author: CARNEY, Presiding Judge.

text:
    Bill FULLER and wife, Mary Ruth Fuller, Plaintiffs-Appellees, v. ORKIN EXTERMINATING COMPANY, INC., Defendant-Appellant.
    Court of Appeals of Tennessee, Western Section.
    Nov. 18, 1975.
    Certiorari Denied by Supreme Court Feb. 23, 1976.

      William B. Aeree, Jr. and Elam, Glasgow, Tanner & Aeree, Union City, for defendant-appellant.
    ■ Charles E. Maness and Maness, Conley & Hayes, Union City, for plaintiffs-appellees.
   CARNEY, Presiding Judge.

The Defendant below, Orkin Exterminating Company, Inc., has appealed from a decree of the Chancery Court of Obion County, Tennessee, awarding a judgment in favor of the Plaintiffs Bill Fuller and wife, Mary Ruth Fuller, in the amount of $15,-375.00 resulting from termite damage to the Plaintiffs’ residence in Union City, Tennessee. Fifteen thousand dollars was for damages to the home and $375.00 represented inconvenience to the Plaintiffs during the period of the repairs.

Plaintiffs’ home was of wooden construction, one story with a basement containing approximately 3,800 square feet of living space. It had been enlarged and improved on at least two occasions at a total cost of approximately $35,000. The external walls consisted of ¾ inch wood sheathing, mason-ite siding, black felt paper and aluminum siding. The home had been treated for termites by a company other than Defendant sometime about 1962 or 1963. It was treated by Defendant Orkin for termites under written contract on April 10, 1972.

At the time of the treatment by Defendant Orkin, the Plaintiff paid $267.00 plus $30.00 for a one-year renewal which gave the Plaintiffs “Orkin Continuous Protection Guaranty” through April 1974 with another $30.00 payment due in April 1974 for the succeeding year. A copy of the Orkin Retail Installment Contract containing one sheet printed on two sides is attached to this opinion as Appendix A.

Though the evidence was sharply in conflict on this question, His Honor the Chancellor found that the termite damage to the Plaintiffs’ residence developed after the Defendant Orkin completed its initial treatment of the residence on April 10,1972. No “Lifetime Control (LC)” guaranty was ever issued by Orkin to the Plaintiffs as indicated on the front of the Retail Installment Contract but Plaintiffs were given a copy of the Orkin Retail Installment Contract.

Plaintiff testified he understood that he was getting the Special Total Protection Lifetime Subterranean Guaranty described on the back of the Retail Installment Contract with a limit of $100,000 repairs to be paid by Defendant. For convenience, we copy pertinent parts of the Retail Contract as follows:

“ORKIN CONTINUOUS PROTECTION GUARANTY
Orkin’s Continuous Protection Guaranty will provide protection of the above named property including Annual Rein-spections upon payment of the initial charges and an Annual Renewal Payment of $30.00 starting April 1974 and each April thereafter.
The type of Guaranty checked above will be issued and delivered to the Purchaser upon completion of initial treatment. Guaranty will be effective for an initial period of 24 months and thereafter so long as payments are made in accordance with the Terms and Conditions of this Contract.
If order covers fumigation, Orkin assumes no responsibility for roof damage or shrub damage caused during fumigation procedure unless said damage results directly from Orkin’s sole negligence. This agreement shall be comprised of the Contract, the Graph and Specification Sheets which bear the above-stated Contract Number, the General Terms and Conditions as they appear on the reverse side and upon issuance, the Guaranty.
SPECIAL TOTAL PROTECTION LIFETIME SUBTERRANEAN TERMITE GUARANTY
Subject to the general terms and conditions, Orkin will issue special total protection lifetime subterranean termite guaranty and, at no extra cost, make such repairs to the structure and contents to remedy any new damage caused by subterranean termites, provided that it is established that said new damage was caused by subterranean termites after the date of initial treatment and that at the time of discovery of the new damage, the damaged areas are infested with live subterranean termites. Orkin will be responsible for such repairs only when made with Orkin approval and under Or-kin supervision and control. The purchaser further understands that Orkin’s liability for such repairs shall in no event exceed $100,000.00 aggregate loss and is limited to structural and contents damage.
SUBTERRANEAN TERMITE CONTROL GUARANTY
Subject to the general terms and conditions, Orkin will issue a control guaranty and, at no extra cost, apply any necessary additional treatment to the premises if reinfestation is found therein during the period of the guarantee. The purchaser further understands that Orkin’s liability under this agreement is limited to re-treatment only and in no way, implied or otherwise, is responsible for damages or repairs to the structure or contents.
GENERAL TERMS AND CONDITIONS
1. It is agreed that under this contract. ORKIN is not responsible for the repair of visible damage existing as of the date of this contract except as such damage is described on the Graph and Specification Sheet and for which a specific charge for the repair of same is made. It is possible that damage may, as of the date of this contract, exist in unexposed areas of the structure or in areas which are inaccessible to visual inspection. For this reason ORKIN cannot guarantee that the damage disclosed by visual inspection of the premises (and which is indicated on the Graph and Specification Sheet) represents the entirety of the damage which may exist as of the date of initial treatment. It is specifically understood, therefore, that ORKIN shall not be responsible for the repair of any damage which existed in areas or in structural members which were not accessible for visual inspection as of the date of this contract.
2. If moisture and/or structural conditions which are conducive to Subterranean Termites are subsequently found to exist, then ORKIN shall be relieved of any and all liability for damage repairs.
3. Structural or mechanical defects which result in water leakage in interior areas or through the roof or exterior walls of the premises may destroy the effectiveness of ORKIN’S treatment, thereby permitting infestation to continue after the date of initial treatment. If such a condition is discovered, it is agreed that the customer will be responsible for making such repairs as are necessary to correct the structural or mechanical defect and ORKIN will, upon completion of said repairs, provide additional treatment deemed necessary by the Company to control the infestation in the area. . . .”

The Defendant contended:

(1) The contract with Plaintiffs did not provide for repairs to the home but only for re-treating the home; that the home was not eligible under Orkin’s practices for a repair contract; and

(2) That most of the damages allowed by the Chancellor were expressly excluded from the Repair Contract because they could not be seen in visual examination and/or had occurred prior to April 1972.

The Chancellor held the retail contract to be patently ambiguous and disallowed Plaintiff Bill Fuller’s testimony that he understood from Defendant’s agent, Morgan, that he, Fuller, was getting a $100,000 Repair Guaranty. However, the Chancellor held the patent ambiguity in the contract should be construed against Orkin as the author of the contract.

The Chancellor also found that the Plaintiffs’ house was not adequately treated by Defendant’s employees in April 1972; that Defendant’s employees failed to reinspect and/or re-treat in 1973 and did not re-treat the home until November 1974 when Plain-stiffs threatened a lawsuit.

Assignment of error No. I assails the action of the Chancellor in holding the Retail Installment Contract ambiguous and in construing the same against Orkin so as to entitle the Plaintiff to recover under the “Special Total Protection Lifetime Subterranean Termite Guaranty” copied herein-above and printed in large type on the back of the contract. It is the contention of Appellant Orkin that only a Lifetime Control Guaranty was to issue to the Plaintiff and that this Lifetime Control Guaranty did not include any repairs to Plaintiffs’ dwelling. No Lifetime Control Guaranty except as shown on the reverse of the contract ever issued to the Plaintiffs. For some unexplained reason, Defendant-Appellant never furnished the Court a copy of the Lifetime Control Guaranty which it contends is usually issued by the company in such cases. Defendant was requested to file a copy of such guaranty. Copies of the Graph and Specification Sheets referred to on the front of the contract were never furnished to Plaintiffs before the trial.

We agree with His Honor the Chancellor that the Retail Installment Contract is, in fact, ambiguous. Probably Plaintiff’s testimony that Orkin’s manager told him at the time of completion of the treating and delivery of the Retail Installment Contract that Fuller had the Lifetime $100,000 Guaranty shown at the top of the back page of the Contract was admissible under Turner v. Zager, 50 Tenn.App. 674, 363 S.W.2d 512 (1962). Plaintiffs have not assigned error on the Chancellor’s rejection and we do not find it necessary to rule on said question on this appeal.

It is the contention of the Defendant Orkin that on the front of the Contract in small type the various types of guarantees were printed and the type of guarantee which Plaintiffs were to receive was shown clearly by the check mark indicating “Lifetime Control (LC)”; that the checking of this block expressly excluded “Lifetime Control and Repair (LR)” which was not checked. This argument would be much more persuasive if the difference in the two guarantees were spelled out explicitly elsewhere in the contract. On the contrary, it appears that the draftsman used the word “lifetime” on both guarantees on the front side of the Contract and then failed intentionally to define clearly the difference in the two termite guarantees on the back side of the Contract. In one guaranty he used the word “lifetime” which covered repairs and in the other guaranty which did not cover repairs and provided only for retreatment, he failed to use the word “lifetime.”

