author: HARBISON, Justice. . HENRY, Justice

text:
    Roy WILSON et ux., Carolyn Wilson, Petitioners-Plaintiffs, v. ELECTRIC POWER BOARD OF CHATTANOOGA, Respondent-Defendant.
    Supreme Court of Tennessee.
    Oct. 11, 1976.
    Rehearing Denied Nov. 29, 1976.

      Jack R. Brown, Chattanooga, William G. McPheeters, Dayton, for petitioners-plaintiffs.
    Brian C. Smith, Don E. Warner, Thomas, Leitner, Mann Warner & Owens, Chattanooga, for respondent-defendant.
   OPINION

HARBISON, Justice.

This action for personal injuries was instituted by a lineman and by his wife for electrical burns which he sustained while undertaking to repair a transmission line. The line and a pole had been broken by a falling tree during an ice storm. The trial jury found in favor of the plaintiffs, petitioners here. The Court of Appeals reversed and dismissed, holding that the respondent Power Board was entitled to a directed verdict. It found no evidence of breach of duty by the respondent to the petitioner Wilson and also held that he was guilty of contributory negligence as a matter of law.

Our review of the record leads us to the conclusion that, taking the evidence in its most favorable light to the petitioners, a jury issue was presented as to the negligence of the respondent and as to the contributory negligence of the petitioner. The case was an extremely close one, however, and we find that the instructions given by the trial judge as to the duty owed by the respondent to the petitioner was erroneous, and that the charge failed properly to delineate the issues to be resolved by the jury. Accordingly we reverse the judgment of the Court of Appeals and remand the case to the trial court for a new trial.

On January 9, 1973, petitioner Roy Wilson, a lineman for Dillard Smith Construction Company, sustained electrical burns while working on respondent’s transmission lines. Petitioner and other employees of Dillard Smith, under the supervision of their foreman, Sherman Sherrill, were dispatched by radio from the Power Board to remove a tree and make necessary repairs to broken lines on Lookout Mountain near Chattanooga. Although the contract between Dillard Smith Construction Company and the Power Board is not in evidence, there was testimony that such a contract existed, and that Dillard Smith was performing the work as an independent contractor “under its own clearance”. According to the testimony, this term meant that the employees of the contractor were responsible for working on the lines in an energized condition or were required to take their own measures to ground the wires or otherwise de-energize them, and that the wires were not de-energized by the Power Board as would be done when the contractor was working under a “cut-off” order.

The Power Board advised the repair crew where switches and controls in the vicinity were located. Late in the afternoon on January 8, 1973 the crew found the trouble site, and thereupon the foreman, petitioner Wilson and other employees went to the poles upon which the controls were situated.

Two sets of lines were involved, the higher lines containing twelve thousand volts and the lower lines four thousand volts. An employee of the construction company climbed the pole upon which clamps were located controlling the twelve thousand volt lines, and he loosened these clamps so as to de-energize these lines.

Upon a separate and different pole, fuses had been installed by the Power Board by means of which the four thousand volt lines could be de-energized. Neither the petitioner nor any other employee of Dillard Smith Construction Company climbed the pole upon which these fuses were situated. Petitioner and his foreman inspected these fuses from the ground, and saw that fuse boxes on the four thousand volt lines were in an open position. Prom this they assumed either that someone from the Power Board had preceded them to the site and opened the fuses, or that the fuses had opened automatically, so as to de-energize the line. Because of ice, snow and poor visibility, petitioner and other members of the crew failed to observe that there were two sets of fuses on these four thousand volt lines, one of which was referred to in the record as a “knifeblade” fuse, which could only be opened or disconnected manually.

After ascertaining to their satisfaction that all lines had been de-energized, the crew proceeded to remove a broken pole farther toward the terminus of the line, reset it, splice the broken wires and replace them. They worked until after midnight on January 8 and returned to the site the next morning at about 8:30 to complete their work. On this occasion the foreman again walked down the line to the poles where the controls were situated. He ascertained that the “hot clamps” on the high voltage lines were still open and that the fuse boxes on the four thousand volt lines were still in an open position. Again, because of ice, snow and fog he failed to observe the knife blade switches on the latter set of lines.

Petitioner Wilson climbed the new pole which had been set the night before, and was undertaking to fasten one of the four thousand volt lines in place when he sustained the injuries complained of. He testified that he “fuzzed” the line with his hammer before handling it, and that it produced no spark. However, the line was either energized at that time or became energized shortly thereafter, and the petitioner sustained electrical shock and burn while attempting to lift the ice-coated wire into position.

Sharp issues as to contributory negligence were made, there being testimony that numerous safety devices and practices could have been utilized by the repair crew to prevent electrical shock even while working on energized lines.

There was testimony offered on behalf of petitioner, however, that it was unusual in the Chattanooga area for the Power Board to maintain lines with a dual set of fuses or switches such as were involved in the present case. While the “knife blade” switches and the wires leading to them were ordinarily visible from the ground, there is material evidence that they were not visible under the icy, foggy weather conditions obtaining on the night of January 8 and on the morning of January 9. To this extent, therefore, the Court of Appeals did not view the evidence most favorably to the petitioner when it stated that:

“The uncontroverted evidence shows that all the switches were obvious and plainly visible to the plaintiff and his fellow employees.”

The Court of Appeals also failed to give petitioner the most favorable view of the evidence when it stated that an employee of the contractor climbed the pole on which the dual switches or fuses were located. The pole which he climbed was the one on which were situated clamps controlling the twelve thousand volt lines. These clamps had been loosened by means of a “hot stick”. While Mr. Sherrill’s testimony is not entirely clear, plaintiff himself testified:

“Q. Now, that pole that you used the hot stick on is the same pole that the fuses are on, isn’t it?
“A. No, sir.
“Q. It’s a different pole?
“A. Yes, sir.”

The Court of Appeals apparently concluded that a member of the repair crew climbed the pole on which the knife-blade fuses were located, in close proximity to them, so that he would necessarily have observed them. This is not the fact situation, as we understand the record, and we believe that a jury issue was presented as to whether or not the repair crew, including the petitioner, did or did not act reasonably in failing to detect the knife-blade switches, under the icy and adverse weather conditions then obtaining. It was also for the jury to determine whether petitioner and the other members of his crew acted reasonably or otherwise in assuming that the four thousand volt lines were de-energized, based upon their observation of one set of fuses in an open position, particularly in light of the testimony that it was not standard practice to have more than one set of fuses on transmission lines in the area.

Accordingly, we do not believe that the Court of Appeals, in its review of the case, accorded to petitioners the most favorable view of the evidence and all legitimate inferences to be drawn therefrom. Upon the present record, we are of the opinion that jury issues were presented, and that the trial court properly overruled the motion of respondent for a directed verdict.

Under its disposition of the case, the Court of Appeals did not consider other assignments of error which had been properly made and preserved for appellate review by the respondent. We have considered these, and find one of them to be well taken. Both at the time they were given and in motion for a new trial, counsel for respondent objected to the instructions of the trial judge as to the duty owed by the respondent to the petitioner Wilson.

Wilson was an employee of an electrical contracting company. The Power Board was entitled to assume that the contractor and its employees were experts in dealing with electricity. The nature of the duty owed by the respondent under these circumstances was a crucial issue in the trial, and the charge of the court to the jury on the issue was extremely important, perhaps controlling. The trial judge did not at any point delineate for the jury any of the theories or contentions of the parties or the issues to be resolved by the jury. There were numerous allegations of negligence contained in the complaint, most of which were unsupported by the proof. There was no evidence of any violation of statutes or electrical codes, and since the contracting firm was operating “under its own clearance”, there was no evidentiary basis for the allegation in the complaint that the Power Board was negligent in re-energizing the lines. It is obvious that the line upon which petitioner was injured became energized in some manner. Whether this was done by the Power Board or resulted from a “feed-back” from a generator at the terminus of the line is unclear. Nevertheless there was sufficient evidence from which the jury could have inferred that the Power Board did in fact re-energize the line, but under the circumstances of this case such re-energizing could not and should not have been considered an act of negligence, although this was alleged in the complaint.

The only instruction given by the trial judge to the jury with respect to the duty owed was as follows:

“It is the duty of the Electric Power Board to exercise the highest degree of care consistent with the business of transmitting electricity to maintain its premises or the pole, in this instance, in a reasonably safe condition for the plaintiff using the premises, or the pole, and if there were dangers that were not obvious to the plaintiff of which the Power Board or the defendant knew or with reasonable care should have known, it was the duty of the Power Board to eliminate such dangers or to give warning thereof. Now liability in this type of case is grounded upon the superior knowledge of the Power Board of the danger over the plaintiff lineman in this case, it is when the dangerous condition is known to the Power Board and not to the plaintiff, Roy Wilson, that a recovery is permitted.”

We do not consider these to be adequate or entirely accurate instructions. The reference to “the pole” is somewhat imprecise and inaccurate. There was no general duty upon the Power Board to make safe the very pole upon which plaintiff was working. It was this pole which had been reset the night before, and the erection and connection of the lines thereupon was the very work which the petitioner and his crew had been called upon to perform.

If there were any negligence upon the part of the Power Board on this record, it consisted in maintaining a dual set of switches upon another pole, other than that upon which petitioner was working, or in failure to give warning thereof. Since the petitioner and the repair crew were expert electricians, called upon to repair a known defect or damaged condition in the power lines, in our opinion, they were owed reasonable care under the facts and circumstances then obtaining.

It is true that in several cases, high tension electric lines have been referred to as dangerous instrumentalities, and with respect to third persons a distributor of electricity has been said to owe the “highest degree of care”. This has been particularly true in connection with claims made by members of the public or by industrial workers or craftsmen brought into close proximity to high tension lines by their employment.

