn. 71, 332 S.W.2d 166 (1960). There a man murdered his former wife, and an action for her wrongful death was allowed, even though the beneficiaries were children of the parties, the theory of the Tennessee Wrongful Death Act being that the right of action was that of the decedent which survived to her nearest kin.

It is difficult to distinguish the rights of the parties in the case of an antenuptial tort from those of persons who have been divorced and are no longer married. At the time of the alleged negligent act involved in the present case, there was no impediment whatever to the claim of the petitioner. Had she filed suit and obtained judgment before her marriage, we think that it would hardly be contended that the marriage itself extinguished the judgment.

It is, of course, possible to conceive of types of tort actions which might be so inconsistent with the marriage relationship that the very fact that the parties obtained a marriage license and went through the solemnities required by Tennessee law to enter into the marital status, T.C.A. §§ 36-401 et seq., could be said to effect at least an implied, if not an express, release of the tort claim. For example, we doubt that the courts would look with much favor upon an action for breach of promise of marriage or of seduction in cases where the parties had later married.

The Tennessee Married Women’s Emancipation Act, T.C.A. § 36-601, is very broadly worded. In sweeping terms it removed the disability of coverture and its effects upon property rights of women. It was a major piece of legislation and had significant impact upon many pre-existing rules of the law of domestic relations, contracts, property and procedure. We are not inclined to give it a narrow or restrictive interpretation. Robinson v. Trousdale County, 516 S.W.2d 626 (Tenn.1974).

The principal portion of the statute is as follows:

“Married women are fully emancipated from all disability on account of cover-ture, and the common law as to the disability of married women and its effects on the rights of the property of the wife, is totally abrogated, except as set out in §§ 36-602, 36-603, and marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition, or disposition of property of any sort, or as to her capacity to make contracts and to do all acts in reference to property which she could lawfully do, if she were not married, but every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy and dispose of, all property, real and personal, in possession, and to make any contract in reference to it, and to bind herself personally, and to sue and be sued with all the rights and incidents thereof, as if she were not married.” T.C.A. § 36-601.

A right of action arising from negligence is, in a sense, a property right; it is a chose in action, a form of intangible personal property. It seems to us that under the foregoing statute the marriage of a woman should not take away a property right of this nature, any more than it would extinguish a promissory note or other contractual indebtedness owed by one affianced party to the other.

Shortly after the passage of the Married Women’s Emancipation Act it was held that a tort claim by the wife against a third party belonged to her alone, and that she was entitled to pursue the action without joinder of her husband, as previously required by procedural rules. Knoxville Ry. & Light Co. v. Vangilder, 132 Tenn. 487,178 S.W. 1117 (1915).

In the case of Pearce v. Boberg, 89 Nev. 266, 510 P.2d 1358 (1973), it was held that a claim for personal injury by a woman for prenuptial tort was her separate property and was not extinguished by her marriage to the alleged tortfeasor. Our examination of the language of the Tennessee statute constrains us to the view that this is the effect of its provisions, despite its interpretation to the contrary in earlier cases.

We recognize, as did the Supreme Court of Nevada, that the broad subject of inter-spousal immunity is a complex one. Comprehensive legislative study and possible revision of statutes dealing with tenancy by the entirety and the rights of judgment creditors and debtors, particularly with respect to exempt property, may need to be considered before general removal of inter-spousal immunity should be undertaken. With respect to personal injury claims based upon negligence existing prior to marriage, however, we do not believe that it can fairly be said that no “right of action” ever came into existence, nor can we read the language of the Emancipation Act to do anything other than preserve, rather than permit destruction of, such claims.

In this incident respondent had liability insurance to indemnify against the particular risk. However, we are not disposed to fashion a rule of law which would depend upon the existence or non-existence of insurance coverage, nor are we persuaded that this should be a determinative consideration from the standpoint of legal theory. Prince v. Prince, 205 Tenn. 451, 326 S.W.2d 908 (1959).

We do not readily depart from previous construction of an important statute. We recognize that departure or change is frequently better accomplished by legislative action than by the courts. See Hamby v. McDaniel, 559 S.W.2d 774 (Tenn. 1977); Jones v. Black, 539 S.W.2d 123 (Tenn.1976). Nevertheless from a re-examination of the language of T.C.A. § 36-601, we believe that it was intended to preserve a pre-existing right of action such as that involved here. Accordingly the decisions to the contrary in Monk v. Ramsey and Raines v. Mercer, supra, are overruled.

The judgment of the courts below are reversed and the cause is remanded to the trial court for further proceedings consistent herewith. Costs incident to the appeal are taxed to the respondent; all costs in the trial court will abide the result there.

HENRY, C. J., COOPER and FONES, JJ., and QUICK, Special Judge, concur.

      . See O'Grady v. Potts, 193 Kan. 644, 396 P.2d 285 (1964) (negligence claim constitutes chose in action as such is separate property of unmarried woman, not abolished upon her marriage). Cf. Hux v. Russell, 138 Tenn. 272, 276, 197 S.W. 865 (1917) (claim for tortious damage to realty held to constitute a chose in action and to pass as intestate personal property).


author: COOPER, Justice.

text:
    Richard H. FULTON, Metropolitan County Mayor, Glenn Ferguson, Metropolitan Trustee, Jim Ed Clary, Metropolitan Assessor of Property (of the Metropolitan Government of Nashville and Davidson County), and the Metropolitan Government of Nashville and Davidson County, Petitioners, v. STATE BOARD OF EQUALIZATION (OF TENNESSEE), Commerce Union Bank, United American Bank of Nashville, First American National Bank of Nashville, Respondents.
    Supreme Court of Tennessee.
    Aug. 28, 1978.