From reading the testimony together with the contract in its entirety, it appears that the Defendant might have made the contract ambiguous as a method of escape, that is, to provide repair in cases of minor damage and refuse repair in cases of major damage. His Honor the Chancellor very correctly applied the rule of construction of long standing in Tennessee that ambiguous language in a contract will be construed most strongly against the author of the language. Marron v. Scarbrough, 44 Tenn.App. 414, 314 S.W.2d 165 (1958); Turner v. Zager, 50 Tenn.App. 674, 363 S.W.2d 512 (1962); Associated Press v. WGNS, Inc., 48 Tenn.App. 407, 348 S.W.2d 507 (1961); Hanover Ins. Co. v. Haney, 221 Tenn. 148, 425 S.W.2d 590 (1968). We concur in the holding of the Chancellor that the Defendant is obligated to make repairs to Plaintiffs’ home under the “Special Total Protection Lifetime Subterranean Termite Guaranty” printed at the top of the back page of the Contract and copied herein-above to a maximum amount of $100,000. Assignment of error No. I is, therefore, respectfully overruled.

We also concur in His Honor the Chancellor’s finding that the Plaintiffs’ home was not adequately treated by the Defendant’s employees in April 1972; that the Defendant’s employees failed to reinspect and/or re-treat the home in 1973 and did not retreat the home until November 1974 when Plaintiffs threatened to sue the Defendant. Plaintiffs gave written notice as required by General Condition No. 5 of the Contract. The evidence was sharply controverted. We deem it unnecessary to restate the evidence. Assignments of error Nos. II, III, and IV are respectfully overruled.

Ronnie Hunt, Harold Ray and Marvin Blakemore, builders of Obion County, Tennessee, testified as witnesses for the Plaintiffs that the cost of repairs of the termite damage would, in their opinion, be respectively $21,000, $21,750, and $25,000. Hunt gave as his opinion that the home without termite damage was worth $52,000 and $12,000 with the termite damage at present. Harold Ray testified that the home was worth $50,000 without termite damage and worth $25,000 with the termite damage.

Defendant’s witness, Buck Kirk, a builder of Union City, Tennessee, with ten years’ experience, testified that a great deal of the damage to the walls of the Plaintiffs’ home was caused from fungus or dry rot resulting from the moisture which had accumulated as a result of the aluminum siding, masonite siding and felt on the exterior walls. Kirk testified that it was very difficult to tell the difference between the two types of damage and that in many instances, the damages from fungus was greater than termite damage; that in his opinion a great deal of the damage done to the Plaintiffs’ home was a result of moisture and fungus. He estimated the cost of repairs for termite damage to be $3,000 to $4,000. However, he said that he would not take the contract for repairs except on a cost-plus basis.

The Plaintiffs’ home and 2.9 acres were assessed at $17,680 for 1972. Defendant Orkin introduced no other proof as to the value of the home before or after the damage or as to the cost of repairs. Plaintiff Bill Fuller testified the valuation of his home for tax purposes was made by the Yoh Company for Obion County, Tennessee, in 1969 while he was doing the last remodeling.

Assignment of error No. Y insists that His Honor the Chancellor erred in permitting the Plaintiffs’ witnesses, Hunt and Ray, to testify to the value of the property before and after the damage because they didn’t know the date upon which to base the value and the repair was based on cost of replacement rather than upon fair market value.

By assignment of error No. VI the Appellant contends that it was error for the Chancellor to permit the witnesses, Ray, Hunt and Blakemore, to testify as to the costs of repairs because such testimony was highly speculative and included damage not caused by termites and because the measure of cost of repairs was not the proper measure of damages.

Our appellate courts have uniformly held that the measure of damages for injury to real estate is the difference between the reasonable market value of the premises immediately prior to and immediately after injury but if the reasonable cost of repairing the injury is less than the depreciation in value, the cost of repair is the lawful measure of damages. Williams v. Southern Ry., 55 Tenn.App. 81, 396 S.W.2d 98 (1965). Of course, the trier of fact can also take into consideration the reasonable cost of restoring the property to its former condition in arriving at the difference in value immediately before and after the injury to the premises. McKinnon v. Michaud, 37 Tenn.App. 148, 260 S.W.2d 721 (1953); McCormick on Damages, 483, Section 126.

In Third National Bank v. Goodlett Realty Co., 58 Tenn.App. 48, 425 S.W.2d 783 (1967), the Court of Appeals awarded judgment for damages to a brick wall based on the cost of repair and in the opinion gave no discussion concerning the difference in value immediately before and after injury. Probably, it was because the cost of repair was less than the difference in value or was the only measure of the difference in value.

His Honor the Chancellor took judicial notice that real estate in the Union City area had greatly increased in value since 1969 and that Plaintiffs’ home may have been worth $50,000 but “the Court cannot go along with it being worth that much.” He did not determine such value. Apparently, the Court decided that the measure of damages in this case as in Third National Bank v. Goodlett Realty Co., supra, was the cost of repair. He stated that Plaintiffs’ witnesses proved damages of about $20,000 so he unquestionably was referring to cost of repair. Witness Hunt had estimated the difference in value at $40,000 and witness Ray at $25,000. The Chancellor then set Plaintiffs’ damages to the house at $15,000, 25 percent less than the lowest amount given by Plaintiffs’ witnesses.

As His Honor the Chancellor so aptly commented, Orkin could have eliminated a lot of the questions regarding the amount of damage to the home by doing the repairs itself. On the contrary, its position has been consistently that it is not liable for anything under the contract except the obligation to re-treat the property with pesticide on demand of the Plaintiffs. We hold that the testimony of Plaintiffs’ witnesses was admissible. Assignments of error V and VI are respectfully overruled.

Assignments of error VII and VIII that the evidence preponderates against the decision of the Chancellor and that the damages were excessive are overruled.

Assignment of error No. IX insists that the Court erred in not sustaining Defendant’s motion for summary judgment and in holding that the Uniform Commercial Code Section alleged in the complaint applied to this transaction. Plaintiffs had alleged that they were entitled to redress under T.C.A. Sections 47-2-313, 47-2-314, 47-2-315, 47-2-317 and specifically claimed incidental damages under 47-2-714 and 47-2-715. We agree that the Uniform Commercial Code applies only to the sale of goods; that the Plaintiffs did not allege any damages from purchase of goods or chattels. Plaintiffs’ suit was based on breach of contract for services rendered and to be rendered. The Chancellor properly refused to dismiss Plaintiffs’ suit on summary judgment but he should have stricken all references in the complaint based on the Uniform Commercial Code. We hold that the award of $15,000 for breach of contract to treat properly and to reinspeet the Plaintiffs’ home was within the scope of Plaintiffs’ complaint. Assignment of error No. IX is respectfully overruled.

Assignment of error No. X insists that the Chancellor erred in allowing $375.00 as incidental damages for inconvenience to Plaintiffs during the repairs to the home. Plaintiffs’ right to recover is for breach pf the Special Total Protection Lifetime Guaranty copied above. Under this guaranty, the Defendant agreed to make the repairs but did not agree to pay incidental damages. If Defendant had made the repairs, Plaintiffs would have been inconvenienced. Incidental damages during repairs were not within the contemplation of the parties and Plaintiffs cannot recover them. West Const. Co. v. Seaboard Air Line Ry. Co., 141 Tenn. 342, 210 S.W. 633 (1918); Hawkins v. Reynolds, 62 Tenn.App. 686, 467 S.W.2d 791 (1971).

Assignment of error No. X is sustained. The decree below is modified and affirmed with judgment for Plaintiffs for $15,000 with interest from December 19, 1974, the date of judgment below. The costs in the Court below are taxed to Defendant; the costs in this Court are taxed three-fourths to Defendant and one-fourth to Plaintiffs.

MATHERNE and NEARN, JJ., concur.