With respect to linemen, however, and persons employed for the specific purpose of erecting or repairing transmission lines, we are of the opinion that the duty should be expressed in terms of reasonable care, commensurate with the risks and dangers involved. These persons properly make use of the facilities or premises maintained by the power company, and are owed a duty which may indeed involve a great amount of care, and which is not delegable. However, we think that to designate this the “highest degree” is misleading, under circumstances such as those shown here. Further, the duty to warn or make safe only applies to latent or hidden dangers which the lineman could not reasonably be expected to discover. The fact that the dangerous condition is not “known” or “obvious” to the worker is not controlling if he could fairly and reasonably be expected to see or discover it for himself. At no point was this explained to the jury.

Probably the leading Tennessee case upon the duty owed by the owner of premises to employees of contractors called there for the purposes of making repairs is the case of Shell Oil Co. v. Blanks, 46 Tenn.App. 539, 330 S.W.2d 569 (1959). There the duty was expressed in terms of ordinary reasonable care, including a duty to warn or to make safe with respect to latent or hidden dangers or with respect to risks separate and distinct from those created by the conditions to be repaired under the contract.

In the case of Pierce v. United States, 142 F.Supp. 721 (E.D.Tenn.1955), a lineman sustained injuries while working near a supposedly de-energized line. In that .case the court observed that no electrical lineman is “justified, or in law may, presume his place of work is safe”. 142 F.Supp. at 728. Nevertheless the Court pointed out that the owner or .distributor of electricity has a nondelegable duty to see that “reasonable means” are taken to protect those who come into contact with it. The Court said:

“Failure to fulfill that duty results in liability on the part of such individual, even though the plaintiff’s injury resulted in whole or in part from the acts or omissions of an independent contractor employed to perform the particular work.” 142 F.Supp. at 729.

See also Paul v. Staten Island Edison Corp., 2 A.D.2d 311, 155 N.Y.S.2d 427 (App.Div.1956) (“reasonable care”); Florida Power & Light Co. v. Robinson, 68 So.2d 406 (Fla.1953) (“high degree of care”); Palenscar v. Michael J. Bobb, Inc., 439 Pa. 101, 266 A.2d 478 (1970) (“reasonable care”, as set out in Restatement (Second) Torts § 343 (1965)).

We do not believe that the instructions given in this case conform to the reported cases on the subject or that they gave sufficient guidance to the jury to enable them accurately to resolve the factual issues presented.

The judgment of the Court of Appeals is reversed and the cause is remanded to the trial court for a new trial as to all issues. Costs accrued in the action will be divided equally between the parties. Costs of the new trial will abide the result thereof.

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

HENRY, J., filed separate opinion, concurring in part; dissenting in part.

. HENRY, Justice

(concurring in part; dissenting in part).

I.

Concurring

I concur in so much of the majority opinion as holds that jury issues were presented, and the trial court properly overruled the motion for a directed verdict.

There was ample material evidence from which the jury would have been warranted finding:

a. That the use of a dual fusing system was unusual under the modern state of the art.
b. That such use should have been called to the attention of the maintenance crew.
c. That the failure to warn of this obsolete system was a breach of duty on the part of the Power Board.
d. That the knife blade switches were not visible on the night before, or the day of, the accident because of ice, fog and snow.
e. That the maintenance crew had no reason to suspect a dual switching system and, therefore, had no duty to look for the knife blade switch.
f. That the lines were dead on the night before the accident.
g. That some time during the night the lines were re-energized at the substation or there was a feed-back from the auxiliary system, with the result that the lines were “hot” the next morning.
h. That in either event the Power Board was under a duty to warn.
i. That a breach of these duties was the proximate cause of plaintiff’s injuries and damages.

In any event, under appropriate standards of appellate review, these were jury issues.

II.

Dissenting

The Trial Judge charged the jury, in part, as follows:

It is the duty of the Electric Power Board to exercise the highest degree of care consistent with the business of transmitting electricity to maintain its premises or the pole, in this instance, in a reasonably safe condition for the plaintiff using the premises, or the pole, and if there were dangers that were not obvious to the plaintiff of which the Power Board or the defendant knew or with reasonable care should have known, it was the duty of the Power Board to eliminate such dangers or to give warning thereof. Now, liability in this type of case is grounded upon the superior knowledge of the Power Board of the danger over the plaintiff lineman in this case. It is when the dangerous condition is known to the Power Board and not to the plaintiff, Roy Wilson, that a recovery is permitted.

The majority holds that these instructions were neither “adequate or entirely accurate instructions”. I disagree. It even faults the trial judge for referring to “the pole”, holding this to be “somewhat imprecise and inaccurate”. With utmost deference to my colleagues, this is “reaching” for a reason.

I would hold the charge to be both adequate and accurate. Had the trial judge stopped immediately after charging “[i]t is the duty of the Electric Power Board to exercise the highest degree of care”, the charge would have been both inadequate and inaccurate. But, he did not stop. He went on to charge:

. if there were dangers that were not obvious to the plaintiff of which the Power Board or the defendant knew or with reasonable care should have known, it was the duty of the Power Board to eliminate such dangers or to give warning thereof. Now, liability in this type of case is grounded upon the superior knowledge of the Power Board of the danger over the plaintiff lineman in this case. It is when the dangerous condition is known to the Power Board and not to the plaintiff . . . that a recovery is permitted. (Emphasis supplied).

The trial judge is to be commended for a succinct, adequate and accurate statement of the applicable law in a case involving an independent contractor working under its own clearance. True, he could have gone further and deeper into the subtle nuances of the law, but there is no requirement that a trial judge’s charge be couched in the erudite phraseology of a law review article, nor that it be encyclopedic in nature. Indeed such is not desirable. It is intended merely to give the jury a general insight into the applicable law.

Under Tennessee law, an independent contractor assumes the risk of a known danger, but the owner has a duty to warn of a hidden danger, to those who are without actual or constructive notice. Shell Oil Company v. Blanks, 46 Tenn.App, 539, 330 S.W.2d 569 (1959). Under the same authority, our courts adhere to the view that an exception to the general duty on the part of the owner to provide a safe place to work, exists in those cases “where the risks arise from, or are intimately connected with, defects of the premises, or of machinery or appliances . . . which the contractor has undertaken to repair.” 330 S.W.2d at 571. Nor may the doctrine of assumption of the risk be involved where there is a risk “separate and distinct from those created by the defects to be repaired”. 330 S.W.2d at 571-72. And under such circumstances the owner has a duty to warn of hidden dangers. Ibid. See also Dempster Bros., Inc. v. Duncan, 61 Tenn.App. 88, 452 S.W.2d 902 (1969).

This is, in substance, what the trial judge charged.

The trial proceedings shed significant light upon the sufficiency of the charge and also provide substantial insight into the conscientious effort made by the trial judge to enlist the aid of counsel in an effort to instruct the jury accurately and adequately.

The record shows a lengthy colloquy between the court and counsel on the matter of the duty and standard of care, with the court soliciting the aid of counsel. Counsel representing the Power Board at one point, exclaimed, “I don’t know the duty”.

The court specifically told counsel: I would like for you to write down what you say the duty is for me to charge this jury. . . .

Thereafter he advised counsel precisely what he wanted, and gave them until the next day to present this matter to him.

When the court reconvened the next day, counsel for the Power Board read briefly and commented on (15 lines in the Bill of Exceptions), Jones v. City of Dyersburg, 59 Tenn.App. 354, 440 S.W.2d 809 (1967), but presented no special requests.

Counsel for plaintiff submitted seven (7) special requests, however, these do not appear in the record.

I find it difficult to rationalize holding a trial court in error on the basis of a charge where complaining counsel failed to respond to the trial judge’s request for assistance. The Power Board was represented by capable and experienced trial counsel. Brief research would have enabled the presentation of appropriate special requests. I cannot condone his standing idly by, withholding the requested assistance, and then charging the trial judge with error.

The trial judge did his homework and his charge was correct.

Assuming arguendo that the charge was meager or inadequate, this is not fatal. As the late Chief Justice Burnett said, in Bluff City Buick Co. v. Davis, 204 Tenn. 593, 323 S.W.2d 1 (1959):

This Court has held for more than 100 years that we would not reverse a case for meagerness, inadequacy, etc., or failure to give a charge unless a special request is asked which correctly sets forth the points to be charged. (Emphasis supplied).
204 Tenn. at 602, 323 S.W.2d at 5.

I deplore the tendency sometimes shown by appellate courts to expect trial judges, in their charges, to be extemporaneously and spontaneously as thorough in their exposition of the law as appellate judges are — or should be — in judicial treatises originating in the rarefactive atmosphere of their appellate judicial chambers. This great expectation is founded in fallacy.

Until the State of Tennessee recognizes that her trial judiciary deserves and needs adequate court rooms, adequate library facilities and, more importantly to this issue, a fulltime law clerk, we are going to continue to have meager — and sometimes inadequate — charges. It is impossible for a trial judge, working under a tight schedule and attempting to manage a heavy case load, to sit the trial bench, coping with the increasingly complex issues of legal controversies, forced to “shoot from the hip” as he rules on evidentiary problems, dealing with counsel “working in the pits” in a fierce adversary system, to give the thought and attention to jury charges that cases demand and justice requires.

I am not willing to reward their best efforts with reversal merely because a charge, intended for lay consumption, does not measure up to law review standards of legal erudition.

I would affirm.

       See T.C.A. § 27-823.

      . E. g., Phelps v. Magnavox Co., 62 Tenn.App. 578, 466 S.W.2d 226 (1971) (roofer working near lines); City of Chattanooga v. Shackleford, 41 Tenn.App. 734, 298 S.W.2d 743 (1956) (roofer); International Harvester Co. v. Sartain, 32 Tenn.App. 425, 222 S.W.2d 854 (1948) (steel worker). The phrase was also used with respect to the duty owed to a lineman in the case of Jones v. City of Dyersburg, 59 Tenn.App. 354, 364, 440 S.W.2d 809 (1967), but only in a comment upon the sufficiency of pleadings “absent any testimony”. This was a non-jury proceeding and elsewhere in the opinion the Court stated that the case was controlled by the principles of Shell Oil Co. v. Blanks, 46 Tenn.App. 539, 330 S.W.2d 569 (1959), where “reasonable care” was held to be the standard.