      William F. Howard, James D. Luther, Robert G. Wheeler, Jr., Dept, of Law of the Metro Government of Nashville and Davidson County, Nashville, for petitioners.
    Robert J. Warner, Jr., Mary A. Calvani, Dearborn & Ewing, Brooks McLemore, Jr., Atty. Gen., Nashville, for respondents.
   COOPER, Justice.

OPINION

This case is before us to determine whether a petition filed in the chancery court by the Metropolitan Government of Nashville and Davidson County was timely filed.

This dispute began when the Metropolitan Government, the petitioner before this court, made a tax assessment of the intangible personal property of the respondent, Commerce Union Bank, and two • other Nashville banks. The banks, questioning the correctness of the assessment, appealed, first to the Davidson County Board of Equalization, and then to the Assessment Appeals Commission (Commission). The Commission is a body created by the State Board of Equalization (Board), to which the Board has delegated its duties and jurisdiction. See T. C. A. § 67-831(b). Under T. C. A. § 67-831(b)(9) and (10),

(9) [ajctions taken by the assessment appeals commission [are] final as if the actions [had been] taken by the state board of equalization; provided, however, that the state board of equalization may, in its sole discretion, within thirty (30) days of any final action taken by the assessment appeals commission, enter an order requiring a review of the action of the assessment appeals commission by the state board of equalization, in which the action shall not become final until the state board of equalization has rendered its final decision on the matter. .
(10) If the state board of equalization [does] not exercise its discretion to review &• matter heard by the assessment appeals commission, the assessment appeals commission [issues] a certificate of assessment or other final certificate of its actions, which certificate [is] subject to judicial review in the same manner as are final actions of the state board of equalization.

On April 7, 1977, the Commission ruled in favor of the banks, and issued certificates of assessment with respect to the banks’ property. The certificates contained the provisos that they would not be final for thirty days, and then only if the Board had not entered an order requiring review. On April 28,1977, the petitioner wrote to David Whitefield, the executive secretary of the Board, seeking a review of the Commission’s action by the Board. There is no indication in the record that the petitioner ever received any direct response from Mr. Whitefield. It appears, though that the petitioner did receive a copy of the following letter, dated May 4, 1977, which was sent by Whitefield to an attorney for the respondent:

This is to advise you that the Metropolitan Government of Nashville and Davidson County has requested the State Board of Equalization to review the decision of the Assessment Appeals Commission. .
As you know, the State Board has the discretion to review actions of the Assessment Appeals Commission.
I shall place this matter on the agenda for the next meeting of the Board. I expect to call a meeting of the Board within the next three or four weeks. .
In view of this request, the decision of the Assessment Appeals Commission shall not be considered final until the State Board of Equalization decides whether or not to review this matter. .

The next meeting of the Board, of which all the parties were notified, took place on June 6, 1977. At that meeting, the Board declined to review the Commission’s decision. The parties were notified of the result by letter dated June 27, 1977.

On August 8, 1977, the petitioner filed a petition for judicial review in chancery court. The respondent filed a motion to dismiss, contending that the petition was not timely. Under T. C. A. § 4-523(b), petitions for the judicial review of a final agency decision must be filed within sixty days of that decision. The respondent argued that the final decision subject to review in this case was the certificate issued by the Commission, which, by its terms, became final on May 7, 1977, and that the period in which judicial review could have been sought expired sixty days from that date, on July 6th. The chancellor denied the respondent’s motion, ruling that the sixty days had begun to run on June 27, 1977, when the parties were notified of the Board’s refusal to review the Commission’s action. The chancellor did, however, allow an interlocutory appeal on the question.

On appeal, the Court of Appeals reversed and dismissed, on two grounds. First, the court held that, under the plain language of T. C. A. § 67 — 831(b)(9), the decision of the Commission had become final on May 7, thirty days after it had been handed down. The court reasoned that, while the effectiveness of the Commission’s action could have been stayed by an order of the Board requiring review, such an order was never entered. The letter from Whitefield, quoted above, does indicate that the effectiveness of the Commission’s decision had, in some manner, been stayed. However, it does not purport to be an “order requiring review” under the terms of the statute, nor could it be one, as such an order must be issued by the Board, and is beyond the authority of its executive secretary. Except for such an order, there is no manner by which either the Board or its executive secretary may prevent an action of the Commission from becoming final. Therefore, the Court of Appeals found that the period during which the Commission’s order was subject to judicial review expired on July 6th, sixty days after it had become final. Secondly, the court found that, even if it were assumed that the Board had taken jurisdiction of the case, the period for review ended sixty days after the final decision of the Board on June 6th — i. e. August 5th — not sixty days after the parties were notified. Therefore, even on this view, the petition was three days late.

