text:
    EAST SEVIER COUNTY UTILITY DISTRICT OF SEVIER COUNTY, Tennessee, Petitioner-Plaintiff, v. WACHOVIA BANK & TRUST COMPANY et al., Defendants-Respondents.
    Supreme Court of Tennessee.
    July 24, 1978.

      Harold E. Rogers, Jr., San Francisco, Cal., Jerome Templeton, Knoxville, for petitioner-plaintiff.
    John B. Waters, Jr., Sevierville, James K. Giffen, Knoxville, Victor F. Schneider, James H. Boswell, Jackson, J. William Myers, Newport, Ralph Lowe, Atlanta, Ga., Frank B. Bird, Maryville, Fred L. Myers, Newport, for defendants-respondents.
   OPINION

HARBISON, Justice.

This action was brought up by a Utility District against some 1600 defendants who owned lots or held mortgages in a real estate subdivision known as English Mountain Resort Community. The original plaintiff, petitioner here, sought judgments for accrued water and sewerage charges and a declaratory judgment with respect to the priority of its asserted liens over liens of deeds of trust on the lots.

Most of the individual lot owners were never served with process and were dismissed. Over 120 individual defendants either paid the charges sued for or held waivers from the developer. All of them were dismissed voluntarily. From a judgment of tne trial court with which it was partially dissatisfied, the petitioner appealed as to two individual lot owners and certain financial institutions. The latter either held deeds of trust on various parts of the resort community or had foreclosed thereon.

Petitioner asserted a number of of theories in the trial court, claiming a right to recover under ordinances which it had adopted, under a claim of unjust enrichment, as assignee of a number of restrictive covenants placed on the subdivision by the developer and on the basis of individual contracts.

Both the trial court and the Court of Appeals dismissed the suit on the unjust enrichment claim, and we find material evidence in the record to support that factual conclusion. Accordingly it is foreclosed here. T.C.A. § 27-113. The Court of Appeals modified the decision of the trial court with respect to the authority of the Utility District to enforce its ordinances, and this Court denied certiorari as to that aspect of the case.

. There remain for consideration the other two theories of petitioner.

Over the years between 1968 and 1973 the developer of English Mountain recorded six different sets of restrictive covenants. Some of these were minor amendments, but two of them were comprehensive revisions. In his decision, the trial judge noted discrepancies among these sets of restrictions, and held that some of them could not run with the land because of language contained therein. In the course of his opinion, the trial judge stated:

“However, if the title deed or the agreement between the grantor-grantee provides for payment of the so-called tap-on charges, specifying these, then this issue is settled and enforceable. Persons are free to contract as they so choose.
“The monthly availability charges for water and sewer may be properly assessed to all lot owners acquiring their property subsequently to the recordation of the covenant so providing, but such stand-by charges are not assessable to those owners who acquired their lots pri- or to the imposition of these fees. I think that point is so clear that further discussion and debate should be unnecessary.”

The trial judge made no specific findings as to priority between liens claimed by petitioner under the restrictive covenants and the liens of unforeelosed deeds of trust held by the defending financial institutions. He dismissed with prejudice all claims of the petitioner for accrued charges against the mortgagees, except as to lots where deeds of trust had been foreclosed and improved lots bid in by the debt holders. He held that petitioner was entitled to judgment against those mortgagees from and after such foreclosures. The lenders did not appeal that aspect of the case.

Pursuant to certain of petitioner’s assignments of error, the Court of Appeals examined the various restrictive covenants which had been recorded from time to time by the developer. It concluded that these were so conflicting and reserved in the developer such broad rights to vary or waive restrictions as to negative “the idea of a general plan or scheme for a uniform development” of the subdivision. It accordingly held that all of the restrictive covenants relative to water and sewerage fees were unenforceable.

This Court granted certiorari to consider petitioner’s assignments against one lot owner and four of the lending institutions.

We are in agreement with the courts below that petitioner had not shown itself entitled to money judgment against these financial institutions at the time of trial, nor do we understand that petitioner now contends that it was so entitled. Likewise, petitioner apparently now concedes that none of the restrictive covenants could be given retroactive effect, absent an express contract so providing, although its contentions in the trial court in that regard were unclear and seem to have been to the contrary.

Apparently due to the very complex nature of the litigation and the many different theories being asserted by the petitioner against different categories of defendants, the matter of the priority of any liens which it might have over unforeclosed deeds of trust on particular lots was not considered by the circuit judge.