      . Court adjourned at 4:00 o’clock p. m. prevailing time and reconvened the next day at 9:00 o’clock, a. m.


source: Caselaw Access Project

author: BROCK, Justice.

license: Public Domain

text:
    STATE of Tennessee, Petitioner, v. Patrick HUGHES and Dale Neese, Respondents.
    Supreme Court of Tennessee.
    Dec. 6, 1976.

      Elmer Davies, Jr., Dist. Atty. Gen., Franklin, Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, for petitioner; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
    William C. Wilson, Nashville, William Carter Conway, Franklin, for respondents.
   OPINION

BROCK, Justice.

The defendants, Hughes and Neese, were convicted of possessing marijuana for the purpose of sale and sentenced to imprisonment for not less than one nor more than two years; in addition, Hughes was fined $1,000.00. These convictions were based upon evidence obtained by means of a search of an automobile by police officers of the City of Franklin. Defendants sought to have this evidence suppressed but the trial court denied their petition. Upon appeal, the Court of Criminal Appeals held that the search was unlawful and reversed the convictions. We granted the State’s petition for review by certiorari.

Shortly before midnight, January 23, 1973, Neese, accompanied by Hughes, drove his Volkswagen automobile to the “Country Store,” a novelty shop at the intersection of 1-65 and Highway 96 at Franklin. Neese got out and went into the “Country Store” and asked if it was open. When he learned that it would be open for a while, he returned to the car, and Hughes took the driver’s seat and drove off, leaving Neese, who then went back into the store and to the soft drink machine where he got a Coca-Cola and some food. An employee reported to the manager that Neese was nervous. The manager became suspicious and made two telephone calls to the police. The manager testified that Neese had a nervous walk but neither defendant had committed any offense there.

When the police officers arrived, they called Neese outside, asked him for identification and checked it through Nashville records and found he had no arrest record. Neese told them that he was at the store to eat; that he and Hughes had started to Florida and had developed car trouble; that Hughes had gone to a friend to have the car repaired and would return. Although the officers knew of no violation of law, they directed Neese to get into the back seat of the patrol car and they then drove to the highway interchange where in a few minutes a Volkswagen approached which Neese told them was his vehicle. The officers then followed as Hughes drove to the “Country Store” and parked there. There is no claim that Hughes’ driving was erratic or that he violated any law as the officers followed him.

At the “Country Store” the officers parked 20 or 30 feet from Hughes. Leaving Neese in the patrol car, they approached Hughes who rolled the window down and one of the officers smelled the odor of marijuana apparently coming from the car. At this point, the officer proceeded to search the automobile. In the trunk of the vehicle, 22 pounds of marijuana in “brick” form were found whereupon defendants were arrested.

Of course, it is fundamental that all persons are protected from unreasonable searches and seizures by the State and its agencies. Art. 1, § 7, Constitution of Tennessee; Amendment 4, Constitution of The United States. It is also well-settled that evidence obtained by the State by means of an unlawful search is not admissible in a criminal case against the victim of the search. Hughes v. State, 145 Tenn. 544, 238 S.W. 588 (1922); 20 A.L.R. 639.

A search conducted without the authority of a warrant issued by a magistrate upon probable cause is, presumptively, an unreasonable one. But, there are well recognized exceptions to this rule, one of which is that an officer of the law may search an automobile without a warrant if,' at the time, he has probable cause to believe that it contains contraband and if the circumstances existing are such that the vehicle will probably escape before a search warrant can be obtained. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968). We hold that the search in this case falls within this exception and was a reasonable one.

The officer who testified that he smelled the odor of marijuana coming from the vehicle when respondent Hughes lowered the window also testified that by reason of his training and experience he was able to detect and identify the distinctive odor of marijuana. In our opinion, this constituted probable cause to believe that the vehicle contained contraband marijuana.

In Reece v. State, 197 Tenn. 383, 273 S.W.2d 475 (1954), the search of an automobile for illegal whiskey was upheld on grounds that probable cause was shown by testimony of a police officer that he observed an unidentified liquid dripping from the vehicle, and, simultaneously detected the odor of whiskey. Cases from other jurisdictions indicate that the generally accepted rule is that the detection of the distinctive odor of a contraband substance may, under particular circumstances, constitute probable cause to search.

In People v. Laird, 11 Ill.App.3d 414, 296 N.E.2d 864 (1973), the officer stopped a van for a speeding violation and noticed that the truck had no light on its license plate. The officer became suspicious. He received permission to open the van and look inside. Upon opening the door, he immediately detected the odor of marijuana. He then searched the vehicle and discovered a small bag of the substance, and made the arrest. The court sustained the conviction on grounds of a valid search based upon probable cause supplied by detection of the odor of the contraband.

In People v. McKinnon, 7 Cal.3d 899, 103 Cal.Rptr. 897, 500 P.2d 1097 (1973), an air freight agent became suspicious when he observed the shape of a package and had an officer inspect its contents. The officer detected both the shape and odor of marijuana “bricks.” Again, the court sustained the conviction, holding that in determining probable cause, “an officer may rely on all his senses.” The court noted that the officer was “qualified on the witness stand as being well versed in the detection and identification of illegal narcotics.”

And, in People v. Christensen, 2 Cal.App.3d 546, 83 Cal.Rptr. 17 (1969), the officer stopped the defendant for a traffic violation and smelled the odor of burning marijuana when he approached the car. Although there was cause to arrest present in that case which was not present in the case at bar nor in People v. Laird, supra, the court observed:

“The odor of burning marijuana also afforded probable cause to believe the car contained contraband, a circumstance which would justify a warrantless search of the car even if cause to arrest had been absent.” 83 Cal.Rptr. at 18.

As noted previously, a warrantless search is not justified merely because an officer has probable cause; in addition, there must be good cause for foregoing the procurement of a search warrant. This case falls within the “exigent circumstances” exception to the necessity to obtain a search warrant, i. e., that an occupied automobile halted upon the highway will likely escape before the facts constituting probable cause can be presented to a magistrate. Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

Armed as they were with probable cause, the officers had the right and duty to search the automobile. To have failed to search under the circumstances would have meant risking loss of the contraband. The defendants at that time were not under arrest and the officers had no cause to arrest prior to the search. This was the situation in People v. Laird, supra, wherein the officer stopped the defendant for a traffic violation and searched the car after smelling marijuana. The court pointed out the fact that the officer had no right to further detain the defendant and that he was acting within constitutional bounds in taking action to preserve evidence which he had probable cause to believe was within the vehicle.

It is our conclusion that the Court of Criminal Appeals erred in holding the search in this case to be unlawful and the evidence thus obtained to be inadmissible.

We agree, however, with the conclusion of that Court that the convictions in this case must be reversed. The trial court, over the objections of the defense, admitted evidence that on the day following the arrest of defendants, officers seized about 300 pounds of marijuana in a shed several miles from the place of defendants’ arrest. At the time of his arrest, Hughes had told the officers that he had been to see about a “Blazer” automobile which was stuck in the mud in a field. The Sheriff of Williamson County testified that on the following day he discovered a “Blazer” automobile mired in a muddy field a distance of miles from the “Country Store” where the defendants were arrested. A search of the unoccupied house on the property disclosed a set of scales and three bricks of marijuana similar to those found in the Hughes-Neese automobile. A search of a shed near that house disclosed several bags of marijuana, each containing approximately 27 pounds in brick form and each similar to the bag of marijuana found in the Hughes-Neese automobile. The total quantity of marijuana found at that time was approximately 300 pounds. The Sheriff testified that he had personally checked the driving time from the “Country Store” where the defendants were arrested to the property where this marijuana was discovered and the return time. That round trip, including a slight delay, took approximately 16 minutes. This time span coincided with that which elapsed while Hughes left Neese at the “Country Store” the previous evening and returned.

The State insists that such evidence was admissible as tending to prove that defendants intended to sell the marijuana found in their Volkswagen the previous night at the time of their arrest. See T.C.A. § 52-1432(a)(2). That statute provides that “. . . other relevant facts surrounding the arrest” may be the basis of an inference of such intent, but, in our view, the evidence here challenged is not sufficiently tied to these defendants to be relevant. There is no evidence that the “Blazer” mired in the field belonged to either defendant; nor evidence that either of the defendants owned, possessed or was in any manner connected with the real estate or the shed where the 300 pounds of marijuana was found. Therefore, we are of opinion that such evidence was not sufficiently relevant to any issue in the case and should not have been admitted. Furthermore, we cannot conclude that its admission was harmless error; indeed, the State concedes in its brief that such evidence was “prejudicial” to the defendants. Jones v. State, 489 S.W.2d 44 (Tenn.Cr.App.1972).

The judgments of conviction in the trial court are reversed and the case is remanded for a new trial. Costs are taxed against the State.

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

      . The officers claim that defendants consented to the search, a claim denied by them. We assume, but do not decide, that no consent was given. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
      If Hughes rolled down the window of his car in obedience to a demand from Officer Stafford that he exhibit his driver’s license, a different question would be presented, because, under the circumstances existing, the officers, not being state patrolmen, had no authority to demand exhibition of such license since Hughes had not then or immediately prior thereto been engaged in a violation of any municipal ordinance or state statute. T.C.A. § 59-709; Cox v. State, 181 Tenn. 344, 181 S.W.2d 338 (1944); Robertson v. State, 184 Tenn. 277, 198 S.W.2d 633 (1947). However, this point was not fully developed at the hearing and our conclusion .from the evidence is that Hughes parked his car voluntarily and then rolled down his window permitting the odor of marijuana to escape before Officer Stafford demanded to see his driver’s license.

      . The State does not contend and, indeed, under the evidence could not do so successfully, that this search was justifiable as being one incident to a lawful arrest; the officers had no grounds to arrest either Neese or Hughes prior to the search.


author: TODD, Judge.

text:
    Evelyn Elaine Shapiro ZEITLIN, Plaintiff-Appellee, v. Ronald Stanford ZEITLIN, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    June 25, 1976.
    Certiorari Denied by Supreme Court Nov. 29, 1976.