APPENDIX A

SPECIAL TOTAL PROTECTION LIFETIME SUBTERRANEAN TERMITE GUARANTY

SUBJECT TO THE GENERAL TERMS AND CONDITIONS, ORKIN v*ILL ISSUE SPECIAL TOTAL PROTECTION LIFETIME SUBTERRANEAN TERMITE GUARANTY AND, AT NO EXTRA COST, MAKE SUCH REPAIRS TO THE STRUCTURE AND CONTENTS TO REMEDY ANY NEW DAMAGE CAUSED BY SUBTERRANEAN TERMITES, PROVIDED THAT IT IS ESTABLISHED THAT SAID NEW DAMAGE WAS CAUSED 3Y SUBTERRANEAN TERMITES AFTER THE DATE OF INITIAL TREATMENT AND THAT AT THE TIME OF DISCOVERY OF THE NEW DAMAGE, THE DAMAGED AREAS ARE/ INFESTED WITH LIVE SUBTERRANEAN TERMITES ORKIN WILL BE RESPONSIBLE FOR SUCH REPAIRS ONLY WHEN MADE WITH ORKIN APPROVAL AND UNDER ORKIN SUPERVISION AND CONTROL. THE PURCHASER FURTHER UNDERSTANDS THAT ORKIN'S LIABILITY FOR SUCH REPAIRS SHALL IN NO EVENT EXCEED $100,000,00 AGGREGATE LOSS AND IS LIMITED TO STRUCTURAL AND CONTENTS DAMAGE._

DRYWOOD TERMITE DAMAGE GUARANTY (FUMIGATION TREATMENT ONLY)

SUBJECT TO THE GENERAL TERMS AND CONDITIONS, ORKIN WILL FUMIGATE THE STRUCTURE FOR THE CONTROL OF DRYWOOD TERMITES, AND WILL ISSUE A CONTROL AND REPAIR GUARANTY WHICH WILL PROVIDE FOR RETREATMENT AND REPAIRS AT'NO EXTRA COST, SHOULD A REINFESTATION BE DISCOVERED DURING THE PERIOD THE GUARANTY IS IN FORCE, THE PURCHASER FURTHER UNDERSTANDS THAT ORKIN'S LIABILITY FOR SUCH REPAIRS SHALL IN NO EVENT EXCEED $100,000.00 AGGREGATE LOSS AND IS LIMITED TO STRUCTURAL AND CONTENTS DAMAGE. THIS GUARANTY IS FOR A MAXIMUM PERIOD OF FIVE YEARS FROM DATE OF ISSUE. »

SUBTERRANEAN TERMITE CONTROL GUARANTY

SUBJECT TO THE GENERAL TERMS AND CONDITIONS, ORKIN WILL ISSUE A CONTROL GUARANTY AND, AT NO EXTRA COST, APPLY ANY NECESSARY ADDITIONAL TREATMENT TO THE PREMISES IF REINFESTATION IS FOUND THEREIN DURING THE PERIOD OF THE GUARANTEE. THE PURCHASER FURTHER UNDERSTANDS THAT ORKIN’S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO RETREATMENT ONLY AND IN NO WAY, IMPLIED OR OTHERWISE, IS RESPONSIBLE FOR‘DAMAGES OR REPAIRS TO THE STRUCTURE OR CONTENTS.

POWDER "POST” BEETLE GUARANTY (LIQUID CHEMICAL TREATMENT ONLY)

SUBJECT TO THE GENERAL TERMS AND CONDITIONS, ORKIN WILL APPLY CHEMICAL TREATMENT (RESTRICTED TO THE UNDERSTRUCTURE OF THE PREMISES NOT INCLUDING AREAS ABOVE THE FIRST FLOOR LEVEL). SHOULD REINFESTATION BE FOUND IN THE TREATED AREAS. ORKIN WILL, AT NO EXTRA COSt, PROVIDE ADDITIONAL TREATMENT TO CONTROL THE INFESTATION. THE PURCHASER UNDERSTANDS THAT ORKIN'-S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO RETREATMENT ONLY AND IN NO WAY, IMPLIED’OR OTHERWISE, IS RESPONSIBLE FOR DAMAGES OR REPAIRS TO THE STRUCTURE OR CONTENTS._

DRYWOOD TERMITE, POWDER POST BEETLE OR WOOD BORER GUARANTY (FUMIGATION TREATMENT ONLY)

SUBJECT TO THE GENERAL TERMS AND CONDITIONS, ORKIN WILL FUMIGATE THE STRUCTURE FOR EITHER THE CONTROL OF DRYWOOD TERMITES, POWDER POST BEETLES OR WOOD BORERS, AS INDICATED, AND WILL ISSUE A CONTROL GUARANTY WHICH WILL PROVIDE FOR RETREATMENT AT NO EXTRA COST, SHOULD A REINFESTATION BE DISCOVERED DURING THE PERIOD THE GUARANTY IS IN FORCE. THE PURCHASER FURTHER UNDERSTANDS THAT THIS GUARANTY IS FOR A MAXIMUM PERIOD OF FIVE YEARS FROM DATE OF ISSUE. THE PURCHASER FURTHER UNDERSTANDS THAT ORKIN'S LIABILITY UNDER THIS AG REEMENT IS LIMITED TO RETREATMENT ONLY AND IN NO WAY, IMPLIED OR OTHERWISE, IS RESPONSIBLE FOR DAMAGES OR REPAIRS TO THE STRUCTURE OR CONTENTS._

GENERAL TERMS AND CONDITIONS

1. It is agreed that under this contract, ORKIN is not responsible for the repair of visible damage existing as of the date of this contract except as such damoge is described on the Graph ond Specification Sheet ond for which a specific chorge for the repair of same is made, ft is possible that damage may, as of the dote of this contract, exist in unexposed areas of the structure or in areas which are inaccessible to visual inspection. For this reason ORKIN cannot guarantee that the damage disclosed by visual inspection of the premises (ond which is indicated on the Graph ond Specification Sheet) represents the entirety of the damage which may exist as of the date of initial treatment. It is specifically understood, therefore, thot ORKIN shall not be responsible for the repair of any damage which existed in areas or in structural members which were not accessible for visual inspection os of the dote of this contract.

2. If moisture and or structural conditions which are conducive to Subterranean Termites are subsequently found to exist, then ORKIN shall be relieved of any and all liability for damage repairs.

3. Structural or mechanical defects which result in water leakage in interior areas or through the roof or exterior walls of the premises may destroy the effectiveness of ORKIN’S treatment, thereby permitting infestation to continue after the date of initial treatment. If such a condition is discovered, it is agreed that the customer will be responsible for making such repairs as are necessary to correct the structural or mechanical defect and ORKIN will, upon completion of soid repairs, provide additional treatment deemed necessary by the Company to control the infestation m the oreo.

4. Any cloim for breoch of any Guaranty shall be made forthwith in writing to so»d ORKIN EXTERMINATING COMPANY, INC., 2170 Piedmont Road, N. E., Atlonto, Georgia 30324. No suit shall lie hereunder unless the provisions of Paragraph 5 hove been complied with and unless brought within one (1) year ofter the making of said written demand.

5. ORKIN'S liability shall be terminated should ORKIN be prevented from fulfilling its responsibilities under the terms of the Contract or the Guaronty by reason of Acts of war, whether declored or undeclared, Acts of any duly constituted Government Authority, strikes, Acts of God or refusal by the customer to allow ORKIN access to the premises for the purpose of carrying out the terms and conditions of this agreement.

6. This agreement covers the premises diagramed on the Graph and Specification Sheet bearing the Contract Number as of the date of actual treatment, and in the event the premises ore structurally modified, altered or otherwise changed after date of initial treatment, this agreement shall terminate unless a prior written agreement shall have been entered into between the Owner and the Company to reinspect the premises, provide additional treatment and or ad|ust the Annual Renewal Fee.

7. It is understood and ogreed between the parties that this contract, the Groph ond Specification Sheets which bear this Contract Number and, upon issuance, the Guaranty constitute the complete agreement between the parties and that said agreement may not be chonged or altered in any manner, oral or otherwise, by any representative of ORKIN unless alteration or change be in writing ond executed by a corporate officer of ORKIN EXTERMINATING COMPANY, INC., under this corporate seal.

8.The computation of the "annual percentage rate” on the reverse side hereof is mode sol el y to comply wi th the Consumer Credit Protection Act (P. L. 90-321) and the regulations of the Federal Reserve Board promulgated pursuant thereto and is not to be construed as or deemed an interest rate applied to or charged in this transaction under the lows of this state. *


source: Caselaw Access Project

author: SANDERS, Judge

license: Public Domain

text:
    Davis M. SWINEY and wife Helen Swiney, Plaintiffs-Appellees, v. MALONE FREIGHT LINES and Charles Wayne Wilson, Defendants-Appellants.
    Court of Appeals of Tennessee, Eastern Section.
    April 30, 1976.
    Certiorari Denied by Supreme Court July 26, 1976.

      Dennis H. Inman, Morristown, for Malone Freight Lines and Charles Wayne Wilson.
    Howard W. Rhea, Sneedville, for Davis M. Swiney and wife Helen Swiney.
    GODDARD, Judge.
   OPINION

This appeal presents two principal questions, the first of which, insofar as we have been able to determine, is one of first impression in this state: (1) Does the doctrine of res ipsa loquitur apply where a wheel becomes detached from a moving vehicle, and (2) if so, did the Defendants introduce sufficient proof to entitle them to a directed verdict at the conclusion of all the proof?