We agree with the reasoning of the Court of Appeals, in so far as it is predicated on the complete lack of authority on the part of the Board’s executive secretary to stay the effectiveness of an action by the Commission, and the lack of authority on the part of the Board itself to do so without issuing an “order requiring a review of the action” under T. C. A. § 67-831(b)(9). However, we believe that the Court of Appeals failed to consider properly the impact of T. C. A. § 67-831(b)(10) on the procedure followed in this case. As we noted previously, this section of the statute provides that

[i]f the state board of equalization [does] not exercise its discretion to review a matter heard by the assessment appeals commission, the assessment appeals commission shall issue a certificate of assessment . . . . [emphasis supplied]

It is the issuance of the certificate of assessment that gives the parties notice that the assessment is final and marks the beginning of the time period given the parties to seek review of the assessment in the chancery court. It should also be noted that while not necessarily designed to do so, an obvious effect of issuing a definite, unconditional order at the time the assessment by the commission becomes final is to eliminate the possibility of confusion as to the beginning of the time period given the parties to seek judicial review of the assessment.

In the instant case, the Commission did not issue the certificate of assessment called for by T. C. A. § 67-831(b)(10), but issued a conditional certificate of assessment at the time it made its ruling. We find no statutory authority for the Commission’s action. Neither do we see any justification for putting a judicial stamp of approval on the issuance of a conditional certificate in the face of the clear directive by the legislature that the certificate of assessment issue when the assessment becomes final — especially where, as in this case, a judicial broadening of the authority of the Commission would have the effect of depriving a party of a judicial review of the merits of the assessment. Therefore, we hold that the conditional certificate of assessment issued by the Commission on April 7, 1977, was of no effect. It results that there has been, as yet, no final certificate of assessment issued by the Commission. As this certificate is a prerequisite to judicial review, see T. C. A. § 67-831(b)(10), the petition must be dismissed. The dismissal is, of course, without prejudice to the right of the petitioner to seek judicial review when the Commission issues the final certificate of assessment.

The action of the Court of Appeals in dismissing the instant petition for judicial review is affirmed, with the qualifications set forth herein. Costs will be taxed to the petitioner.

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


author: HENRY, Chief Justice. HENRY, Chief Justice.

text:
    Carmen D. HARRISON and wife, Louise Harrison, Appellants, v. Alfred L. SCHRADER, Appellee, and State of Tennessee, Intervenor-Appellee.
    Supreme Court of Tennessee.
    May 15, 1978.

      Lloyd C. McDougal, III, James F. Schaef-fer, Schaeffer & McDougal, Memphis, for appellants.
    John R. Moss, Moss & Benton & Wallis, Jackson, for appellee.
    Brooks McLemore, Jr., Atty. Gen., C. Hayes Cooney, Chief Deputy Atty. Gen., Nashville, for intervenor-appellee.
   OPINION

HENRY, Chief Justice.

This malpractice action raises the question of the constitutionality of Section 23-3415(a), T.C.A., the statute of limitations provision of the Medical Malpractice Review Board and Claims Act of 1975. More specifically, the appellants assert that this section violates the equal protection guaranties of both the United States and Tennessee Constitutions and deprives them of the right to redress of injury secured by our state constitution.

The complaint states that, after performing a vasectomy upon Mr. Harrison in 1972, the appellee, Dr. Schrader, informed him that as a result of the operation he would be sterile. On December 18,1975, however, Harrison, to his consternation and her dismay, learned that his wife was pregnant. A second physician was consulted, and tests revealed that Harrison was not sterile. On July 29,1976, he underwent a second vasectomy, during which it was discovered that the first surgery had been negligently performed. This action, brought by Harrison and his wife and based upon common-law negligence and breach of contract, was filed on September 22, 1976.

The appellee moved to dismiss the complaint on the ground that it had been filed ,- more than three years after the alleged negligent act or omission and was, therefore, barred by Section 23-3415, T.C.A. In response, the appellants attacked the constitutionality of the Medical Malpractice Review Board Act, particularly the Act’s statute of limitations, and, pursuant to Rule 24.04, T.R.C.P., gave notice to the Attorney General that the statute’s validity was being questioned.

Upon intervention by the Attorney General and oral argument on the motion, the trial court entered an order holding “that T.C.A. 23-3415 does not violate the Constitutions of the State of Tennessee or of the United States of America, and that this action is therefore barred by the three-year provision of said statute and should be dismissed.”

L

Section 23-3415(a) reads as follows:

23-3415. Statute of limitations — Exceptions. — (a) The statute of limitations in malpractice actions shall be one (1) year as set forth in § 28-304; provided, however, that in the event the alleged injury is not discovered within the said one (1) year period, the period of limitation shall be one (1) year from the date of such discovery; provided further, however, that in no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant in which case the action shall be commenced within one (1) year after discovery that the cause of action exists; and provided still further that the time limitation herein set forth shall not apply in eases where a foreign object has been negligently left in a patient’s body in which case the action shall be commenced within one (1) year after the alleged injury or wrongful act is discovered or should have been discovered. (Emphasis supplied.)

This enactment was passed as a part of Chapter 299, Public Acts of 1975, designed by the legislature to meet the so-called “medical malpractice crisis” of the late 1960’s and early 1970’s. On its face, the section recognized the applicability of the general statute of limitations (Sec. 28-304, T.C.A.) and the rule, first stated by this Court in Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974), that in malpractice actions the statute of limitations begins to run from the date the injury is, or should have been, discovered. The legislature, however, proceeded to place an absolute three-year limit upon the time within which malpractice actions, with two exceptions, could be brought. It is this limit, applicable only in medical malpractice actions, that appellants challenge as unconstitutional.