Of course, whether or not a trial judge entertains an action for declaratory judgment is largely discretionary with him. In view of the very voluminous testimony which was offered at this hearing, much of it in the form of masses of records, we are of the opinion that the trial judge had discretion not to undertake a detailed delineation of priorities between liens asserted by the petitioner and those arising under the various deeds of trust. On the other hand, we are not satisfied that he should have dismissed the suit with prejudice, so that petitioner could never, in a proper hearing or under an order of reference, attempt to assert priority of its claimed liens under the 1972 and 1973 restrictions over those arising under the various deeds of trust. We agree with petitioner that upon denial of its prayer for a declaratory judgment, the suit should have been dismissed without prejudice, rather than with prejudice, as to that aspect of this multifaceted case.

We do not agree with the disposition made by the Court of Appeals of petitioner’s claims under the restrictive covenants. Contrary to its conclusion, it appears to us from the trial record that the developer did intend a general plan or scheme for a uniform development of this subdivision. The present record reveals no reason why the restrictive covenants should not be applied according to their terms against the buyers of lots who personally agreed to them or whose purchases occurred after the recordation of any particular set of covenants. We have already stated that no set of covenants should be given any general retroactive effect. To the extent that there may be conflicts or discrepancies in the covenants applicable to a given lot, this may be a matter for resolution in individual suits. In our opinion, however, the Court of Appeals was in error, on the record as now developed, in striking down all of the restrictive covenants. To that extent its decision is reversed.

We modify the judgment of the trial court so as to dismiss without prejudice, insofar as priority of liens may be concerned, the claims of petitioner against the four financial institutions as to which cer-tiorari was granted. These institutions are Westinghouse Credit Corporation, Newport National Bank of Newport, FDS Financial, Inc., and Wachovia Bank & Trust Company. We note that the latter institution, in its answer filed in the trial court, asserted priority of its deeds of trust over any lien claimed by the petitioner which was not mature, due and collectible on the date when Wachovia’s deeds of trust were recorded. The answer states, however:

“The defendant admits that the lien of the Utility District is superior to any Wachovia lien as to Deeds of Trust recorded after December 5, 1973.”

Whether the liens of those deeds of trust, or the deeds of trust of any of the other financial institutions, are or are not prior to those claimed by the Utility District was not determined by the trial court, nor do we attempt to determine it here. The priority of the lien of any given deed of trust would, of course, depend upon whether and when a valid lien of the Utility District had attached to the lot covered by such deed of trust—a factual issue in each case, to be determined either by trial or by order of reference.

On the record before us, petitioner continues to assert a lien and a claim for judgment against one individual lot owner, James E. Byndon. His deed was recorded in October, 1973, after the March, 1972 covenants had been placed of record, but prior to the December, 1973 restrictions. Petitioner had the burden of proof to establish its lien against this lot or a contract with this respondent by competent and specific evidence. Factual issues were raised in the answer filed by Mr. Byndon, denying any personal covenant or agreement. These were never met by competent proof at the trial. Both the trial court and the Court of Appeals dismissed the petitioner’s claim against that respondent, and because of the insufficiency of evidence to establish petitioner’s claims against him, we affirm the dismissal as to him.

This leaves the case before us with no individual lot owners as respondents. With the record in that posture, we think it inappropriate to attempt any further interpretation of the restrictive covenants, either as to their scope, legality or binding effect. To do so might prejudice the rights or the defenses of numerous property owners not before us or in any way represented in the record. For the same reason, we are unable to pass upon any rights petitioner may have against any property owner by reason of individual or special contracts. Numerous issues are raised in a brief filed amicus curiae on behalf of an association of property owners, but our discussion of those issues on the present record would be improper, since they were not dealt with in the trial court or properly developed in the proof.

The judgments of the courts below are modified to the extent hereinabove indicated. Insofar as petitioner sought a declaratory judgment against the four financial institutions who are respondents here, its suit will be dismissed without prejudice, instead of with prejudice as ordered by the trial court.

The cause is remanded to the trial court for any further proceedings necessary under its final judgment as modified in the appellate courts. All costs on appeal are taxed to the petitioner; costs in the trial court will remain as adjudged there.

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

      . This was stipulated by some, but by no means all, of the parties in the trial court.


source: Caselaw Access Project

author: BROCK, Justice.

license: Public Domain

text:
    CORTRIM MANUFACTURING CO., Appellant, v. Mrs. Charles W. SMITH, Appellee.
    Supreme Court of Tennessee.
    July 31, 1978.

      Edwin L. Treadway, Steven C. Rose, Kingsport, for appellant.
    Fred M. Leonard, George W. McRee, Bristol, for appellee.
   OPINION

BROCK, Justice.