The facts are relatively simple and undisputed. Plaintiffs’ proof showed that on December 21, 1973, about 1:30 p. m., Davis M. Swiney, Plaintiff-Appéllee, was driving his 1967 Chevrolet automobile in a northerly direction on U.S. Highway 11-W in Grainger County just north of Bean Station. He was meeting a tractor-trailer which was leased to Malone Freight Lines and was being operated by Charles Wayne Wilson, Defendants-Appellants, who owned the vehicle in partnership with Marshall Adams. The tractor was equipped in the rear with dual tandem wheels. As the vehicles approached each other the tractor’s outside left-rear forward wheel became detached. Mr. Swiney was able to avoid a collision with this wheel, but shortly thereafter a second wheel also became detached and rolled down the highway striking Mr. Swiney’s vehicle in the center of the grill. The collision resulted in injuries to Mr. Swi-ney and damages to his automobile.

At the conclusion of the Plaintiffs’ proof the Trial Court, being of the opinion that the facts presented were sufficient to permit the claim to go to the jury under the doctrine of res ipsa loquitur, overruled Defendants’ motion for a directed verdict.

The Defendants thereupon introduced proof to show that the tractor-trailer in question was returning to its home terminal in Birmingham, Alabama, from a trip to Pittsburgh, Pennsylvania. It was loaded with carpeting which weighed approximately 40,000 pounds. The lug bolts, which held the dual wheels in place, had sheared, causing the wheels to become disengaged. The wheels in question had been inspected on three separate occasions within four days prior to the accident: (1) regular 30-day inspection by Malone Freight Lines four days prior to the accident, (2) inspection on the day of the accident by Defendant Wilson at Salem, Virginia, where he tested the wheels with a “tire billy,” (3) inspection on the day of the accident by Tennessee Public Service Commission representatives at the Tennessee-Virginia state line.

Defendant Wilson, who was an experienced truck driver, having driven trucks for seven years and this particular truck seven months, testified that the wheels were last removed some 30 days prior to the accident when new tires were installed. He also testified that he had had no difficulty with the wheels in the seven months that he had driven the truck, and that if the lug nuts became loose a driver could detect it because “when you go into a curve, when you come back to straighten back up with the road it will want to keep on sliding over with you, and it will just twist you can’t .” When asked by his attorney if one could tell when lug nuts are loose by looking at them, he testified as follows:

A. Yes, you can tell, if they have been loose just a day, you can . . . just any truck driver can look at them and just look at them and tell that they are loose because they’ll a rusty ring come out from under every one of them.
Q. All right, now, did you see any rusty rings around those lugs when you looked at them at Salem, Virginia?
A. No.

Fred Massengill, claims manager for Malone Freight Lines, testified as to the procedure used in connection with its regular 30-day inspection; however, Jackie Donaldson, the employee who made the inspection, was not called to testify.

Although as indicated, no Tennessee cases have dealt with the exact factual situation here presented, the Tennessee courts have applied the doctrine in other situations involving motor vehicles- — unattended vehicle rolling down incline, Buffington v. Whitson, 223 Tenn. 315, 444 S.W.2d 152 (1969); Roberts v. Ray, 45 Tenn.App. 280, 322 S.W.2d 435 (1958); vehicle being operated off travel portion of the road, Hudson v. Stepp, 54 Tenn.App. 640, 393 S.W.2d 301 (1965); Sullivan v. Crabtree, 36 Tenn.App. 469, 258 S.W.2d 782 (1953). In Hudson, supra, Judge Parrott of this Court restates the doctrine and its procedural effect (54 Tenn. App. at 643, 393 S.W.2d at 302):

Tennessee has long recognized that the doctrine of res ipsa loquitur is applicable to certain automobile accidents. It is said in the very able opinion in Sullivan v. Crabtree, 36 Tenn.App. 469, 258 S.W.2d 782, that where a motor vehicle, without apparent cause, runs off the road and causes harm, the normal inference is that the driver was negligent and res ipsa loquitur is usually held to apply. The opinion further defines the doctrine of res ipsa as follows:
“The classic statement of the doctrine of res ipsa loquitur is this: ‘[WJhere the thing [causing the harm] is shown to be under the management of defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.’ Erie, C. J., Scott v. London and St. Katherine Docks Co. (1865), 3 H. & C. 596, 159 Eng.Reprint 665, 667. ******
“The maxim res ipsa loquitur means that the facts of the occurrence evidence negligence; the circumstances unexplained justify an inference of negligence. In the principle of proof employed, a case of res ipsa loquitur does not differ from an ordinary case of circumstantial evidence. Res ipsa loquitur is not an arbitrary rule but rather ‘a common sense appraisal of the probative value of circumstantial evidence.’ Boykin v. Chase Bottling Works, 32 Tenn.App. 508, 520-523, 222 S.W.2d 889, 896.”
It also sets out the procedural effect of the doctrine on page 476 of 36 Tenn.App., on page 785 of 258 S.W.2d:
“It warrants an inference of negligence which the jury may draw or not, as their judgment dictates. (Citing authority.)
“It raises a presumption of negligence which requires the jury to find negligence if defendant does not produce evidence sufficient to rebut the presumption. (Citing authority.)
“It not only raises such a presumption but also shifts the ultimate burden of proof to defendant and requires him to prove by a preponderance of all the evidence that the injury was not caused by his negligence. (Citing authority.)”

We have also found in 46 A.L.R.2d, at 110, an annotation that is precisely in point. The cases cited thereunder and the later case service disclose that Arkansas, Connecticut, Louisiana, Mississippi, Missouri, New Jersey, New Mexico, New York, Ohio and Washington in similar factual situations have applied the doctrine. Only two jurisdictions, Massachusetts and the Sixth Circuit Court of Appeals, applying Michigan law, can be said to hold contra. In the Massachusetts case, Sennett v. Nonamtum Coal Co., 284 Mass. 390, 187 N.E. 758 (1933), as is pointed out in the annotation, the doctrine apparently was not raised, and in the federal case, General Motors Corporation v. Wolverine Ins. Co., 255 F.2d 8 (6 Cir., 1958), wherein the owner of the vehicle which lost the wheel was suing the manufacturer, the Court pointed out that there was no evidence to show that the wheel broke loose prior to the accident, and that “the physical and testimonial evidence indicated convincingly that the wheel was broken off as a result of the car’s rolling over.”

Defendants strongly insist, however, that two Tennessee cases are controlling and dispositive of the questions. The first, Smith v. Fisher, 11 Tenn.App. 273 (1929), involved a truck which, as a result of a mechanical breakdown, was being steered backward down an incline. This Court, in that case, rejected application of the doctrine and used the following language (at page 282):

. The mere fact that the universal joint broke and the brake-band “snapped” is not, of itself, evidence of a negligent failure to inspect the truck. Huddy on Automobiles (7 Ed.), sec. 419; 42 C.J., p. 897.
The rule of res ipsa loquitur does not apply to the facts of this ease. The undisputed proof tends to show that the truck in question was inspected for defendant, at reasonable intervals, by an automobile mechanic.
Moreover, the proof is that any inspection of the truck that could have been made (without tearing it down) would not have revealed a defect in the universal joint, and that there was no visible or discoverable defect in the brake-band.

In a later case, Sloan v. Nevil, 33 Tenn. App. 100, 229 S.W.2d 350 (1949), the host driver was sued by the widow of a deceased passenger. The accident occurred when the front end of the vehicle in which they were riding “dropped to the paving and the car turned over.” Although the Defendants cite this case as one involving a detached wheel, our understanding of the facts from the opinion suggests it more likely involved a broken axle. In any event, the accident occurred while they were on their way to a World Series game in St. Louis, and the Tennessee court was applying the Illinois guest statute which required proof of willful and wanton negligence to sustain a verdict in favor of a guest passenger. The Court, while recognizing the doctrine could not be used to show willful and wanton negligence, by way of dictum, said (33 Tenn.App. at 110, 229 S.W.2d at 354):

It is also insisted for the plaintiff that the doctrine of res ipsa loquitur applies and furnishes an inference of negligence on the part of the defendant.
The doctrine of res ipsa loquitur would not, if applicable to this case, create an inference of wilful and wanton negligence as contemplated by the Statute. In this case the plaintiff offered no proof of any negligence of the defendant and if the doctrine of res ipsa loquitur furnished an inference of negligence we think this inference disappeared when the defendant explained the cause of the accident as the falling down of the front of the car on the highway.

We are of the opinion that neither of these cases is dispositive of the case at bar. As to Smith, we cannot equate a tractor wheel, which is removed and replaced at regular and frequent intervals, becoming detached with the sudden breaking of a universal joint or a brake band. Additionally, there was proof that an inspection of the truck (unless it was “torn down”) would not have revealed a defect in the universal joint, and that there was no visible or discoverable defect in the brake band. In Sloan, the Court specifically found, undoubtedly upon proof adduced in the record, that the accident was caused by a latent defect that could not have been discovered by ordinary inspection.

We accordingly conclude that the doctrine of res ipsa loquitur — which, as the courts have often said, is “a common-sense appraisal of the probative value of circumstantial evidence” — is applicable to the case at bar and warranted the jury in finding in favor of the Plaintiffs, unless it can be said, as insisted by the Defendants, that their proof, which is undisputed, shows that the cause of the accident was not due to their negligence.