It should be noted at the outset that this is not a conventional statute of limitations. Rather it is an outer limit or ceiling superimposed upon the existing statute (Sec. 28-304, T.C.A.). Suits must be brought within one year from and after the date of the injury or damage, or the date such injury or damage was discovered, subject to the three-year ceiling fixed by Sec. 23-3415(a). See Watts v. P.utnam County, 525 S.W.2d 488 (Tenn.1975).

II.

Appellants attack the statute on two grounds. In their first assignment of error, they assert that Section 23-3415 denies them, and other individuals similarly situated, equal protection of the laws, in violation of the Fourteenth Amendment of the United States Constitution and Article XI, Sec. 8 of the Tennessee Constitution.

They argue that the statute applies only to a certain class of individuals, “health care providers,” offering them a favored status under the law and creating an arbitrary and unreasonable classification. This, they assert, is contrary to the general statute of limitation applicable to personal injury actions, as set forth in Section 28-304, T.C.A.

An initial problem to be faced in determining whether a statute of limitations applying only in the case of “health care providers” constitutes a denial of equal protection is the question of what standard of review must be utilized in ascertaining the statute’s constitutionality.

In their brief, appellants assert that “[t]his favored status enjoyed by physicians, or the other side of the coin, the disfavored status suffered by victims of physicians, must be subjected to careful scrutiny.” (Emphasis supplied.) If by this statement appellants urge that we adopt a test of strict scrutiny, we must refuse to do so.

A classification will be subject to strict scrutiny only when it impermissibly interferes with the exercise of a fundamental right (e. g., voting, interstate travel) or operates to the peculiar disadvantage of a suspect class (e. g., alienage, race). San Antonio Independent School District v. Rodriguez, 411 U.S. .1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Neither of these factors is present here.

All other classifications have generally been subjected to the rational basis test. Under this standard, if some reasonable basis can be found for the classification, or if any state of facts may reasonably be conceived to justify it, the classification will be upheld. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).

As recently reiterated by the United States Supreme Court in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520, 525 (1976), the classification will be upheld if it “rationally furthers the purpose identified by the State.”

This inquiry employs a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary. (Citation omitted.) Such action by a legislature is presumed to be valid. Id.

In determining the validity of a classification under Art. XI, Sec. 8 of our state constitution, a similar test has been applied. As stated by the Court in City of Chattanooga v. Harris, 223 Tenn. 51, 56-57, 442 S.W.2d 602, 604 (1969),

[i]t is elemental in our law that the keystone in determining the constitutionality of a statute under this Section of the Constitution is reasonableness of classification.

The test to be applied has been set forth in numerous cases. The classification must rest upon a reasonable basis. If it has') a reasonable basis, it is not unconstitutional merely because it results in some inequality. Reasonableness depends upon the facts of the case and no general rule can be formulated for its determination. Estrin v. Moss, 221 Tenn. 657, 430 S.W.2d 345 (1968); Motlow v. State, 125 Tenn. 547, 145 S.W. 177 (1912).

The burden of showing that a classification is unreasonable and arbitrary is placed upon the individual challenging the statute; and if any state of facts can reasonably be conceived to justify the classification or if the reasonableness of the class is fairly debatable, the statute must be upheld. Swain v. State, 527 S.W.2d 119 (Tenn.1975); Estrin, supra; Phillips v. State, 202 Tenn. 402, 304 S.W.2d 614 (1957).

Before the classification will be held to violate the equal protection guaranty, it must be shown that it has no reasonable or natural relation to the legislative objective. City of Chattanooga, supra; Phillips, supra. In addition, the statute must apply alike to all who fall within, or can reasonably be brought within the classification. Massachusetts Mutual Life Insurance Co. v. Vogue Inc., 54 Tenn.App. 624, 393 S.W.2d 164 (1965).

In the case of Dobbins v. Terrazzo Machine & Supply Co., 479 S.W.2d 806 (Tenn. 1972), this Court, in the course of deciding whether the time for instituting suit was governed by Sec. 28-304, T.C.A., or See. 50-914, was faced with an argument similar to that advanced here. Rejecting the defendant’s contention that the classification employed violated Art. XI, Sec. 8, the Court stated:

At the time of passage of the statutes in question here there was indubitably a valid reason for the distinction made with respect to maturity of a cause of action as between those persons within the ambit of the Workmen’s Compensation law and other persons. 479 S.W.2d at 810.

Applying the standard of review used under the federal and state constitutions, we cannot say that there was no reasonable or rational basis for the distinction made between actions for medical malpractice and those for personal injuries caused by other means or for the separate and distinct treatment accorded “health care providers.”

At the time the legislature passed the statute of limitations eventually codified as Sec. 23-3415(a), T.C.A., this state and the nation were in the throes of what was popularly described as a “medical malpractice insurance crisis.” Because of alleged increasing numbers of claims, insurance companies had grown reluctant to write medical malpractice policies. Where policies were available, premiums had risen astronomically.

The legislature could have seen in this situation a threat not only to the medical profession and its insurers, but also to the general welfare of the citizens of this state. As liability costs skyrocketed, so would the cost of health care. Physicians would be encouraged to cease practice or contemplate early retirement, and the number of available physicians would decrease. The practice of “defensive medicine,” spawned by fear of costly legal actions, would lead to a lower quality of health care in general. These considerations may or may not have been valid; however, it is apparent that they were accepted by the legislature and formed the predicate for its action.