      William L. Small, Nashville, for plaintiff-appellee.
    John R. Cheadle, Nashville, for defendant-appellant.
   OPINION

TODD, Judge.

In this divorce ease, the defendant, Ronald Stanford Zeitlin, has appealed from orders of the Trial Court entered in response to supplemental petitions and motions after final decree.

On September 3, 1973, a Final Decree of Divorce was entered by the Honorable William P. Ortale, Special Judge. Said decree recited with approval a “separation agreement” between the parties and ordered defendant to pay $200.00 per week alimony and child support as provided in said agreement.

On October 10,1973, plaintiff filed a petition for contempt for failure to pay alimony, and defendant was ordered to appear and show cause why said petition should not be granted.

On October 17, 1973, defendant filed a petition to reduce payments.

No action appears to have been taken by the Court upon the two petitions just mentioned.

On October 11, 1974, plaintiff filed a second petition for contempt.

On June 24, 1975, defendant filed a petition praying for various relief, including reduction in payments.

On July 16, 1975, plaintiff filed an “Answer and Counterclaim” resisting all relief sought in the last mentioned petition and praying, among other things, for a judgment for $16,770.00 delinquent alimony and child support.

On July 22, 1975, plaintiff filed an “Answer to Counterclaim” alleging that the parties had previously joined in an “agreed order” which, through inadvertence, was never entered upon the records of the Court.

The matter was heard on August 6,1975, by the Honorable Benson Trimble, regular Judge of the Trial Court, as a result of which an order was entered on September 8, 1975, pertinent parts of which are as follows:

“2. The substance of the Order marked “Exhibit # 1” to the testimony of petitioner filed at the hearing of the Petition of petitioner, Ronald S. Zeitlin, but never heretofore filed with the Court, shall supersede paragraph “3” of the “Separation Agreement” incorporated in the Final Decree of this cause concerning alimony and child support payments by Ronald S. Zeitlin to Evelyn S. Zeitlin. Beginning August 8,1975, Ronald S. Zeit-lin shall pay to Evelyn S. Zeitlin one-half of all of his earnings or monies coming into his hands from any source whatsoever for the use and benefit of said Ronald S. Zeitlin or the sum of $866.00 each month, whichever is smaller. .
“6. Insofar as arrearage may be concerned in regard to the payment of child support by Ronald S. Zeitlin, the Court, of course, is in sympathy with his situation insofar as the Order not having been filed as it, of course, should have been. Nevertheless, the Court must rely upon only Orders that are filed and cannot, in its opinion, allow credence to Orders otherwise. Therefore, the arrearage will be calculated on this basis. Accordingly, Evelyn S. Zeitlin is hereby awarded a judgment against Ronald S. Zeitlin in the amount of $14,420.76. Said judgment is to be held in abeyance, at least until the financial activity of Ronald S. Zeitlin increases to a reasonable extent where this arrearage could be paid.”

On October 1, 1975, plaintiff filed a motion requesting that the previously mentioned “agreed” order be entered “nunc pro tunc,” to take effect from October 31, 1973.

On the same date, defendant moved for a new trial.

On October 3, 1975, plaintiff moved the Court to amend the order of September 8 by striking therefrom the judgment in the amount of $14,420.76.

On January 22, 1976, a further order was entered overruling plaintiff’s motions for nunc pro tunc entry of the former “agreed order” and for a new trial.

The latter order grants defendant’s appeal to this Court.

The appellee has moved this court to strike the bill of exceptions and dismiss the appeal on the ground that:

“ . . . counsel for Appellant failed to give notice to counsel for Appellee of the filing of the Bill of Exceptions and of designation of the record as required by Tennessee law, and that the failure to so notify counsel for Appellee violated the Appellee’s right to due process.”

The bill of exceptions is marked “filed February 17, 1976,” by the Trial Clerk. It contains a certificate of a “Court Reporter and Notary Public” and the authentication of the Trial Judge dated February 17,1976. The bill of exceptions does not reflect the approval of the attorney for appellee, nor does the record reflect any notice to him of the filing of the bill of exceptions.

The bench and bar have frequently encountered difficulty in the interpretation of § 27-110, T.C.A.

In Anderson v. Sharp, 195 Tenn. 274, 259 S.W.2d 521 (1953), the Supreme Court stated that the settlement of a bill of exceptions was “a high judicial function.” As such, it certainly requires full operation of “due process” in its performance. Elemental due process requires notice to interested parties and opportunity for them to be heard before a decision is made affecting their rights.

Reading § 27-110 in this light, it is the legislative intent that, unless both parties approve a proposed bill of exceptions, then it shall not be approved by the Trial Judge unless and until due notice has been given to the party not approving, ten days' have been allowed for objections, and a hearing has been had for the resolution of all issues raised by such objections.

In Anderson v. Carter (Tenn.App.1974), 512 S.W.2d 297, this Court so interpreted the statute.

In Estes v. L & N R.R. (Tenn.App., M. S., April 25, 1975, publication recommended) this Court held that the authentication of a bill of exceptions prior to such notice, opportunity for objection and ruling thereon, was properly treated as premature and invalid.

In view of the foregoing, it would appear that appellee’s motion is well taken; however, at the bar of this Court, counsel for appellee candidly stated that, after learning of the filing of the bill of exceptions, he filed no objections and made no other effort to reform the bill of exceptions. Under these circumstances, this does not appear to be an appropriate case for strict application of the interpretation of the statute as above stated.

Moreover, no reversible error appears from an informal examination of the bill of exceptions. Therefore, with the reservations stated, the motion to strike and dismiss is respectfully overruled.

Appellant has filed five “Specifications of Error” which are assumed to be an erroneous designation of the Assignments of Error required by the rules of this Court.

First, appellant states that the former “agreed order” should have been entered nunc pro tunc pursuant to Rule 60.02(1) T.R.C.P., which reads as follows:

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) Mistake, inadvertence, surprise or excusable neglect; . . . ”

The foregoing is designed to afford relief from judgments which have been entered. There is nothing in the verbiage of the rule to suggest that it provides for the entry of a judgment which was not entered.

Appellant cites testimony that counsel for both parties intended that the order be entered and thought that it had been entered. Such evidence, if true, would not sustain the entry of the order “nunc pro tunc,” for there is no evidence that the Judge rendered the decision, even orally; that he intended to render the decision; that he made any memorandum of such a decision; or that he intended that such an order be entered.

Until brought to the attention of the Trial Judge, an “agreed order” is no order at all, but merely an agreement of the parties. It has no significance as a judicial act until a judicial act (decision) gives it significance.

Appellant suggests that if, as one counsel testified, he “believes,” the order was “filed,” then the failure to place the order on the minutes was a failure of a court official for which a party should not be penalized.

Rules 58.01, 58.02 T.R.C.P. provide:

“58.01 Signing
Except when otherwise specifically provided by statute, all judgments shall be signed by the judge and filed with the clerk.
“58.02 When judgment entered
The filing with the clerk of a judgment, signed by the judge, constitutes the entry of such judgment, and, unless the court otherwise directs, no judgment shall be effective for any purpose until the entry of same. The clerk shall note the entry of the judgment and the date of such entry thereof upon the civil docket and upon the face of the judgment and shall promptly copy all judgments of the court upon the official minutes, but all judgments shall be effective upon entry of same as hereinbefore provided, unless otherwise ordered by the court. After receipt of the signed judgment from the judge the clerk shall retain the same in his custody until it has been copied upon the minutes.” (Emphasis Supplied)

It is seen that the signature of the judge is a prelude to the filing by the clerk. There is no authority for any effective “filing” of a judgment prior to the signed approval of the judge.

It is the primary duty of counsel to obtain the signature of the judge upon a proposed order or judgment before filing with the clerk. If an unsigned order is received by the clerk for presentation to the judge, this is a mere unofficial courtesy; and it has no official significance until the signed order reaches the hands of the clerk for filing.

For the reasons stated, the first assignment of error is respectfully overruled.

Appellant’s second complaint is that the “agreed order” should be entered “nunc pro tunc” because of “intrinsic or extrinsic fraud, misrepresentation or other misconduct on the part of the adverse party.” Section [2] of rule 60.02, T.R.C.P.

Appellant’s brief states:

“At this point, attorney for appellant wishes to make it perfectly clear that he makes no accusations of intentional fraud, misrepresentation or misconduct on the part of opposing attorneys. It is the opinion of attorney for appellant that an unintentional fraud was perpetrated upon appellant by attorneys for appellee by causing appellee to rely upon the un-filed Order over a long period of time. This long delay, appellant urges, should not prejudice his rights and should toll the time (‘not more than one year after the Judgment, Order or Proceeding was entered or taken.’) in which appellant was required to seek relief under 60.02(1) and (2).”

Appellant cites evidence that, for about a year, the parties’ actions indicated that they thought the “agreed order” had been entered. Said evidence, if true, would be worthy of consideration in connection with an application for retroactive relief (forgiveness) of delinquent alimony and child support, but the courts cannot permit the actions of the parties to compel a court to enter an order which did not and does not represent the judgment of the court.

The second assignment of error is respectfully overruled.

Appellant’s third complaint relies upon Section (5) of the same Rule 60.02 T.R.C.P. providing relief for “any other reason justifying relief from the operation of a judgment.”

As previously stated, the appellant is not seeking relief from the operation of a judgment, but is seeking relief from the non-entry of an order by the belated entry thereof “nunc pro tunc,” which is not contemplated by the rule.

The third assignment of error is respectfully overruled.

Appellant next states that there is no dispute that the Trial Court actually “rendered” a decision on October 31, 1973.

The memorandum opinion of the Trial Judge states:

“Insofar as arrearage may be concerned in regard to the payment of child support by the cross-respondent, the court, of course, is in sympathy with his situation insofar as the Agreed Order not having been filed as it, of course, should have been. Nevertheless, the court must rely upon only orders that are filed and cannot, in its opinion, allow credence to orders otherwise.”