We note initially that, although some of the cases, as shown in Hudson, supra, use the term “inference” which permits the jury to accept or reject defendant’s negli-genee as it may choose and others “presumption” which, in the absence of contrary proof, requires acceptance, it is not necessary in this case for us to determine which is the proper terminology.

We are however required to determine the quantum of proof necessary to entitle the Defendants to a directed verdict where, under the Plaintiffs’ proof, the doctrine is applicable; or to put it another way, we are required to determine whether, under all the proof of the case, the doctrine remains applicable.

An older case relied upon by the Defendants disposes of the question in a cursory manner, stating that the doctrine never applies “where the defendant goes forward with proof explaining the cause of the accident.” Granert v. Bauer, 17 Tenn.App. 370, 67 S.W.2d 748 (1933).

A more recent case, Hudson, supra, explored the required quantum of proof more carefully and quoted with approval from Prosser on Torts, Second Edition. We adopt as the proper rule the language used in the Fourth Edition which is now available (at page 233):

If the defendant seeks a directed verdict in his favor, he must produce evidence which will destroy any reasonable inference of negligence, or so completely contradict it that reasonable men could no longer accept it. The evidence necessary to do this will vary with the strength of the inference. It takes more of an explanation to justify a falling elephant than a falling brick, more to account for a hundred defective bottles than for one. If the defendant proves definitely by uncon-tradicted evidence that the occurrence was caused by some outside agency over which he had no control, that it was of a kind which commonly occurs without negligence on the part of anyone, or that it could not have been avoided by the exercise of all reasonable care, the inference of negligence is no longer permissible, and the verdict is directed for the defendant. The res ipsa case has been overthrown by showing that it is not a res ipsa case.
But if the defendant merely offers evidence of his own acts and precautions amounting to reasonable care, it is seldom that a verdict can be directed in his favor. The inference from the circumstances remains in the case to contradict his evidence. If he testifies that he used proper care to insulate his wires, to inspect his chandelier, to drive his bus, or to keep defunct mice and wandering insect life out of his bottled beverage, the fact that electricity escaped from the wires, that the chandelier fell, that the bus went into the ditch and the bug was in the bottle, with the background of common experience that such things do not usually happen if proper care is used, may permit reasonable men to find that his witnesses are not to be believed, that the precautions described were not sufficient to conform to the standard required or were not faithfully carried out, and that the whole truth has not been told. It is of course not impossible that proof of proper care may be so overwhelming as to call for a directed verdict, but in the ordinary case it will not be sufficient to destroy the inference from res ipsa loquitur.

Applying this rule, can it be said that the evidence produced by the Defendants destroyed any reasonable inference of negligence, or so completely contradicted it that reasonable minds could no longer accept it? We think not. We readily concede the Defendants have explained the cause of the wheels becoming detached; but they have, in our view, failed to show that the cause was not due to their negligence. It may have been that there were internal structural defects in all of the lug bolts or in a sufficient number to cause them all to shear, and that these defects could not have been detected upon reasonable inspection. No proof however was adduced to this fact, and because the cases suggest the Defendants have the better opportunity to determine and explain the cause, the burden rests with them. Other possible explanations which have not been excluded are (1) the lug bolts became erystalized and subject to shearing because the vehicle had been operated on prior occasions when the lug nuts were not properly tightened, (2) the lug bolts developed fissures which were readily discernable but overlooked by the Defendants’ agents in changing tires and making inspections, (3) the lug bolts were weakened by overloading of the truck on prior occasions. We cannot be sure as to any of these possibilities, but we do know that either the Defendants failed to have an expert examine the lug bolts subsequent to the accident or chose not to present the results of such an examination. In view of the foregoing, we are of the opinion that under all the proof the case was properly submitted to the jury under the doctrine of res ipsa loquitur.

In concluding, we would point out at least one case in which the facts are practically identical to the one at bar. In Covey v. Western Tank Lines, 36 Wash.2d 381, 218 P.2d 322 (1950), lug bolts were sheared causing the wheels to become detached. The Supreme Court of Washington, in disposing of defendant’s insistence that sufficient explanation was made of the occurrence to entitle it to a judgment notwithstanding the verdict, said (at page 327):

. Appellant’s explanation of the accident was that the ten studs or bolts holding the wheel had sheared off due to crystallization which could not have been discovered although adequate inspection was made. It is not disputed that the studs or bolts sheared off. But the evidence was in conflict, and left a distinct uncertainty, as to why this happened, and appellant’s responsibility therefor. The testimony left a doubt as to whether the shearing off of these studs was due to loose lugs, wear on the studs, crystallization of the studs, or a combination of all three.

The Defendants raise one additional assignment of error. They contend that the proof does not justify an award of $1000 to Mrs. Swiney for loss of her husband’s service and consortium because, according to their principal contention, she did not testify nor participate in the trial. In view of the proof as to the injuries and disabilities of her husband, we find this assignment of error to be without merit.

For all of the foregoing reasons, the assignments of error are overruled and the Trial Court affirmed. The costs are taxed to the Defendants and their sureties.

PARROTT, P. J. (E. S.), concurs.

SANDERS, J., dissents.

SANDERS, Judge

(dissenting).

I must respectfully dissent from the holding in the majority opinion that the doctrine of res ipsa loquitur is controlling in this case.

Had the Defendants not gone forward with their proof and shown why the wheel came off and injured the Plaintiff, then the doctrine would have been applicable and there would have been an inference of negligence upon which a jury verdict could have been predicated.

At the conclusion of the Defendants’ proof there could be absolutely no question in the mind of any reasonable man but that the accident occurred as a result of the lug bolts’ shearing off of the wheel. This removed the inference applicable under the doctrine of res ipsa which arose from the unexplained reason for the wheel’s coming off.

At this point the Plaintiff is charged with the burden of showing Defendants were guilty of some act or omission which constituted negligence proximately causing his injury. For instance, did the Defendants know, or in the exercise of ordinary care should they have known, the lug bolts on this wheel were defective to the extent they might shear off and cause injuries to a third party?

The fallacy of the rationale in the majority opinion seems to lie in the fact that it places two inferences of negligence upon the Defendants. The effect of the holding is not only that the inference of negligence existed until there was an explanation of why the wheel came off but, after it was shown that it came off because the lug bolts sheared, there then arose a second inference that the Defendants knew, or should have known, they were defective.

In the case of DeGlopper v. Nashville Railway & Light Co., 123 Tenn. 633, 646, 134 S.W. 609, 612, the court said:

“If the act which caused the injury was shown by direct evidence, and all of the circumstances, of the accident were shown in the proof, and if the only reasonable explanation of the accident should give rise to an inference of negligence, then the rule of ‘res ipsa loquitur’ would apply; but there can be no foundation for the application of this maxim where both the act which caused the injury and the negligence of defendant in relation to the act must be inferred from the accident itself. You cannot well say that an act is negligent, unless you know what it is.” (Emphasis ours.)

I cannot agree with the majority that the case of Hudson v. Stepp, 54 Tenn.App. 640, 393 S.W.2d 301 is controlling over the case of Granert v. Bauer, 17 Tenn.App. 370, 67 S.W.2d 748. In the Hudson case the driver testified she did not know why the car left the road. In other words, there was no explanation of what caused the accident. Had it been shown in that case that the automobile left the road because a wheel came off or because the steering mechanism failed, the doctrine of res ipsa would not have been applicable.

I cannot agree that it was dictum when the court said in the case of Sloan v. Nevil, 33 Tenn.App. 100, 110, 229 S.W.2d 350, 355:

“In this case the plaintiff offered no proof of any negligence of the defendant and if the doctrine of res ipsa loquitur furnished an inference of negligence we think this inference disappeared when the defendant explained the cause of the accident as the falling down of the front of the car on the highway.” (Emphasis ours.)

I think what the court said is a proper enunciation of the rule in this jurisdiction and we are cited to no authority in this state to the contrary.

The majority refers to the annotation of 46 A.L.R.2d, 110, as being in point with the case at bar. In that same treatise, at page 111, it says:

“The doctrine does not rest upon established facts. It does not apply where there is direct evidence as to the precise cause of the injury and all of the facts and circumstances attending upon the occurrence appear.”

I also cannot agree with the majority that the case of Smith v. Fisher, 11 Tenn. App. 273 is not controlling in the case at bar. I can see no distinguishing difference in a brake band’s “snapping” and lug bolts’ shearing off, nor can I see any rational reason for applying the doctrine of res ipsa in the case at bar and rejecting it in the Smith case. The reason for distinguishing the cases seems to lie in the fact that the universal joint was concealed in the Smith case. It is common knowledge, however, that the base of lug bolts, where these were sheared off, is also concealed until the wheel is removed. The proof shows the wheels involved had been removed about 30 days prior to the accident. The majority opinion has the tenor of assuming the lug bolts may have been defective at that time and a negligent inspection failed to reveal it.