In this action the plaintiff seeks to recover death benefits provided by the Workmen’s Compensation Act for the death of her husband who was an employee of the defendant. The trial court found the issues in favor of the plaintiff and awarded benefits. The defendant has appealed asserting that the Chancellor erred in failing to sustain defendant’s objection to a hypothetical question posed by the plaintiff to Dr. Ronald D. Caldwell, a heart specialist who testified on behalf of the plaintiff, and in finding that there was any causal connection between the death of the plaintiff’s husband and his employment.

The defendant produces various wood products for the furniture and other industries and in so doing employed an assembly line consisting of six large wood-working machines. Each of these wood-working machines consisted of various components such as “motor heads,” “knives,” etc. Once the production of a particular wood product was finished, the machines could be “taken down” and “rebuilt” so that a different wood product could be fabricated. The changing of the components of these machines was referred to as “set up work,” and the plaintiff’s husband was one of the three employees of the defendant who performed this work. In addition to set up work the plaintiff’s husband also performed “adjustments” on the machines after they were set up and while they were employed in production of wood products. The testimony indicates that the set up work was quite strenuous whereas the adjusting work, although it involved considerable stooping and bending and sometimes making adjustments close to the floor while the adjuster was on his knees, was not quite so strenuous.

For about two years prior to his death, the plaintiff’s husband suffered from arte-riosclerotic heart disease manifested as an-ginal pain and shortness of breath and for which he was treated by Dr. Ronald D. Caldwell, an internal medicine specialist, since August, 1975. On Monday, November 29,1976, the plaintiff’s husband appeared to be as well as he had been for months when he took his wife to work and reported for work himself at about 7:30 a. m. From 7:30 a. m. until approximately 9:50 a. m. the plaintiff performed his duties which consisted of “adjusting” one of the wood-working machines above mentioned. At about 10:00 a. m. he told Clarence Jackson, a fellow worker, that he was ill and was going to lie down on a couch or go home. He reported to the first aid department and his condition worsened so that about 12:00 noon he was taken in a truck from the defendant’s factory to a nearby hospital where he was admitted to the intensive care unit and died shortly thereafter. Dr. Caldwell stated that the cause of death was cardiogenic shock resulting from acute myocardial infarction.

Dr. Caldwell testified that the heart attack occurred while the deceased was at his work. The hypothetical question to which the defendant objected was:

“Q. Doctor, assuming that on the morning of November 29, the patient was involved in setting up a piece of machinery — large piece of machinery — to cut wood for the yard, which involved a tremendous amount of bending and stooping and stretching and reaching down as low as a foot from the floor to turn cranks to set up this machinery, could such exertion at that moment have contributed to cause this clot to .
“A. It’s . . . it’s possible .
“Q. . . . break away .
“A. Now let me .
(At this point the defendant objected on the ground that the question as propounded did not contain a full and true hypothesis, did not show the condition of the decedent when he came to work that morning and that there was no evidence showing that the decedent exerted himself in the way and manner set forth in the question.)
“The Court: The objection is overruled. Proceed. (Exception by defendant’s counsel.)
“Q. Can you remember . . . ?
“A. A degree of exertion like that conceivably, then, could have precipitated . . . yes, it could. Nobody really . . . nobody hardly could really know what it is . they are not infrequent, certainly at night. However, .
* * * * * *
“A. Some . . . some effort doing . . . done . . . somebody that’s undergoing some effort at the time one hits, you kind of, at least, sort of tend to naturally assume that it may have had something to do with precipitating it. There is really no way you can tell for sure.”

In our opinion, the trial court did not err in overruling the objection to the hypothetical question. Of course, it is not proper for a hypothetical question to assume facts that are not supported by evidence at the trial. Moon v. Johnston, 47 Tenn.App. 208, 337 S.W.2d 464 (1960). Our examination of the record indicates that the adjusting of the wood-working machines, work which the decedent was performing on the morning in question, did consist of bending, stooping, stretching and reaching down as low as a foot from the floor to turn cranks. The words “tremendous amount” may have been an exaggeration to some extent but, in our view, does not necessarily render the question objectionable. Counsel must be given some leeway in his choice of words in framing such questions and the matter is primarily one for the exercise of discretion by the trial judge. Moreover, the defendant had the opportunity to restate the hypothetical question on cross examination or frame other questions of his own to point out any deficiencies in the question posed by the plaintiff. In this case defense counsel made no attempt to do so.