At the bar of this Court during oral argument, counsel for both parties candidly admitted that there was no evidence that the parties or their attorneys actually appeared before the Trial Court on the occasion of the alleged October 31, 1973, order, or that the Trial Judge actually made or announced any decision at that time. On the contrary, counsel agreed that the “Agreed Order” was the result of a conference outside the courtroom and that any impression that the Trial Court made any decision was based upon a supposition that the “Agreed Order” reached his hands and was approved. Of such fragile framework, judicial pronouncements are not constructed.

The fourth assignment of error is respectfully overruled.

Appellant next insists that “in the event Mr. Cate actually did file the disputed order as he stated that he thought he did” then the failure of the Clerk to (obtain the signature of the Trial Judge and) enter the order on the minutes was a “clerical mistake” for which Rule 60.01 provides relief. The words “clerical mistake” do not particularly apply to every act of a person denominated a “clerk.” Rather it applies to mechanical errors of computation or copying by any person, Clerk or otherwise. As previously observed, if there was a mistake or omission by some unnamed employee of the Trial Clerk, it did not occur in the course of official conduct, but rather as a friendly, unofficial accommodation of an attorney in performing a duty which was the function of the attorney and not the Clerk.

The fifth complaint is respectfully overruled.

Appellant cites Jackson v. Jarratt, 165 Tenn. 76, 52 S.W.2d 137 (1932), however that decision defines the word “Rendered” to mean “expressed or announced in a conclusive manner and with decisive effect” and “certainly so when . . . notation . is made on a . . . more or less permanent memorandum record kept by the Judge for that purpose.” As candidly stated by counsel, none of the foregoing requisites of “rendition of judgment” are shown in this case.”

Definition of “entry” in the cited authorities is inapplicable because, without “rendition,” there can be no entry.

Appellant also cites McCown v. Quillin, 48 Tenn.App. 162, 344 S.W.2d 576 (1960), however, the requisites for entry of nunc pro tunc orders, as recited in said authority, are not shown in the present case.

In Vessels v. Vessels (Tenn.1975) 530 S.W.2d 71, the Trial Judge had “made a notation on the file of the case that the divorce was granted and the property was awarded on the 21st day of June, 1974.” It was held proper to enter a decree in July 1974, effective June 21, 1974.

Rule 58.02, T.R.C.P. supra, does provide that the effective date of a judgment is the date of filing with the Clerk signed by the Judge, “unless otherwise ordered by the court.” This is deemed authority for a Trial Judge to “otherwise order” in proper cases, but it is not deemed authority for an appellate court to reverse the action of a Trial Judge in refusing to “otherwise order” where he has no record to substantiate his previous action.

The fifth assignment of error is respectfully overruled.

Each complaint of appellant has been examined and found to be without merit. Therefore, the action of the Trial Judge must be affirmed.

However, as stated by the Trial Judge, this Court is not without sympathy for the plight of appellant. Appellant has been burdened with a substantial judgment for delinquent payments which, according to his insistence, were modified or forgiven by agreement of the parties. Said judgment does not, however, provide for immediate enforcement, hence it is merely an adjudication of fact as to the amount remaining unpaid, and not a final adjudication in the same sense as that of an ordinary judgment which provides for immediate execution.

In the case of Hopkins v. Potter, announced at this term, this Court distinguished between the status of final judgments for delinquent alimony and/or support and judgments less than final in respect to the amount of previously ordered alimony and/or support. The former are not subject to forgiveness or modification in amount, whereas the latter retain their character of alimony or support to the extent that they may be forgiven or modified under the general powers of a divorce court to retroactively forgive or modify delinquent installments of alimony or support. See T.C.A. §§ 36-820, 828; Thomas v. Thomas, 46 Tenn.App. 572, 330 S.W.2d 583 (1959); Daugherty v. Dixon, 41 Tenn.App. 623, 297 S.W.2d 944 (1956) and authorities cited therein.

In view of the continuing power of the Court to grant such relief as the facts justify, it is not considered that irreparable harm has resulted from the failure to enter the so-called “Agreed Order.”

The actions of the Trial Judge from which appeal was taken are affirmed. The costs of this appeal are taxed against defendant-appellant. The cause is remanded for further proceedings.

Affirmed.

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


author: RUSSELL, Judge. GALBREATH, Judge

text:
    Kenneth Dale SMART, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 17, 1976.
    Certiorari Denied by Supreme Court Oct. 25, 1976.

      Edward G. Thompson, Public Defender, Walker Gwinn, Chief App. Counsel, Memphis, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, James D. Wilson, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

RUSSELL, Judge.

This is an appeal by Kenneth Dale Smart from his conviction for second degree burglary. Sentence was set at not less than five nor more than ten years in the penitentiary.

Trial was conducted in Division VI of the Criminal Court of Shelby County. A co-defendant, Charles Matlock, was convicted of receiving stolen property and was given three years, and did not appeal.

This crime, a daylight home burglary, involved the theft of about $2,500.00 worth of property, consisting of a pocket calculator, an electronic calculator, a class ring, a rifle, a trumpet, tape recorders and stereo equipment.

The rifle, tape recorders and stereo equipment were first located by an alert Memphis policeman before they were even recorded on the police computer as stolen. The burglary occurred after 7:20 a.m. on October 22,1974. At about 10:50 a.m. Officer Hymon drove past an automobile parked at a service station, with the trunk up and speakers, tape players and other items visible in the trunk. The three male whites who were at the trunk looked furtively at the officer, closed the trunk and immediately moved away. Officer Hymon brought his car back to the scene, and according to the officer, obtained Appellant Smart’s permission to view the contents of the car trunk. Smart told the officer that the car and trunk contents belonged to his girl-friend, and opened the trunk for the officer, who took down the serial numbers of the articles. Upon calling headquarters and learning that no theft report was of record, the officer left the scene, but first obtained the identities of the co-defendants. Subsequently, when the detailed burglary complaint was processed, a memo on the above encounter filed by Officer Hymon with the Burglary Division led to the subsequent arrest of the co-defendants. At that time the contraband had been moved to co-defendant Matlock’s car.

The first assignment of error says that the verdict of the jury was against the greater weight and preponderance of the evidence. Within a matter of hours after the burglary in question the appellant had a substantial amount of the stolen property in the trunk of his automobile. This possession was not satisfactorily explained. Smart did not take the stand, nor did his co-defendant; and Smart’s only witness, an ex-convict named Ingram, claimed that he saw a black man trying to sell the stolen property on the morning in question. This witness took the Fifth Amendment on a query about a prior forgery. We hold that the convicting evidence is legally sufficient. It is settled that the unexplained possession of property recently stolen in a burglary will support a conviction for that burglary. Brown v. State, Tenn.Cr.App., 489 S.W.2d 855 (1972); Capps v. State, Tenn.Cr.App., 523 S.W.2d 213 (1974) (Judge Galbreath dissenting); Cooke v. State, 3 Tenn.Cr.App. 533, 464 S.W.2d 324 (1970); Pruitt v. State, 3 Tenn.Cr.App. 256, 460 S.W.2d 385 (1970); Wyatt v. State, 4 Tenn.Cr.App. 1, 467 S.W.2d 811 (1971).

The next assignment of error presents a Bruton-like question, but in an unusual context. A police officer, Deyling, arrested the co-defendant, Matlock, at a time when Mat-lock was in possession of a substantial quantity of the stolen property. Matlock made certain statements to the officer which tended to exculpate Matlock from the actual burglary, but implicated Smart. In a jury-out hearing the trial judge carefully advised the State that it could not introduce Matlock’s statement implicating Smart, and the prosecuting attorney agreed and avoided doing so. However, counsel for Matlock insisted that he, on behalf of Matlock, had the right to ask the officer on cross-examination about the statement, and was permitted to do so, over the objection of Smart’s attorney. The pertinent portion of the cross-examination was:

“Q. What did he tell you about this merchandise that you later found?
“A. That, well, he stated that he had some of the merchandise in the trunk of his car at that time.
“Q. Did he tell you where he received this merchandise? How he received this merchandise?
“A. As I recall, he stated that he had received it at the service station there.
“Q. Did he tell you from whom he received the merchandise?
“A. Yes, sir, he did.
“Q. And who was that?”
Mr. Roach (counsel for Smart): “Objection, Your Honor.”
The Court: “Alright, I’m going to overrule the objection and on the, Mr. Roach, I’m going to allow him to answer and then I’m going to instruct the jury about the evidence, but I’m going to let you answer that question.”
“A. He stated that he had received it from Kenneth Smart.”
The Court: “Now, ladies and gentlemen of the jury, I knew that was going to be the answer because of some of the earlier investigation and questions of law that I’ve been conducting here. Now, I’m allowing that to be an answer by the officer in response to the question on cross-examination by Mr. Matlock’s attorney, but I’m instructing the jury that you’re not to consider that as evidence in any way against Mr. Smart, the other defendant. In other words, anything that’s said out of Court or is reportedly said out of Court by Mr. Matlock about Mr. Smart’s involvement in this case is not evidence and you may not so consider it as evidence against Mr. Smart. You understand? That’s, but, but I’m allowing the question in response to cross-examination to be answered, but you cannot consider it as going to the guilt or innocence of Mr. Smart. Do you all understand that? I’ll give you further instructions at the conclusion of the case. I wanted to make sure that you understand it at the time you heard it.”
“Q. Officer, did he state to you that he had bought these items or rather was he holding these items for Kenneth Smart?
“A. That he was just holding these items for him.
“Q. Did he actually say to you who the items belonged to? Did he say Kenneth Smart or a girlfriend of Kenneth Smart?
“A. A girlfriend of Kenneth Smart’s.
“Q. Did he give you a reason why he was holding them?
“A. He stated that he was holding these items until Kenneth Smart could find an apartment.”

The trial judge, true to his word, reiterated in his charge that the jury could consider Matlock’s statement only as against Mat-lock, and not against Smart.