I am of the further opinion that the principles enunciated by Chief Justice Green in the case of Memphis Street Ry. Co. v. Stockton, 143 Tenn. 201, 226 S.W. 187, are applicable to the case at bar. This case involved a suit by a student motorman for personal injuries resulting from a defective brake on the streetcar. In addressing himself to the doctrine of res ipsa loquitur, Justice Green said:

“To state it differently, the application of this rule in its primary or distinctive sense rests on common experience, and ‘not at all on the circumstances of the particular case tending of their own force to show that the very accident in question was in fact the result of negligence.’ Note L.R.A.1917E, 9.
“In the first case an artificial presumption of law is employed. The second case is really one of circumstantial evidence, although the inference justified by res ipsa loquitur is thrown in along with other facts proven to make out plaintiff’s case.
“As stated before, no facts are proven in this record which tend to show that the street railway company had knowledge of any defect in the brake, nor is any fact proven which tends to show that the street railway company should have in the exercise of ordinary care acquired such knowledge.
“If res ipsa loquitur is to be employed at this angle of the case, it must be in its primary or distinctive sense.
“The question then is: May it be inferred from common experience that the bare failure of this brake to work indicated a defect which was of such a character and had existed for such a length of time as that the master knew or in the exercise of reasonable care should have known of its existence?
“How can we say that the master knew of this defect or ought to have known of it when the character of the defect itself is utterly unknown?
“An air brake is a somewhat complicated apparatus. There may be obvious defects in such machinery and there may be hidden defects therein.
“The master is not usually liable for latent defects. Morris Bros. v. Bowers, 105 Tenn. 59, 58 S.W. 328; Labatt on Master & Servant, vol. 3, p. 2716. Nor is the master liable for defects arising so short a time prior to the accident as not to have been discovered by him in the course of his reasonable inspections. Box Co. v. Gregory, 119 Tenn. 537, 105 S.W. 350; Griffin & Son v. Parker, 129 Tenn. 446, 164 S.W. 1142, L.R.A., 1917F, 497.
“Since we have no intimation of the nature of the defect in this brake, we think it would be a violent assumption for us to say that it was discoverable on reasonable inspection, or that it had existed for such a length of time as that the master should have known of it. The latter notion is really negatived by the proof in the case showing that the car stopped after it left the barn on the morning of the accident to take on a passenger, at which time the brake was almost certainly used, and must have been in working order.
“It may be that rare cases will arise in which res ipsa loquitur can be invoked by way of raising an inference of negligent ignorance against a master in favor of his servant. We are clear, however, that under the circumstances of this case such an inference would not be permissible. We do not think it would be a safe inference in the light of common knowledge or experience.”

In my view, the majority opinion is doing what Justice Green says you cannot do in the first above-quoted paragraph.

Also, let us apply Justice Green’s own words to the case at bar except to substitute defendants for the master and lug bolts for the brake:

“As stated before, no facts are proven in this record which tend to show that the [defendants] had knowledge of any defect in the [lug bolts ], nor is any fact proven which tends to show that the [defendants ] should have in the exercise of ordinary care acquired such knowledge.”

“. . . . The question then is: May it be inferred from common experience that the bare failure of [these lug bolts] indicated a defect which was of such a character and had existed for such a length of time as that the [defendants] knew or in the exercise of reasonable care should have known of its existence?”

“How can we say that the [defendants] knew of this defect or ought to have known of it when the character of the defect itself is utterly unknown?”

Finally, I cannot agree that the rule quoted from Prosser on Torts has any application to the case at bar. Should this quotation be approved in the context of this case, in my view, we would be establishing an extremely dangerous precedent. We would, in effect, be saying, “Any time a third party is injured as the result of a mechanical failure of a motor vehicle, the jury may infer negligence on the part of the owner or operator unless he can show due care by overwhelming proof.”

Since the proof shows affirmatively that the accident resulted from the lug bolts’ shearing off and the record is devoid of evidence that the Defendants knew or, through the exercise of ordinary care, should have known they were defective, it was, in my view, error for the Trial Court not to direct a verdict in favor of the Defendants.


author: SHRIVER, Presiding Judge.

text:
    Victor Parker WILLIAMS and Hazel B. Williams, Plaintiffs-Appellants, v. Robert L. DANIEL and Willie L. Daniel et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    June 25, 1976.
    Certiorari Denied by Supreme Court Aug. 30, 1976.

      Keaton & Turner, Hohenwald, for plaintiffs-appellants.
    Edwin C. Townsend and Robert N. Townsend, Parsons, for defendants-appellees.
   OPINION

SHRIVER, Presiding Judge.

The Case

This is a boundary line dispute concerning the location of the east boundary line of the property of plaintiffs-appellants and the west boundary line of the property of defendants-appellees.

The parties will be referred to as plaintiffs and defendants, as they appeared in the Court below, or as appellants and appel-lees.

The plaintiffs filed their original bill in the Chancery Court of Perry County on January 3,1970 wherein they charge that in the year 1968 defendants, Robert L. Daniel and wife, built a woven wire fence west of the defendants’ west boundary line, thereby enclosing and claiming land which rightfully belongs to the plaintiffs, asserting that said fence was built along the true boundary line between the lands of the parties, which fact plaintiffs deny.

The bill prays that the location of the common boundary line between the lands of the parties be fixed and declared by decree of the Court, and for an injunction restraining defendants from interfering with plaintiffs while they are engaged in surveying the line of the parties.

The answer of defendants, Robert L. Daniel and wife, denies that the location of the fence built by them encloses or encroaches on any land belonging to the plaintiffs. Defendants plead adverse possession and the Statute of Limitations, stating:
“. . . These defendants further aver and plead that any cause of action, if any there be, accrued more than seven years before said bill was filed, and more than ten years before said bill was filed, and more than twenty years before said bill was filed, and these defendants rely on the statutes of limitations of seven, ten and twenty years in bar thereof.”

Defendants further aver that they and their predecessors in title have actually cultivated such land adapted for cultivation up to said line and have exercised actual possession thereof for more than seven years, ten years, and for more than twenty years prior to plaintiffs bringing this action.

Assuming the character of cross-plaintiffs, the defendants pray for a dissolution of the injunction and that the Court appoint an independent surveyor to locate the line between the parties, and that the west boundary as described in their deed from Y. A. Bandy, et ux, recorded in the Register’s Office of Perry County, Tennessee, be declared by decree of the Court to be the true and correct boundary between the parties.

By consent decree, the Farmers Home Administration was dismissed as a defendant and the United States of America substituted as a defendant.

The answer of the United States asserts that Daniel and wife conveyed their land to a Trustee to secure the payment of certain indebtedness owed the Farmers Home Administration but takes no position with respect to the dispute between plaintiffs and defendants.

The case was tried July 23,1971 on depositions and documentary evidence before Chancellor John H. Henderson (now retired), whose term of office expired August 31, 1974. However, the Chancellor took the cause under advisement and on August 29, 1975 filed his Memorandum Opinion deciding the issues in this cause. Judgment, in accordance with the Opinion, was entered October 27, 1975 establishing that the true boundary between the parties is that which is shown by the present fence as constructed by the defendant, Robert L. Daniel.

From the decree of the Chancellor implementing his Memorandum Opinion, plaintiffs duly perfected their appeal to this Court and have assigned errors.

Assignments of Error

There are two assignments, the first of which is to the effect that the Opinion of the Chancellor and the judgment entered thereon on October 27, 1975 are void.

Assignment No. 2 is that the Court erred in declaring the true boundary between the parties is that shown by the present fence as constructed by the defendant, Robert L. Daniel, since the evidence preponderates against the findings of the Court as to the location of the common boundary line.

Addressing ourselves to Assignment No. 1, it is asserted by plaintiff that the term of office of Chancellor Henderson expired August 31, 1974 and that his power and authority as to cases pending before him on the date he vacated his office were extended for only a period of sixty days, or until October 30th, 1974, under the statute, T.C.A., Section 17 — 116.

It is further asserted that, by letter dated October 17, 1974, Chief Justice William H. D. Fones assigned Judge Henderson to conclude this case along with four other cases which he had under advisement and a copy of said letter is attached to counsel’s brief.