In addition, it could be argued that to the extent that safe estimates required by actuarial uncertainty, aggravated by the extended period during which a physician could be subject to potential liability, contributed to the increase in malpractice insurance costs, “it is understandable that a legislature intent upon halting such phenomenal increases would seek some method to increase the certainty of such estimates,” i. e., an absolute three-year limit on the time within which actions could be brought. Note, Malpractice in Dealing with Medical Malpractice ??, 6 Mem.St.L.Rev. 437, 459 (1976).

As the Arizona Court of Appeals stated in Landgraff v. Wagner, 26 Ariz.App. 49, 546 P.2d 26, 32 (1976), appeal dismissed 429 U.S. 806, 97 S.Ct. 40, 50 L.Ed.2d 67 (1976), when faced with an equal protection challenge of the Arizona statute of limitations in medical malpractice actions:

We find that the importance to the public of good health care and the problems which arise when malpractice claims are brought against health providers after the passage of many years constitute sufficient reasons for the legislature to place them in a separate classification for this purpose.

This Court cannot say that there is no reasonable basis for the separate classification of health care providers or that this classification bears no reasonable relation to the legislative objective of reducing and stabilizing insurance and health costs and protecting the public as a whole. Indeed, at the time Sec. 23-3415(a) was passed, “there was indubitably a valid reason for the distinction made” by the statute.

III.

As their second assignment of error, appellants assert that Section 23-3415 “deprives persons such as plaintiff of an opportunity of redress of an injury done his person in violation of Article I, Section XVII of the Constitution of the State of Tennessee.”

Article I, Sec. 17 reads in part as follows: Open courts — Redress of injuries — Suits against the State. That all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.

This Section of our constitution has been interpreted by this Court as a mandate to the judiciary and not as a limitation upon the legislature. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844 (1920).

In Barnes v. Kyle, 202 Tenn. 529, 535-536, 306 S.W.2d 1,4 (1957), the Court noted:

“The constitutional guaranty providing for open courts and insuring a remedy for injuries does not guaranty a remedy for every species of injury, but applies only to such injuries as constitute violations of established law of which the courts can properly take cognizance.” (Quoting from 16A C.J.S. Constitutional Law § 709c, p. 1214.)

Statutes providing for the limitation of actions are, apart from equitable principles, “exclusively the creatures of the legislative branch of government.” Carney v. Smith, 222 Tenn. 472, 477, 437 S.W.2d 246, 248 (1969). They are justified on the basis of policy; and

[t]he legislative body, in enacting such legislation, may weigh the conflicting interests between one person’s right to enforce an otherwise valid claim and another person’s right to be confronted with any claim against him [within a suitable time]. Hargraves v. Brackett Stripping Machine Co., 317 F.Supp. 676, 682 (E.D. Tenn.1970) (discussing the constitutional soundness of the decision of this Court in Jackson v. General Motors Corp., 223 Tenn. 12, 441 S.W.2d 482 [1969]).

In Dunn v. Felt, 379 A.2d 1140 (Del.Super.1977), the Superior Court of Delaware addressed the plaintiff’s contention that Delaware’s three-year statute of limitations in medical malpractice actions violated a provision of the Delaware Constitution similar to that in the Tennessee Constitution.

The plaintiffs, I think, are mistaken in their notion of what [the statute of limitations] does. It does not eliminate a remedy for a civil wrong; it simply provides that after 3 years no cause of action can arise. The General Assembly has the power to create new rights and abolish old ones so long as they are not vested. (Citation omitted.)
Some of the plaintiffs’ arguments indicate a misconception of the nature of the statutes of limitation. Commenting upon them the United States Supreme Court in Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945) said:
“Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles , They are by definition arbitrary . [representing] a public policy about the privilege to litigate.” 379 A.2d at 1141.

As its first sentence indicates, Sec. 23— 3415(a) is merely superimposed upon Sec. 28-304. The discovery rule of the latter statute still applies subject only to the three-year ceiling, which is unrelated to the accrual of the cause of action. See Watts v. Putnam County, supra.

As we said in Watts:
We do not necessarily agree philosophically with the results we reach. We can only construe the statute as it is, not as we think it ought to be. 525 S.W.2d at 494.

Undeniably some hardship results from the application of this statute, but it is not the role of this Court to pass upon the wisdom or lack thereof of the legislation under review. In the absence of constitutional infirmity such matters are ones of policy solely for the legislature. See Har-graves v. Brackett Stripping Machine Go., supra.

We do not retreat from our holding in Teeters, supra, or McCroskey, supra; but in this particular situation we bow to the will of the legislature.

The determination of the trial court that Section 23-3415 does not violate the Constitutions of the United States and Tennessee is

Affirmed.

FONES, COOPER and HARBISON, JJ., and QUICK, Special Justice, concur.

OPINION ON PETITION TO REHEAR

HENRY, Chief Justice.

Appellants have filed a petition requesting that the Court rehear this appeal and recede from our former action upon the ground

that the Court has not heretofore rendered an opinion upon the issue of whether or not the Tennessee Medical Malpractice Review Board and Claims Act, T.C.A. 23-3401, et seq., and particularly T.C.A. 23-3415, providing a three year limitation on medical malpractice actions, may be applied retroactively to foreclose appellants’ cause of action before it ever accrued.