The teaching of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), is that the prosecution cannot introduce the confession of a non-testifying co-defendant if it implicates the defendant, even though the jury is instructed not to consider the confession as to the non-confessor implicated therein.

The case at bar is readily distinguishable. The State did not introduce the statement of co-defendant Matlock, but Matlock brought it out on cross-examination. The statement is not very incriminating of Smart, ending by saying that the property belonged to Smart’s girl-friend. And, most importantly, the jury already had before it competent evidence that Smart had the property in his possession shortly after the crime, before it was found in Matlock’s car, and then contended himself that it belonged to his girl-friend, so this evidence was at most cumulative of competent evidence. Furthermore, the trial judge carefully twice instructed the jury not to consider the statement as to Smart. In Bruton itself, it is said:

“Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. * * * It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge’s instructions to disregard such information. * * *”

The record does not reflect that a severance was sought by either co-defendant. The assignment is overruled. Any error is harmless in the context of this case.

The next assignment of error is:

“The Court erred in charging the jury statutes pertaining to parole eligibility, good, time and honor time.” It is not said in the assignment why this was error. This plaint is stated in the Motion for a New Trial in these words:

“8. The Court erred in charging the jury statutes pertaining to parole eligibility, good time and honor time, all of which is prejudicial to the accused and irrelevant, immaterial to the charges and guilt or innocence of the accused. This is an administrative function and not a judicial one.”

Counsel for appellant has filed a supplemental brief, strongly questioning our opinions (as yet unreported) in the cases of Jackson v. State, filed at Jackson on May 6, 1976, Tenn.Cr.App., 539 S.W.2d 337, as was Harold Powell and Sylvester Hayes v. State. Certiorari was denied by our Supreme Court in the Jackson case on July 6, 1976. These opinions require that a viable Farris question [Farris v. State, Tenn., 535 S.W.2d 608 (1976)] be one that was identifiably called to the attention of the trial judge. Prior to the decision in Farris, trial judges were required, under the provision of T.C.A. § 40 — 2707, to give the complained-of charge. It was mandatory. What the Supreme Court ultimately held, three to two, was that the statute was the product of an Act that was broader than its caption, in violation of Art. II, Sec. 17 of the Tennessee Constitution. A majority of the Court put down claims that it violated the separation of powers constitutional provision, or that it was unconstitutionally vague.

It is fundamental to appellate practice that errors must be called to the attention of the trial judge with as much specificity as the alleged error permits. Caruther’s History of a Lawsuit, Eighth Edition, § 421, p. 478, states the rule:

“The grounds stated in the motion [for a new trial] are to be as specific and certain as the nature of the error complained of will admit. An assignment, such as, ‘error in admission and exclusion of evidence’ has been condemned as too general. * * * A similar rule prevails in the appellate courts and those courts will look to the grounds stated in the motion in granting or refusing a new trial.”

Rules 14(5) of the Supreme Court (and this Court) requires specificity in the trial court. The case of Ferguson v. State, 166 Tenn. 308, 61 S.W.2d 467, 468 (1933), holds that the grounds relied on must be specified with reasonable certainty, quoting from an earlier case: “ ‘The grounds set out in the motion should be as specific and certain as the nature of the error complained of will permit’ See also Nunn et al. v. Walker, 186 Tenn. 685, 212 S.W.2d 665 (1948) and Cloyd v. State, 202 Tenn. 694, 308 S.W.2d 467 (1957).

The motion for a new trial, and the assignment of error in this Court, state nothing except that it was error for the trial judge to do what a facially valid statute required him to do. The defect which the Supreme Court struck the statute down upon would not even have been apparent from a study of the codified statute, but would have required a review of the original Public Act. We hold that the trial judge did not err in overruling this completely general attack upon the statute. As the Supreme Court said in Farris (who, incidentally, was not granted relief, for want of a proper assignment):

“This Court operates on the basis of errors assigned for our consideration and we have neither the disposition nor the duty to search the record and decide cases and controversies on the basis of unassigned error.”

Nowhere in this motion for a new trial or assignment of error does it even say that the pertinent statute is unconstitutional, much less state the proper ground. Farris holds that retrospective relief is to be given in only those cases “wherein appropriate assignments have been made”. We hold that this is not such a case.

It is said that the trial court erred in admitting into evidence the information obtained from the search of defendant’s vehicle by Officer Hymon. The theory of the State was that this was a consent search. The trial judge held an admissibility hearing and concluded that the search was by lawful consent. The evidence does not preponderate against that finding, given the trial judge’s acceptance of the State’s proof as true. Echols v. State, Tenn.Cr.App., 517 S.W.2d 18 (1974).

Finally, it is contended that a line-up was improperly conducted and the subsequent in-court identification by Officer Hymon tainted thereby. The trial judge conducted a hearing and found that the line-up was properly held. We agree, and the assignment is overruled.

Affirmed.

WALKER, P. J., concurs.

GALBREATH, Judge

(dissenting).

I respectfully dissent for two reasons.

The first, touching on the inference the majority holds permissible based on the possession of property recently stolen in a burglary, is discussed in great detail in my dissent in Capps v. State. It would be well, in my opinion, if our Supreme Court would pass on this issue.

Secondly, relative to the Matlock statement implicating appellant, it seems to me that the teaching of Bruton is that an accused must be afforded his constitutionally protected right of confronting the witness against him. This should in no way depend on whether the hearsay evidence is offered by the State or on behalf of a co-defendant as the majority seems to infer. While I agree with Judge Russell that the overall effect of the disputed testimony was harmless, I would unequivocally hold that its admission was error.


author: DOUGHTY, Justice. GREENHILL, Chief Justice

text:
    Peggy Ledesma ROGERS, Petitioner, v. Thomas E. SEARLE et ux., Respondents.
    No. B-5915.
    Supreme Court of Texas.
    Nov. 10, 1976.
    Rehearing Denied Dec. 8, 1976.
    Roy Ahrens, Houston, for petitioner.
    James G. Lempert, Houston, for respondents.
   DOUGHTY, Justice.

The parent-child relationship in this case was terminated by a juvenile court in Harris County, and petitioner sought by equitable bill of review to vacate the judgment of termination. After petitioner rested and before respondents offered any evidence, the trial court, acting on respondents’ motion for directed verdict which alleged as a ground therefor that petitioner had not made a prima facie case, withdrew the case from the jury and dismissed the bill of review. The court of civil appeals affirmed. 533 S.W.2d 433. We reverse the court of civil appeals and remand the cause to the trial court.

It is undisputed in this case that petitioner, Peggy Ladesma Rogers, was the mother of Scott Anthony Rogers, a male child born February 6, 1973; that petitioner executed a purported affidavit of relinquishment of parental rights which contained an appointment of respondents, Thomas Eric Searle and wife, Lillian Ruth Searle, managing conservators of the child. The affidavit also contained a waiver of citation.

The judgment of termination of parental rights between petitioner and her child was rendered on December 9, 1974, and although not introduced into evidence at the hearing on petitioner’s motion for bill of review, the parties and the court of civil appeals treated it as a valid judgment on its face.

Subsequent to the rendition of the judgment of termination, petitioner was allowed to visit the child until December 24,1974, at which time Mrs. Searle refused to allow further visitations. No explanation of this refusal was given. Petitioner Rogers did not appear at the trial for termination of parental rights and testimony indicated that it was not until January 7, 1975, when petitioner’s husband inquired at the courthouse, that petitioner learned of the termination of her parental rights.

On January 15, 1975, petitioner filed an equitable bill of review, therein alleging a meritorious defense to the termination proceeding which she was prevented from presenting due to extrinsic fraud on the part of respondents; that she was not negligent in not presenting such defense, nor was she guilty of lack of diligence, and that no other remedy was available to her.

The question to be decided is whether there is evidence in the record to raise a fact issue whether respondents fraudulently induced petitioner to execute the affidavit.

It is undisputed that petitioner executed the affidavit in question, but she contends that respondents’ fraudulent actions amounted to extrinsic fraud and induced her to execute it.

At trial, petitioner was asked the following questions and gave the following answers;

Q ... Is there anything that the Searles or their attorney or any agent for them specifically did to mislead you in your interpretation of this instrument?
A Yes, sir. The lawyer said when I signed that I would have to sign my rights away as far as them being guardians, but that I was not signing adoption papers, and this is what I firmly believed.
Q What did they always tell you they were going to be?
A Well, they couldn’t adopt him so I gathered they would be the guardians. Yes, they had to be guardians. That’s what they said.

These answers are direct evidence raising an issue of fact as to fraudulent representations made to petitioner by respondents to induce her to execute the affidavit of relinquishment and waiver of citation, and without which inducement petitioner would not have executed the instrument. R. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361, 363 (1960).

In passing on the propriety of a directed verdict the court is required to review the evidence and the inferences therefrom in the light most favorable to the petitioner, the losing party in the trial court, and to disregard all evidence and inferences adverse to petitioner. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.1970); Triangle Motors v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953).

We hold that petitioner introduced evidence of extrinsic fraud in the trial court sufficient to raise a fact issue before the jury as to whether respondents made untrue statements to her for the purpose of inducing her to execute the affidavit of relinquishment, and as to whether she executed it because of those statements, and that the trial court abused its discretion in dismissing petitioner’s bill of review. No question has been raised as to the sufficiency of the other elements of proof required in a bill of review. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950); Hanks v. Rosser, 378 S.W.2d 31 (Tex.1964); Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.1965); Gracey v. West, 422 S.W.2d 913 (Tex.1968); French v. Brown, 424 S.W.2d 893 (Tex.1967).

The disposition we have made of the evi-dentiary point makes it unnecessary to consider petitioner’s other points.

The judgments of the trial court and the court of civil appeals are reversed and the cause is remanded to the trial court.

Dissenting opinion by GREENHILL, C. J., in which SAM D. JOHNSON, J., joins.

GREENHILL, Chief Justice

(dissenting).