At this point it is pertinent to observe that counsel for both parties assert that there is no question raised as to the fact that Chancellor Henderson was designated by Chief Justice Fones to complete this case along with several others and, while a letter of designation does not appear to have been duly filed for record in the Court, yet its contents are supplied and vouched for by counsel for both parties, a copy of said letter being as follows:

"The Honorable John H. Henderson
Revere Lane
Franklin, Tennessee 37064
Re: Williams v. Daniel (Perry Chancery Court) Richardson v. McLemore (Perry Chancery Court)
Reeves v. Talley (Lewis Chancery Court)
Cardell v. Rochkes (Lewis County Chancery) White v. Lynn Creek Association (Williamson County Chancery)
Dear Judge Henderson:
It is my understanding that the above cases were previously heard by you prior to your retirement on September 1, and that decisions have not as yet been rendered. In view of this fact, and to prevent any complications arising, I am hereby assigning you, under the appropriate statutory authority, to conclude these matters at your earliest convenience.
I appreciate your willingness to perform this service.
With best wishes, I am,
Sincerely,
/s/ Wm. H. D. Fones, C. J.
cc: Judge T. Mack Blackburn"

It is asserted by counsel that the obvious question presented is whether the Chief Justice, under his authority to assign Judges or otherwise, had the authority to extend the sixty days provided for by Section 17-116, T.C.A., which provides that whenever any Trial Judge shall vacate his office for any cause other than death or permanent insanity, he shall have and retain, as to cases pending before him, the trial of which was begun prior to his vacation of office, all the powers in connection with said cases which he might have exercised had such vacation of office not occurred, provided that his powers in this respect shall not extend beyond sixty days from said date of such vacation of office.

While it would seem that orderly procedure would dictate that the letter of designation by the Chief Justice should be entered on the Minutes of the Trial Court or on the Minutes of the Supreme Court, we have no guidelines in respect to this matter and will simply presume, in the absence of any showing to the contrary, that the designation was in regular order and that Chancellor Henderson properly acted under those orders.

Counsel assert in their briefs that the only decision that they were able to find construing Section 17 — 116 is Bedford County Hospital v. County of Bedford, 42 Tenn. App. 569, 304 S.W.2d 697 (1957) where the Court said:

“If T.C.A. § 17-116 does apply, and we hold it does not; still, the sixty days’ limitation would be merely directory. It seems this is the only construction which could be reasonably placed upon the statute. A Chancellor might hear a case with fifty volumes of the record. It might take more than sixty days to prepare the opinion. Surely the statute should not be construed so as to require the case to be put on the trial docket just like it had never been tried and have the case heard again from the beginning. Judge Smartt properly took jurisdiction of the case and properly held it.”

It is asserted that the foregoing statement of this Court, through the late Judge Hickerson, was dictum, nevertheless, it states principles which seem to be sound.

It is interesting to note that in Trapp v. McCormick, et ux, 175 Tenn. 1, 130 S.W.2d 122 (1939), in an opinion by the late Mr. Justice Chambliss, our Supreme Court states that counsel raised the procedural question that the Chancellor heard the case at his regular term in December and took the cause under advisement and did not dispose of it until the following February 11th, at which time his order was made instructing the Clerk and Master to enter his decree on the Chamber Minutes of the Court. It is thus insisted that the decree was void since it was not entered within a thirty day period as fixed by the statute, Code Section 10-501, which authorizes Chancellors to hold under advisement cases tried in any term and enter decrees therein subsequently. The Opinion continues:

“It is true that this statute does contain a limitation of the time to thirty days within which such a decree may be entered, without the consent of counsel, and appellees reply that this statute should be treated as directory only. We do not find this statute to have been construed by this Court in any reported opinion. It may well be doubted, in the first place, that it is within the power of the Legislature to thus control the action of the Court, it being in the nature of an encroachment upon the judicial prerogatives. In the second place, the general rule undoubtedly is that those statutory provisions which relate to the mode, or time of doing the act to which the statute applies, are not held to be mandatory, but directory only.”

The opinion then cites Huffines v. Gold, 154 Tenn. 583, 288 S.W. 353 (1926), and Richardson v. Young, 122 Tenn. 471, 125 S.W. 664 (1909), and concludes by saying that the statutory provisions which may thus be departed from with impunity, without affecting the validity of statutory proceedings, are usually those which relate to the mode or time of doing that which is essential to effect the aim and purpose of the Legislature or some incident of the essential act, and states:

“We are of the opinion that, consistently with these rules, the provisions of the statute before us may properly be held to be directory only.”

In line with the foregoing, we overrule Assignment No. 1.

Assignment No. 2 is as follows:
“The Court erred in decreeing that the true boundary between the parties is hereby declared to be that shown by the present fence as constructed by the defendant, Robert L. Daniel.
The evidence preponderates against the findings of the Trial Court as to the location of the common boundary line.”

Counsel for the appellees, in his Reply Brief and Argument, gives a history of the lands in question here and the transactions involving same which are pertinent to this inquiry and which we find to be accurate and which may be summarized as follows:

The defendants-appellees acquired title to their tract of land by a deed from Vet A. Bandy, brother of the plaintiff Hazel B. Williams, on November 22, 1965, wherein the tract of land was described by metes and bounds and was further described as comprising 190 acres, more or less.

Bandy and plaintiff Hazel B. Williams acquired title to said lands from Elmer L. Spencer on February 8th, 1947. Hazel B. Williams conveyed her one-half interest in said land to Vet A. Bandy by deed dated July 30, 1950. Elmer L. Spencer had acquired title to said tract on October 14,1942 from the heirs of J. W. Bandy.

It is seen by the record that all of the foregoing deeds describe the beginning point of defendants’ deeds and the boundary line in dispute as:

“Beginning on a hickory in a cross-fence near the public road and runs thence South 33 degrees West, with cross-fence 93 poles to a hickory on the back side of the field on the hill side.”

It appears from the record that this beginning point and the division line described therein dates back to a Division Deed between the Bandy brothers, J. W. Bandy and W. J. Bandy, dated and recorded on September 17, 1896. It further appears that the cross-fence was set up as a boundary line between them, with W. J. Bandy taking the land lying east of the division line, which is the tract now owned by Daniel, while J. W. Bandy took the lands lying west of the cross-fence beginning at a hickory, which is the tract now owned by Williams. And, it appears that the Bandy Division Deed divided a 334 acre tract, in addition to three other tracts.

When the lands were sold to the defendants Daniel by Vet A. Bandy in 1965, surveyor Clyde Miller was employed to make a survey of the land and, apparently, the deed from Bandy to Daniel was based on the Miller survey.

While there is a discrepancy in the number of acres contained in the tract in question as opposed to the number of acres referred to in the deed, nevertheless, it appears that when the acreage in the tract in dispute which amounts to about 100 acres is subtracted from two hundred and eighty-five which is the number of acres recited in the deed from Bandy to Daniel, the remainder is one hundred and eighty-five acres which compares with the one hundred and ninety acres referred to in the deeds which is a circumstance to be considered as to the accuracy of the survey which fixed the division line as insisted upon by defendants-ap-pellees.

An examination of the deeds in question and the testimony of witnesses at the trial indicates that the deeds in the chain of title to both tracts at issue were conveyances in gross and not by the acre. It also appears that other considerations may have entered into the decision of the parties to run the boundary line where they did, that is, such considerations as the fertility of the soil involved, its location with respect to roads, springs or sources of water, and its availability for cultivation. Moreover, the general rule with respect to the question of acreage as opposed to the calls in a deed is to the effect that it is resolved primarily as a question of intention to be gathered from the deed and that where a deed contains an adequate particular description of the property conveyed, it will not be controlled by a recital therein of the quantity or number of acres unless it clearly appears that it was the intention to convey only a definite quantity, and it is said by some authorities that quantity is the least certain of all of the elements of description which are usually found in a deed.

As was held by this Court in Evins v. Price, 63 Tenn.App. 627, 477 S.W.2d 204 (1971), where a sale of the property was in gross and not by the acre, purchasers had the opportunity to examine the land and there was no showing of fraud, a mutual mistake as to the number of acres contained in the tract conveyed did not warrant reformation of the deed and partial refund of the purchase price or a rescission.

The case at bar is before us for trial de novo on the record since it was heard by the Chancellor without the intervention of a jury and a consideration of the evidence introduced in this cause leads us to the conclusion that the evidence does not preponderate against the decision and conclusions of the Chancellor.

An impressive number of witnesses testified in this case but the large number of witnesses testifying as to the location of the boundary lines between these parties as having been established for many years is very impressive.

We do not deem it necessary to review the testimony of the several witnesses who testified as to the location of the boundary line.

Particularly impressive is the testimony of Elmer L. Spencer, a witness for the appellees who was 68 years old at the time of the trial and a previous owner of the lands now owned by the defendants Daniel. He stated that he had the land surveyed in 1942 when it was purchased from the Bandy heirs and referred to the hickory tree now destroyed as located on the side of the road and that the cross-fence was in place and the lines marked and painted. He further testified that the dividing line between the tracts now owned by plaintiffs Williams and the defendants Daniel had been established all of his life and that he has been familiar with them since the survey was completed in 1942. He also referred to the rock at the northwest corner of the Daniel tract and stated that there had never been any question as to the location of the boundary line between Daniel and Williams and that it was as shown on the Garrett survey.