It is true that our original opinion did not address this issue and did not render an opinion thereon. The matter of retroactive application was not raised in the trial court nor was it raised here.

It was the major thrust of appellants’ position in this Court that § 23-3415, T.C.A. was unconstitutional in that it arbitrarily and without a reasonable basis violates the equal protection guarantees of both the state and federal constitutions and deprives litigants of the right to redress an injury in violation of our state constitution. We responded to the issues thus presented for our consideration. Counsel may not be heard, at this late date, to revive this action by the injection of a new and different issue.

Rule 32 of this Court provides, in pertinent part:

A rehearing will be refused where no new argument is made, and no new authority adduced, and no material fact is pointed out as overlooked.

The petition does not purport to make any new argument nor does it cite any new authority relating to the issues raised in this Court under the assignments. Nor does it point out any material fact overlooked. Rather it merely raises a new and different issue. In civil cases, this Court will not, as a general rule, pass upon any question raised for the first time on appeal. Shelton v. Martin, 180 Tenn. 454, 176 S.W.2d 247 (1943); nor will we consider on rehearing that which was not at issue in the original hearing. Nashville v. Wilson, 88 Tenn. 407, 12 S.W. 1082 (1848).

Under the rules governing the practice and procedure of this Court, and our consistent decisional law, we have no choice but to deny the petition. We caution, however, that this case does not provide an answer to the question of the retroactive application of the statute. The resolution of this issue must await a controversy wherein it is properly raised.

FONES, COOPER and HARBISON, JJ., and QUICK, Special Justice, concur.

      . We note here, as we did in Watts v. Putnam County, 525 S.W.2d 488 (Tenn. 1975), that this statute of limitations is one of several passed in recent years in response to the promptings of special interest groups, imposing different periods of limitation on different individuals and classes (e. g., contractors, architects, manufacturers and sellers).

      . Art. XI, Sec. 8, of the Tennessee Constitution states in pertinent part: “The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunitie, [immunities] or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law.”

      . Sec. 28-304, T.C.A., provides that actions “for injuries to the person . . . shall be commenced within (1) year after the cause of action accrued.” This Court has held that the cause of action accrues and the statute begins to run when the injury occurs or is discovered or when in the exercise of reasonable care should have been discovered. McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d 487 (Tenn.1975), thereby adopting what is commonly known as the “discovery rule.”

      .For a discussion of the standard of review to be applied in equal protection challenges to medical malpractice legislation, see Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications, 55 Tex.L.Rev. 759, 769-784 (1977); see also Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399 (1976).

      . A special report of a committee established under the Secretary of Health, Education and Welfare, issued in 1973, indicated that between 1960 and 1970 insurance premiums rose on a national average of 540.8% for physicians and 949.2% for surgeons. In Tennessee alone the increase of insurance premiums between 1968 and 1975 was approximately 700%. See Note, Malpractice in Dealing with Medical Malpractice??, 6 Mem.St.L.Rev. 437 (1976).

      . In 1973 the national average of the amount paid by a patient to cover the cost of malpractice insurance was 30 cents per doctor per visit; by 1975 this had risen to $1.24. Medical Briefs, Malpractice Rates Hurting Patients, 70 J.Tenn.Med.A. 57 (1977).

      . Del.Const. Art. I, Sec. 9, which provides in part that “every man for an injury done him in his . person . . . shall have remedy by the due course of law.”


author: SHRIVER, Presiding Judge.

text:
    Charles N. McKINNEY, Plaintiff-Appellant, v. EDUCATOR & EXECUTIVE INSURERS, INC., Defendant-Appellee and Third-Party Plaintiff, v. Johnny A. CLOUSE, Jr., Third-Party Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section.
    Aug. 26, 1977.
    Certiorari Denied by Supreme Court April 24, 1978.
    Bart C. Durham, III, Nashville, Tenn., for plaintiff-appellant.
    Thomas M. Donnell, Jr., Stewart, Estes & Donnell, Nashville, Tenn., for third-party plaintiff, Educator & Executive Insurers, Inc.
    Grant W. Smith, Nashville, Tenn., for third-party defendant-appellee, Johnny A. Clouse, Jr.
   OPINION

SHRIVER, Presiding Judge.

This is a suit on an insurance policy, the original complaint being as follows:

“COMPLAINT

The plaintiff, Charles H. McKinney, would respectfully show unto the Court:

1. He is a resident of the State of Tennessee and the owner of a 1966 Jacq-uar XKE. Said automobile was insured with the defendant Insurance Company under a policy called a Family Combination Automobile Policy. A copy of this policy is attached to this complaint as Exhibit ‘A’.
2. The plaintiff wished to sell the automobile and the automobile was inspected by Mr. Johnny Clouse, Jr. Mr. Clouse desired to test drive the automobile to see whether or not he liked it. Without the consent or knowledge of the plaintiff, Mr. Clouse engaged in drag racing the car in August, 1975 and did serious damage to the engine in the amount of $1,966.69.
3. This action of Mr. Clouse was an act of either theft or malicious mischief which under the policy entitles the plaintiff to be paid for said damage. The plaintiff has made demand upon the defendant Insurance Company for payment, but payment has been refused.
WHEREFORE, the plaintiff demands for the defendant the sum of $1,966.69, plus costs. The plaintiff also prays for general relief.
Respectfully submitted ./s/ Bart Durham Moon and Durham Attorneys for Plaintiff”

The answer of the defendant Insurance Company, inter alia, denies that third-party defendant, Johnny A. Clouse, Jr., drove the vehicle without the consent or knowledge of plaintiff and avers that any damages incurred by plaintiff are confined to wear and tear, mechanical or electrical breakdown or failure and, thus, not covered by the policy.