I regard the testimony set out in the Court’s opinion as being only a scintilla of evidence of fraud on the part of the Searles or their counsel.

I agree with the judgments of the trial court and of the Court of Civil Appeals and with the opinion of the Court of Civil Appeals. 533 S.W.2d 433.

SAM D. JOHNSON, J., joins in this dissent.


author: DOUGHTY, Justice.

text:
    COLONIAL SAVINGS ASSOCIATION, Petitioner, v. Waymon Joel TAYLOR, Respondent.
    No. B-5883.
    Supreme Court of Texas.
    Nov. 24, 1976.
    Rehearing Denied Dec. 22, 1976.

      Vinson, Elkins, Searls, Connally & Smith, Frank C. Gibbs, III, Houston, for petitioner.
    Hicks, Hirsch, Golver & Cochran, Iris Hefter Robinson, Houston, for respondent.
   DOUGHTY, Justice.

This controversy arose because a house owned by respondent, Mr. Taylor, which was destroyed by fire, was not insured. Mr. Taylor sued petitioner, Colonial Savings Association, contending that Colonial had gratuitously assumed responsibility for insuring the house and had negligently failed to do so. Trial was to a jury, which returned a verdict with answers favorable to Mr. Taylor, but the trial court entered judgment non obstante veredicto for Colonial. The court of civil appeals reversed the judgment of the trial court and entered judgment for Taylor for $4,300.00. Tex.Civ.App., 533 S.W.2d 61. We reverse the judgment of the court of civil appeals and remand the cause to the trial court with instructions.

The property involved is located at 846 East 26th Street in Houston. There are two houses at this address, an older house near the street and a newer house behind it. Taylor purchased the property in 1967 from Mr. and Mrs. James E. Reynolds, taking title subject to a prior outstanding lien held by Colonial. In consideration for the conveyance Taylor made four over-due payments to Colonial on the Reynolds note which the property secured. Pursuant to the conveyance, Colonial transferred the mortgage loan to Taylor’s name, and he has made all subsequent payments thereon.

Under the deed of trust held by Colonial, Mr. and Mrs. Reynolds, as grantors, agreed to keep the property insured against fire in an amount sufficient to protect Colonial’s security interest, and that, if grantors failed to obtain such insurance, Colonial could purchase insurance and add its cost to the monthly mortgage payments.

Taylor testified that, when he purchased the property, Mr. Reynolds told him that Colonial had purchased fire insurance and was charging for the premiums along with the mortgage payments. On July 23, 1968, Taylor received the following letter from Colonial:

Mr. Waymon Joel Taylor, Sr.
1232 Richelieu Street
Houston, Texas
Re: Loan 800-0068
Property 846 E. 26th St.
Sunset Heights
Dear Mr. Taylor:
The insurance coverage on the above captioned expired today and we have bound $8,700.00 coverage with our agent on this property.
Please let us know if you now live on this property. If you do reside at this address you may wish to have this coverage written as a home owners instead of a straight fire policy.
Let us know in order that we may have the agent write this coverage.
Yours truly,
/s/ E Priester
Esse Priester

Taylor further testified that after receiving this letter, he informed a representative of Colonial by telephone that he did not reside on the property; he asked the representative about liability coverage for the property, and was referred to the agent who had obtained the fire insurance for Colonial, Mr. C. M. Burton. Taylor talked to Burton about liability insurance but did not purchase any. A few days later Taylor received by mail a memorandum of the fire insurance policy, issued by United States Fidelity and Guaranty Company through its agent Mr. Burton. The policy was effective from July 23, 1968, to July 23, 1971. It provided $8,700.00 in coverage (the amount outstanding on the Reynolds note) and described the property insured as a one-story composition asbestos siding building at 846 East 26th Street in Houston. It is undisputed that this policy covered only the older, larger house on the property, and not the smaller house on the back of the lot. Taylor testified that when he received this policy he only glanced at it to see that it referred to the 26th Street property, and filed it away without examining it further. There was no further correspondence on the subject of insurance until January 7, 1971, when the smaller, uninsured house was substantially damaged by fire. Only after the fire, according to his testimony, did Taylor learn that the house was not covered by the insurance policy which Colonial had obtained.

Taylor sued Colonial, alleging that it was negligent through its agents in failing to purchase a policy of insurance covering the damaged property, and that Colonial’s negligence was a proximate cause of his loss. Colonial contended that it had no duty to provide insurance coverage for Taylor, and that Taylor did not reasonably rely on their letter of July 23, 1968, in failing to obtain his own insurance coverage. Trial was to a jury, which found in answer to special issues that:

(1) Colonial “undertook to provide fire insurance coverage on Mr. Taylor’s premises”;
(2) Colonial or its representatives “were aware that there were two structures on the premises”;
(3) Colonial or its representatives “failed to relay this information to the C. M. Burton Insurance Agency”;
(4) “The failure to relay this information to the C. M. Burton Insurance Agency was negligence”; and
(5) This “negligence was a proximate cause of Mr. Taylor not being able to recover for the fire loss to his property.”

The jury failed to find that Taylor

“failed to make that examination of his policy of insurance as would have been made by a person of ordinary prudence in the exercise of ordinary care would have made under the same or similar circumstances.”

The jury also failed to find that Taylor was negligent in failing to obtain insurance on the damaged house. The jury found that the reasonable cost of repairs to the house was $5,594.20.

The trial court, in response to Colonial’s motion for judgment non obstante veredic-to, entered judgment that Taylor take nothing. The court of civil appeals reversed, holding that Colonial, having undertaken by its letter to Taylor to provide insurance for “this property,” had a duty to Taylor “to act in a non-negligent manner,” and that the evidence was sufficient to support the jury’s findings that Colonial was negligent in failing to provide complete insurance coverage and that such negligence was a proximate cause of Taylor’s loss. The court also held that Taylor’s possession of the policy memorandum did not prevent him from recovering for Colonial’s negligence, because there was evidence that he did not know of the contents of the memorandum and that he had relied on Colonial’s statement that the policy covered “this property.” The court entered judgment for Taylor for $4,350.00, reasoning that, had Colonial provided coverage for the damaged house, recovery would have been limited under the terms of the policy to half the amount of coverage of $8,700.00.

Colonial first contends that Taylor’s claim is “barred by his ratification of the contents of his insurance policy, through inaction, while having the policy in his possession for approximately two and a half years.” Colonial cites National Life Underwriters v. Miller, 274 S.W.2d 169 (Tex.Civ.App. — Fort Worth 1954, no writ), and Sublett v. World Insurance Co., 224 S.W.2d 288 (Tex.Civ.App. —Dallas 1949, no writ), both of which were suits against insurers arising from misrepresentations of insurance agents regarding policy terms and coverage. Recovery was denied in both instances, in part at least on the ground that insureds, having accepted the policies as written, could not later deny knowledge of their contents. The court in Sublett stated, at 224 S.W.2d 289:

One who holds a policy of insurance for several years, or even months, without ascertaining that it was not the policy he ordered, must be deemed to have accepted it in the form in which it was actually issued.

It has been held by some courts that an insured has a legal duty to read his insurance policy, and that if he accepts the policy without objection, he cannot later seek its reformation on the ground that the prior agreement of the parties provided for a different coverage. See Annot., 81 A.L.R.2d 7, 85 (1962), and cases there cited. The prevailing view, however, was stated by this court in Fireman’s Fund Indemnity Co. v. Boyle General Tire Co., 392 S.W.2d 352, 355 (Tex.1965), as follows:

[A]n insured who accepts a policy without dissent, is presumed to know its contents, but the presumption may be overcome by proof that “he did not know its contents when it was accepted, as by showing that when he received it he put it away without examination, or that he relied upon the knowledge of the insurer and supposed he had correctly drawn it.” Delaware Ins. Co. v. Hill, 127 S.W. 283, 286-287 (Tex.Civ.App.1910, writ ref.); .

We believe that the rule stated in Boyle is applicable here. Although Colonial was not an insurance agent or insurer issuing a policy to Taylor for consideration, Colonial did voluntarily undertake to provide insurance coverage for Taylor’s property (as found by the jury), and in this undertaking Colonial’s duty was similar to that of an insurance agent. Taylor’s testimony that he put the policy memorandum away without reading it destroyed the presumption that he was aware of its provisions, and because he did not read the policy he could not “ratify” its contents. It thus became Colonial’s burden to prove that Taylor was negligent in failing to read the policy. See Schustrin v. Globe Indemnity Co., 44 N.J.Super. 462, 130 A.2d 897 (1957). Because the jury found that Taylor was not negligent — a finding for which there is support in the evidence — his failure to read the policy does not bar his recovery.

Colonial next contends that the court of civil appeals erred in holding that it had a legal duty to insure all improvements on Taylor’s property, and in holding that the deed of trust between it and Reynolds established any duty owed by it to Taylor. We agree that any duty owed by Colonial to Taylor cannot rest upon the terms of the deed of trust, because Taylor did not assume the indebtedness when he purchased the property, and thus was not a party to the deed of trust. However, Taylor’s theory of recovery is based, not upon the deed of trust, but upon Colonial’s letter of July 23 in which it stated that “we have bound $8,700.00 coverage with our agent on this property.” Taylor contends that Colonial gratuitously undertook a duty, as shown by this letter, to provide coverage for all of his property at 846 East 26th Street, including the house which was damaged by fire. Taylor’s theory of recovery, as revealed by the issues submitted to the jury, was based on the rule that one who voluntarily undertakes an affirmative course of action for the benefit of another has a duty to exercise reasonable care that the other’s person or property will not be injured thereby. This proposition has long been recognized by the courts of this State. See Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517 (1922). The rule is stated in the Restatement (Second) of Torts § 323 (1965) as follows:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.

The jury found that Colonial had undertaken to provide fire insurance coverage for both houses, and the letter of July 23 is support for that finding. It necessarily follows that Colonial, having undertaken to obtain coverage, had a duty to exercise reasonable care to perform this undertaking.