Finally, another compelling reason for affirming the Chancellor is that the answer and cross-bill of defendants-appel-lees asserts that they and their predecessors in title have actually cultivated such lands adapted for cultivation up to the said line and have exercised actual possession thereof for more than seven years, ten years, and for more than twenty years prior to plaintiffs bringing said action and they pled the foregoing Statutes of Limitation.

In Webb v. Harris, 44 Tenn.App. 492, 315 S.W.2d 274 (1958), the seven year statute was pled and applied in a boundary line dispute even though title was not deraigned from a state grant or a common source of title.

And in Pyron v. Colbert, 46 Tenn.App. 287, 328 S.W.2d 825 (1959), the seven year statute was applied and upheld.

And in Lee v. Harris, 188 Tenn. 373, 219 S.W.2d 892 (1948), the ten year statute was held to be applicable in an action for reformation of a deed on the ground of mistake.

We see no escape from the force and effect of the Statute of Limitations as pled by the defendants in this cause.

For all of the foregoing reasons, it results that both assignments are overruled and the judgment of the Chancellor is affirmed.

AFFIRMED.

TODD and DROWOTA, JJ., concur.


author: GREENHILL, Chief Justice. DENTON, Justice

text:
    Jimmy D. HARRIS, Petitioner, v. Milton T. POTTS et al., Respondents.
    No. B-5651.
    Supreme Court of Texas.
    Dec. 8, 1976.
    Dougal C. Pope, Houston, for petitioner.
    McClain & Harrell, W. C. McClain, Con-roe, Ross Hightower, Livingston, for respondents.
   GREENHILL, Chief Justice.

Jimmy D. Harris, plaintiff below, sought title to an interest in a tract of land under an oral contract of sale which he had made with the owners in 1962. After he presented his evidence, the trial court instructed the jury to enter a verdict for the defendants and entered judgment that Harris take nothing. The court of civil appeals affirmed the judgment on the ground that Harris’ suit was barred by the Statute of Frauds, Texas Business and Commerce Code, Section 26.01. 528 S.W.2d 321. We affirm.

Because Harris’ claim rests on an oral contract for the sale of realty, this case falls squarely under the Statute of Frauds; and his claim is unenforceable under the Statute unless he can show that the facts of this case lie within the exception announced in Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114 (1921). That case allows the purchaser of realty to enforce the oral contract of sale if he shows that he made “payment of the consideration,” that he took possession of the land, and that he made valuable improvements on the property. Further, “Each of these three elements is indispensable, and they must all exist.” Hooks, supra, 229 S.W. at 1116.

The court of civil appeals held that Harris had not introduced any evidence that he took possession of the land, and therefore affirmed the trial court judgment. We agree that evidence of possession or occupancy was wholly lacking at the trial; and, since possession of land is one of the three essential elements under Hooks, this suit is barred by the Statute of Frauds.

The land in question was unoccupied and uncultivated. Since it was near Lake Livingston, it was contemplated that it might be developed as a subdivision and divided into some 250 lots. There is evidence that back around 1962, the tract in question was improved by the grading of some streets and the installation of some culverts for drainage. This work was evidently done by an independent contractor. There is no evidence that Harris supervised these activities, and he testified that he had no part in employing the contractor. Harris and the record owners signed a note which was executed to finance these improvements, and he paid his proportionate share of the principal and interest. None of the lots was sold.

The evidence introduced by Harris shows that he never erected any type of structure on the land, neither a dwelling place, an office, nor even a tent. As he stated at the trial, “The only thing that would come close to having an office or anything was a picnic table we put there for writing up contracts instead of having to do it in the car.” Neither he nor anyone connected with him ever spent even one night on the land. The only times that Harris entered the property were when he conducted cleaning operations on a few weekends, and when he subsequently, with the consent of one of the defendants, showed the property to prospective buyers. Harris’ activities in cleaning the land consisted of clearing three of the 250 lots on the tract of brush and trees, whitewashing some trees, putting up street signs, and replacing survey stakes that had been knocked over by other peoples’ cows or children. Harris never attempted to cultivate the land, to fence it, or to run livestock on it. In the six or seven years before trial, he never set foot on the property other than, in his words, “driving through occasionally.”

We hold that these facts are no evidence that Harris took possession or occupancy of the property as is required under Hooks v. Bridgewater, supra. They may be evidence that Harris constructed valuable improvements; but there is a distinction between making improvements on land, in person or by agents, and the occupancy or possession of land. The Hooks rule requires actual possession or occupancy.

Since there is no evidence that Harris occupied or took possession of the land under the oral contract of sale, the Statute of Frauds bars his claim; and the trial court’s instructed verdict in favor of the defendants was proper. The judgment of the court of civil appeals is affirmed.

Dissenting opinion by DENTON, J., in which McGEE and SAM D. JOHNSON, JJ., join.

DANIEL, J., not sitting.

DENTON, Justice

(dissenting).

I respectfully dissent.

I agree the law is settled that to relieve a parol sale of land from the operation of the statute of frauds, three things are necessary: “1. Payment of the consideration, whether it be in money or services. 2. Possession by the vendee. And 3. The making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor; or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced.” Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921). I disagree with the application of the law in this case by the majority.

Except for disputed evidence concerning the amount of the consideration to be paid, the facts relating to an agreement by Potts and Ellzey each to convey an 11.1 percent interest to Harris are not materially disputed. Harris testified that the full purchase price for each 11.1 percent interest was $500 and that he paid this amount to both Potts and Ellzey. The canceled checks representing these payments are in evidence. Potts admitted the $500 payment had been made, but testified an additional $625 was due but had not been paid. The evidence concerning the conduct of Harris in making permanent improvements and taking possession is not disputed. Whether or not Harris’ actions are sufficient to satisfy the permanent improvement and possession requirements of Hooks v. Bridgewater, supra, is the question to be decided.

The tract of land involved here was located near Lake Livingston and had been subdivided and platted as “Lake Livingston Subdivision.” It contained 250 lots. The tract was vacant, raw land just prior to the time the oral contract was entered into. Streets and culverts were in the process of being put in when Harris entered into the transaction. Thereafter, streets were graded and culverts were placed at the subdivision entrance and low places for drainage. Potts, Lee Ellzey, J. S. Holleman, the other owner, and Harris, borrowed $3,000 for the purpose of grading the streets and placing culverts on the premises. It is undisputed that Harris signed the original note and subsequent renewals, and that he paid a total of $1257.51 which represented his proportionate share of the principal and interest. Harris cleared three of the lots by cutting the trees and brush. He set up a table on the cleared area for the purpose of writing contracts for the sale of lots. He whitewashed the remaining trees in the cleared area. He and J. S. Holleman procured and erected 14 or 15 permanent street signs on the property. Harris went on the property on numerous occasions principally on weekends to show the lots and offer them for sale, although no lots were sold. Mr. Potts testified he knew of Harris’ work on the property and of his efforts to sell the lots in the subdivision. Sale of the lots was discontinued when the Trinity River Authority filed suit against the City of Houston to enjoin further development in the Lake Livingston area.

Possession by a vendee should be considered in light of the transaction alleged. Immediately upon the completion of the alleged sale, Harris went upon the land and performed the various acts set out. The payment of his share of the street grading and culverts; erecting the permanent street signs; the cleaning of the lots; whitewashing trees; being on the tract and offering the lots for sale to prospective purchasers, are acts which constitute possession of the land. These acts show that Harris exercised the right of control of the property with the power to use or enjoy the property. Powell v. Wiley, 141 Tex. 74, 77, 170 S.W.2d 470, 472 (1943). It was incumbent upon Harris to show he exercised the control of an owner of an undivided 22.2 percent interest in raw, subdivided land. I am of the opinion that he did so. Johnson v. Perkins, 140 S.W.2d 282 (Tex.Civ.App.— Beaumont 1940, writ dism’d jdgmt. cor.). See also Comment, Character of Possession Necessary to Satisfy the Rules of Hooks v. Bridgewater, 22 Baylor L.Rev. 361 (1970) and Comment, The Doctrine of Part Performance in Texas, 1 Tex.Tech.L.Rev. 325, 330 (1970). I am convinced the evidence presented here was sufficient to raise the issues of possession and valuable permanent improvements on the land in reliance upon the oral agreement between Harris and Potts and Ellzey. Jones v. Mawman, 145 Tex. 596, 200 S.W.2d 819 (1947). Therefore, I believe, the trial court erred in instructing a verdict for the defendants.

I would reverse the judgment of the court of civil appeals and remand the cause for a new trial.

McGEE and SAM D. JOHNSON, JJ., join in this dissent.

      . Vernon’s Texas Codes Annotated, Business & Commerce, § 26.01.

      . We do not have before us an action to recover the consideration paid, or one for the recovery of other sums used to improve the property. The Hooks opinion stated in part, “The value of the consideration may ... be recovered.” 229 S.W. at 1117.