It is further averred in the answer that any damage incurred by the plaintiff resulted when the vehicle was being driven with the knowledge, permission and consent, either expressed or implied, of the plaintiff and, thus, was not the result of theft or malicious mischief, and defendant denies liability to plaintiff for any amount under the policy.

Defendant, Educator and Executive Insurers, Inc., filed a Third-Party Complaint against defendant, Johnny A. Clouse, Jr., seeking a judgment over against Clouse for any damages which might be awarded in favor of plaintiff McKinney against the defendant Insurance Company.

The answer of third-party defendant, Johnny A. Clouse, Jr., denies that he took or used the automobile belonging to plaintiff McKinney without plaintiff’s knowledge, permission or consent, and denies that he engaged in an act of drag racing or any other abusive use of the automobile in question. Third-party defendant avers that any damage to the automobile in question was the result of normal wear and tear on said vehicle or the result of improper and inadequate maintenance thereof, and he denies that he is in any way responsible for any damage to the said automobile.

The case came on to be heard before Chancellor C. Allen High, sitting as Judge of the Second Circuit Court of Davidson County, Tennessee, by interchange, and on October 3, 1976, he filed his Memorandum Opinion which is as follows:

“MEMORANDUM
This cause came on to be heard on October 4, 1976, upon the pleadings, evidence adduced by the respective parties, exhibits, and argument of counsel. The Court then announced its findings of fact:
On August 7, 1975, third-party defendant, Johnny A. Clouse, Jr., was driving plaintiff’s automobile with permission to ‘try it out’ with the idea of a possible purchase. While Clouse was in possession of the vehicle for this purpose, he engaged in a drag race and drove at an excessive rate of speed causing damage to the engine.
The Court took the matter under advisement for the parties to submit briefs on the question:
Did the acts of Clouse constitute a ‘malicious mischief’ which would entitle plaintiff to recover under his policy of insurance with defendant?
After full consideration of the entire matter, the Court feels that a correct statement of the law was set forth in the opinion of Imperial Casualty v. Terry, 451 S.W.2d 303 (Court of Civil App. of Texas, 1970):
. . Regardless of how careless, negligent or illegal an act might be, it is not malicious mischief absent evidence that the act was motivated by malice toward the property or its owner, i. e., by fixed intent to cause injury to specific property.’
Applying the above rule to this action, the plaintiff failed to carry the burden of establishing malicious mischief.
Mr. Donnell should prepare an order in accordance with this Memorandum dismissing plaintiff’s suit.
/s/ C. Allen High CIRCUIT JUDGE BY INTERCHANGE”

Thereafter, he entered a decree reciting that the cause came on to be heard upon the pleadings, the evidence introduced by the respective parties, exhibits and arguments of counsel, from all of which he found that plaintiff’s automobile was damaged in the amount of $1,353.00. The decree further recites:

“The Court found the third-party defendant was using plaintiff’s vehicle with the permission of the plaintiff as a prospective purchaser and therefore the unauthorized racing by the plaintiff was not a theft of the vehicle.

Hence, the plaintiff’s action against the Insurance Company was dismissed as to all issues except whether or not the acts of Johnny A. Clouse, Jr., constituted a malicious mischief, which was taken under advisement. The decree proceeds:

“Subsequent thereto briefs were filed by the respective parties with regards to the issue of malicious mischief, after which the Court found that the plaintiff had failed to carry his burden of proof in proving malicious mischief and thus found the issues joined in favor of the defendant, Educator and Executive Insurers, Inc.
IT IS THEREFORE ORDERED, ADJUDGED and DECREED that the plaintiff, Charles N. McKinney’s action against the defendant, Educator and Executive Insurers, Inc., should be and is hereby dismissed and accordingly the third-party action against Johnny A. Clouse, Jr., is dismissed.”

An appeal was granted and perfected to this Court.

After the entry of the final judgment, the attorney for plaintiff filed a motion to amend the pleadings to conform to the evidence and to add Johnny A. Clouse, Jr., as a defendant and adopting all of the allegations in the original complaint moved to amend the prayer for a judgment against defendant Clouse in the sum of $1,353.00.

There was a motion filed by the third-party plaintiff Insurance Company for a new trial against the third-party defendant Clouse, stating that same was filed in order to protect third-party plaintiff in the event the original plaintiff should be granted a new trial and a judgment against the Insurance Company.

These motions were overruled.

-Assignments of Error-
There are two assignments, as follows:
“a) The Court erred in holding that the damage caused by drag racing was not covered under plaintiff’s ‘comprehensive’ portion of his policy.
b) The Court erred in not allowing plaintiff to amend to conform his pleadings to the evidence to have judgment against the third-party defendant.”

-Our Conclusions-

This case is before us on appeal on the technical record alone, no bill of exceptions having been preserved or filed.