Colonial contends that Taylor had the burden of showing not only the existence of a duty and negligence in its performance, but also that Taylor relied on Colonial’s undertaking to provide insurance, in order to establish Colonial’s liability. The rule as stated in Section 323 of the Restatement, quoted above, imposes liability for injuries caused by the negligent performance of a gratuitous undertaking, if (a) the actor’s negligence has increased the risk of physical harm, or (b) the injured party has relied upon the undertaking. Taylor argues that reliance was not a necessary element of his cause of action because Colonial’s negligence increased the risk of harm. We disagree. Colonial’s failure to obtain insurance on the house did not increase the risk of fire to the house. If Taylor did not intend to insure the house against loss by fire in any case, then Colonial’s failure to provide insurance would have left Taylor in no worse 'condition than if Colonial had never undertaken to provide insurance in the first place. Had Taylor never learned of Colonial’s undertaking to provide insur-anee, he certainly could not be heard to say that Colonial should be liable for failing to do so, because the loss would be as much a result of his own failure to obtain insurance as of Colonial’s. We hold, therefore, that Colonial cannot be liable for Taylor’s loss unless Taylor forbore from obtaining his own insurance in reliance upon Colonial’s undertaking to obtain it for him.

No issue was requested or submitted to the jury inquiring whether Taylor relied on Colonial’s undertaking to obtain insurance for him, nor did Colonial object to the failure to submit such an issue. There is evidence in the record which created an issue of fact as to whether Taylor relied on Colonial’s undertaking to provide insurance. This court has previously faced a similar situation. Rodriguez v. Higginbotham-Bailey-Logan Co., 138 Tex. 476, 160 S.W.2d 234 (1942), was a suit to recover on a contract made by the defendant’s alleged agent. The court stated that two essential elements were necessary to sustain plaintiff’s alleged ground of recovery; first, that the contract was entered into by the alleged agent, and secondly, that the alleged agent had authority to bind his principal. The first issue was submitted to the jury which found that the contract had been made. No issue was submitted, and none requested, as to whether the alleged agent had the authority to make the contract. Judgment was entered for defendant upon its motion non obstante veredicto. Chief Justice Alexander, writing for the court, said:

* * * The authority for a trial court to render judgment non obstante veredic-to is found in the second part of Article 2211, Vernon’s Annotated Civil Statutes, which provides: “ * * * upon motion and reasonable notice the Court may render judgment non obstante veredicto if a directed verdict would have been proper, * * * »
Under the above statute, judgment non obstante veredicto can be rendered only when the facts are such that an instructed verdict would have been proper. If the evidence had been undisputed that the alleged agent did not make the agreement, or that he did not have authority to make it, the court could have rendered judgment for the defendant non obstante veredicto. But the Court of Civil Appeals concluded that the evidence on both of these issues was in dispute, and we are in accord with this view. Therefore, the court had no authority to render judgment non obstante veredicto. When the court renders judgment non obstante ve-redicto it is equivalent to a finding that there was no evidence to raise an issue for the jury, and consequently there is no presumption of a finding by the court on disputed issues of fact. . . . Since there was a dispute in the evidence, the trial court erred in rendering judgment non obstante veredicto.

Rule 301, Texas Rules of Civil Procedure, is identical to Article 2211, referred to by Chief Justice Alexander. Since there was evidence to support the disregarded findings of the jury in answer to special issues 3, 4 and 5, and there was a disputed fact issue on Taylor’s reliance on Colonial to obtain insurance on the two structures, it was error for the trial court to grant Colonial’s motion for judgment non obstante veredicto, and there can be no presumption of a finding by the court on the disputed reliance issue. Hall v. Hard, 160 Tex. 565, 335 S.W.2d 584 (1960); Neyland v. Brown, 141 Tex. 253, 170 S.W.2d 207 (1943).

There being no request for a jury issue on the question of Taylor’s reliance, and no objection to the failure to submit the issue, it was for the trial court to make a finding on the disputed evidence. Rule 279, Texas Rules of Civil Procedure. We therefore remand the cause to the trial court with instructions to proceed as though no judgment non obstante veredicto had been entered.

The judgments of the trial court and the court of civil appeals are reversed, and the cause remanded to the trial court with instructions to proceed as though judgment non obstante veredicto had not been rendered.

      . To the extent that Miller and Sublett are inconsistent with the rule stated in Boyle, they are hereby disapproved.

      . The principle enunciated in Section 323 of the Restatement has been applied in several cases where a party has gratuitously undertaken to provide insurance for another and negligently failed to do so. See Criswell v. Riley, 5 Ind.App. 496, 30 N.E. 1101, 32 N.E. 814 (1892); Maddock v. Riggs, 106 Kan. 808, 190 P. 12 (1920); Siegel v. Speal & Co., 195 App.Div. 845, 187 N.Y.S. 284 (1921), affirmed 234 N.Y. 479, 138 N.E. 414 (1923); Valdez v. Taylor Automobile Co., 129 Cal.App.2d 810, 278 P.2d 91 (1955).


author: STEAKLEY, Justice.

text:
    Jessie James SMITH, Petitioner, v. Kaffie Marie SMITH, Respondent.
    No. B-5981.
    Supreme Court of Texas.
    Dec. 1, 1976.
    Rehearing Denied Dec. 31, 1976.

      John L. Fulbright, Beaumont, for petitioner.
    Adams & Browne, Ernest J. Browne, Beaumont, for respondent.
   STEAKLEY, Justice.

This is a divorce case in which we have jurisdiction because the Court of Civil Appeals held differently from prior decisions of this Court in the respects later shown. See Articles 1821 and 1728.

Petitioner, Jessie James Smith, was the defendant in his wife’s suit for divorce and for other relief. He filed responsive pleadings but did not appear personally or by counsel at the hearing on the merits. The trial court rendered judgment granting the divorce and awarding the wife custody of the minor child. Further, the judgment partitioned the community property and awarded the wife certain assets claimed to be her separate property. The judgment contained this recitation: “[a]nd came the Plaintiff in person and by her attorney of record and the Defendant was duly cited and his attorneys of record filed answers herein, and due notice had been given of the setting of this case to all parties and said cause was duly and regularly set for trial, and said cause was duly set on the non-jury docket; and a jury being waived; and the Court proceeded to hear the pleadings, evidence and argument of counsel and being of the opinion that the allegations of the Plaintiff’s petition and her applications are true and correct and that she is entitled to a divorce; it is therefore, . . . .”

Petitioner prosecuted an appeal by writ of error from this judgment. See Articles 2255 and 2249a. He filed a motion for a statement of facts and a hearing was held. As stated by the Court of Civil Appeals:

“In the case at bar, it was shown that the official court reporter did not participate in the hearing and was unable to furnish a statement of facts and the trial judge stated into the record that he had no independent memory of the facts adduced and could not (and would not) attempt to prepare a narrative statement of facts.”

Notwithstanding, the Court of Civil Appeals ruled that this showing of Petitioner’s inability to obtain a statement of facts did not entitle him to a reversal of the judgment. The rationale of the court was that the alleged invalidity of the judgment is not disclosed by the papers on file in the case; and, further, that Petitioner had not alleged a meritorious defense or explained his failure to appear at the hearing on the merits. 535 S.W.2d 380.

In Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697 (1936), the trial court instructed a verdict for the defendants in the trial of a suit in trespass to try title and for damages. All parties participated in the trial with a court reporter present. The plaintiffs prosecuted an appeal for writ of error and it was shown that they were unable to obtain a statement of facts because of the death of the court reporter before transcribing his notes. This Court affirmed a reversal and remand of the cause by the Court of Civil Appeals. We held in that appeal for writ of error that a litigant’s right to have the case reviewed on appeal can be preserved in no other way than by a retrial of the case if after diligence he is unable to procure a statement of facts. The writ of error in our practice is but another mode of appeal. Smith & Janes v. Gerlach, et al., 2 Tex. 424 (1847). See also Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.1965). In Robinson v. Robinson, 487 S.W.2d 713 (Tex.1972), we held that if an appealing party exercises due diligence and through no fault of his own is unable to obtain a proper record of the evidence introduced, this may require a new trial where his right to have the case reviewed on appeal can be preserved in no other way. See also Wallace v. Snyder National Bank, 527 S.W.2d 485 (Tex.Civ.App.1975, writ ref’d n. r. e.); Fitz v. Toungate, 419 S.W.2d 708 (Tex.Civ.App.1967, writ ref’d n. r. e.); Dugie v. Dugie, 511 S.W.2d 623 (Tex.Civ.App.1974, no writ).

In McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961), we held that relief may be obtained by prosecuting writ of error to the Court of Civil Appeals where the invalidity of the judgment of the trial court is disclosed by the papers on file in the case. In Pace Sports, Inc. v. Davis Brothers Publishing Co., Inc., 514 S.W.2d 247 (Tex.1974), we refused writ of error and wrote:

Our action is not to be interpreted as approving that portion of the opinion of the Court of Civil Appeals stating that the parties appealing by way of writ of error to the Court of Civil Appeals under Article 2255, V.A.C.S., must show that they were not negligent in suffering default judgment to be rendered against them or that they have a meritorious defense to the plaintiff’s action which they were prevented from making by fraud, accident or wrongful act of the opposite party. This Court, in McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961), held that a party appealing to the Court of Civil Appeals by writ of error within six months of final judgment may obtain relief if the invalidity of the judgment is disclosed by the papers on file in the case.

It is thus apparent that the holding of the Court of Civil Appeals here is in conflict with the decisions of this Court reviewed above, and that conflict jurisdiction has been shown. Following these precedents, we rule that Petitioner has established his right to a retrial of this case because of his inability to procure a statement of facts; that in such respect the invalidity of the judgment from which he appealed by writ of error is disclosed by the papers on file in the case; and that the Court of Civil Appeals was in error in affirming the judgment.

Accordingly, the judgment of the Court of Civil Appeals is reversed and the cause is remanded to the trial court.

      . All references are to Texas Revised Civil Statutes Annotated.