We have the motion of the appellees to dismiss the appeal on the ground that no bill of exceptions has been filed; however, appellant is entitled to rely on the technical record to sustain his assignments of error. Therefore, the motion to dismiss because of the absence of a bill of exceptions is overruled.

Of course, the case comes to us for a hearing de novo under T.C.A., § 27-303, with a presumption of correctness and, insofar as the conclusions of fact are concerned, the Trial Judge must be affirmed unless the evidence preponderates against his judgment.

As has been held in numerous cases in Tennessee, where assignments go to the evidence there must be a bill of exceptions, in the absence of which there is a conclusive presumption that there was sufficient evidence before the Trial Judge to support his judgment and, therefore, his judgment must be affirmed. See Norris v. Richards, 45 Tenn.App. 100, 320 S.W.2d 730 (1959), and numerous cases.

In the case at bar it is to be observed that the Trial Judge found and decreed that the third-party defendant, Johnny A. Clouse, Jr., was driving plaintiffs automobile with permission to try it out, with the idea of a possible purchase, and that, therefore, the unauthorized racing by the plaintiff was not a theft of the vehicle.

Counsel for appellant in his brief and argument relies on Coverage D — Comprehensive (excluding Collision), which provision is as follows:

“Coverage D — Comprehensive (excluding Collision):
1) To pay for loss other than by collision to the owned automobile or to a non-owned automobile. For the purpose of this coverage, breakage of glass and loss caused by missiles, falling objects, fire, theft or larceny, explosion, earthquake, windstorm, hail, water, flood, malicious mischief or vandalism, riot or civil commotion, or colliding with a bird or animal, shall not be deemed to be loss caused by collision.”

In addition to the foregoing provision relied on by the appellant as affording coverage for the alleged damage to his automobile, we find in “Part Ill-Physical Damage,” the following provisions:

“Exclusions: This policy does not apply under Part III:
(e) to damage which is due and confined to wear and tear, freezing, mechanical or electrical breakdown or failure, unless such damage results from a theft covered by this policy.

It is argued by counsel for appellant that he should recover under Coverage D-Comprehensive because drag racing would be a loss other than by collision.

Appellant also insists that he should recover on the ground of malicious mischief.

In the first place, the Chancellor did not find under the facts the existence of malice or malicious mischief and this is perhaps conclusive of the question since we do not have the evidence before us upon which the Chancellor reached his conclusion. However, appellant argues that while he has found no Tennessee case directly in point, some cases in other jurisdictions are said to support his position in this regard, citing State v. Wright, 2 Boyce 393,25 Del. 393, 79 A. 399, 400 (Del.Supr.1911), where it was said that willful or wanton injury to or destruction of property, committed únder such circumstances as to indicate a malignant spirit or mischief is sufficient to constitute malicious mischief.

In Ducote v. U.S.F.&G. Co., 241 La. 677, 130 So.2d 649 (1961), an employee took his employer’s truck without permission and while driving the truck in an intoxicated and reckless manner, struck another vehicle doing damage to the truck. Recovery was sought under the comprehensive liability policy. In said case the Court stated that the word “malicious” is characterized by or involves malice; the word “malice” in common speech means ill-will or a purpose to harm, and in that case the Court concluded:

“We are unable to ascribe to the reckless operation of the vehicle by the intoxicated employee the elements necessary to constitute malicious mischief within the meaning and terms of the contract of insurance; . . . ”

Again, in Imperial Casualty Co. v. Terry, 451 S.W.2d 303 (Tex.Ct. of App.1970), cited and quoted from in the Memorandum of the Trial Judge, supra, the Court stated, in essence, that the term “malicious mischief” as used in the comprehensive coverage provisions of the automobile policy means a wanton, intentional act committed with a fixed purpose to damage or destroy the property.

We are unable to find any substantial support for the position of plaintiff in his contention that he should recover on the basis of malicious mischief.

He further insists that he should recover on the basis of theft.

This insistence must be denied for several reasons. The Trial Judge found as a fact that Clouse was driving the vehicle with the permission of the owner, and, therefore, it was not a theft. (2) In his original complaint, plaintiff states that Clouse was driving the car as a prospective purchaser when the damage occurred.

In addition to all this, Part III of the policy, “Exclusions (e)” quoted hereinabove provides that mechanical breakdown or failure is not covered unless such damage results from theft.

The damage complained of was mechanical breakdown or failure and did not result from theft of the automobile.

Finally, it is insisted under the second assignment that the Court erred in not allowing plaintiff to amend after judgment to conform his pleadings to the evidence and to have a judgment against the third party defendant.

Under Rule 15.01, Tennessee Rules of Civil Procedure, we find the following provision:

“A party may amend his pleadings once as a matter of course at any time before a responsive pleading is served . Otherwise a party may amend his pleadings only by written consent of the adverse party or by leave of court . .”

The record does not show that appellant obtained the written consent of the adverse party and, as to the Court’s ruling we regard it as essentially discretionary. It was said in Womble v. Walker, 216 Tenn. 27, 390 S.W.2d 208 (1965), a Trial Court’s discretionary ruling on amendments to pleadings will not be disturbed on appeal unless there is a showing of a clear abuse of discretion.

We find no abuse of discretion on the part of the Trial Judge in refusing the amendment as prayed; hence, this assignment is overruled.

All assignments having been overruled, it results that the judgment of the Trial Court is affirmed.

AFFIRMED.

TODD, J. and GILLIAM, Special Judge, concur.