We have concluded also that the evidence is sufficient to support the finding of the Chancellor that the fatal heart attack suffered by the plaintiff’s husband was, at least in part, caused or precipitated by the physical activity and exertion of his work on the morning of his death. As Mr. Justice Cooper stated recently in P & L Construction Co., Inc. v. Lankford, Tenn., 559 S.W.2d 793 (1978):

“In a workmen’s compensation case, a trial judge may properly predicate an award on medical testimony to the effect that a given incident ‘could be’ the cause of the plaintiff’s injury, when he also has before him lay testimony from which it may reasonably be inferred that the incident was in fact the cause of the injury. (Citations omitted.)” 559 S.W.2d at 794.

And the death of an employee who dies in the course of his employment by reason of a heart attack, although suffering from a previous heart disease, is covered under the Workmen’s Compensation Act even if the result was produced only by ordinary exertion and usual strain of the work. Lawrence County Highway Department v. Hardiman, Tenn., 531 S.W.2d 792 (1975); Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540 (1959). We hold that the testimony of Dr. Caldwell, above quoted, as well as the testimony of the lay witnesses who described the nature of the work performed by the decedent on the morning of his fatal attack, is sufficient to support the finding of the Chancellor that the fatal attack was precipitated by the physical activity and exertion of the decedent on the morning of his death.

We conclude, therefore, that the decree of the Chancellor must be affirmed. Costs incurred on appeal are taxed against the appellant.

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


author: COOPER, Justice.

text:
    Frances Henson OVERMAN, Petitioner, v. Ralph T. OVERMAN, Sr., and Teachers Insurance and Annuity Association of America and its companion, College Retirement Equities Fund, Respondents.
    Supreme Court of Tennessee.
    Aug. 14, 1978.
    Frances Henson Overman, pro se.
    Foster D. Arnett, F. Michael Fitzpatrick, Arnett, Draper & Hagood, Knoxville, for respondents.
   OPINION

COOPER, Justice.

The dispositive question in this case is whether the petitioner, Frances Overman, may garnish certain rights possessed by Ralph T. Overman in two annuity agreements. The chancellor and the Court of Appeals both held that she could not. We affirm.

Mrs. Overman has reduced to judgment a claim against her former husband, Ralph T. Overman, for unpaid alimony. In an attempt to satisfy that judgment, the petitioner caused writs of garnishment to issue against the respondents, Teachers Insurance and Annuity Association of America and College Retirement Equities Fund, each of which had issued an annuity policy to Mr. Overman. In so far as is material to this case, the policies provide for a maturity date, September 1, 1984, which can be advanced at Mr. Overman’s option, and a death benefit payable to designated beneficiaries should Mr. Overman die before the maturity date. At present, the primary beneficiary for the purposes of this latter provision on each policy is Mr. Overman’s second wife. On motion of the respondents, the chancellor quashed the writ of garnishment. On appeal, the Court of Appeals affirmed, holding that, under the provisions of T.C.A. § 56-1110, the policies were exempt from the petitioner’s claims.

We agree with the results reached by the Court of Appeals, not only because we concur with their finding that T.C.A. § 56-1110 exempts the annuity contracts at issue from garnishment, but also because we find that the respondents possess no property of Mr. Overman subject to garnishment.

Addressing the latter issue first, we note that the statute that sets forth the nature of the property and claims that are subject to garnishment, T.C.A. § 26-505, provides as follows:

All property, debts, and effects of the defendant in the possession of the garnishee, or under his control, shall be liable to satisfy the plaintiff’s judgment, from the service of the notice, or from the time they came to his hands, if acquired subsequent to the service of notice, and before judgment. The words “property, debts, and effects,” include real estate and dios-es in action, whether due or not, and judgments before a justice of the peace; also money or stocks in an incorporated company.

When the statute is applied to the circumstances presented in the instant case, it is apparent that the writs of garnishment must be directed either at rights possessed by Mr. Overman or at obligations owed him by the respondents, arising from the annuity contracts and ostensibly in the possession of the respondents.

Mr. Overman does possess a number of rights under the contracts, as, for instance, the rights to change their maturity dates or to change the designated beneficiaries under the death benefit provisions. However, these rights, while they may be property, are not “property ... in the possession of the garnishee[s].” T.C.A. § 26-505 (emphasis supplied). If anything, they are property in the possession of Mr. Overman. As a result, they may not be reached by writs of garnishment directed at the respondents. See United States v. Home Life Insurance Co., 355 F.2d 86 (2d Cir. 1966); United States v. Mitchell, 349 F.2d 94 (5th Cir. 1965); United States v. Sullivan, 333 F.2d 100 (3rd Cir. 1964) (concerning similar procedures for the seizure of property in satisfaction of a delinquent tax obligation. Cf. Annot., 37 A.L.R.2d 268, § 5 (concerning attempts to reach the cash surrender value of life insurance policies owned by a debtor).

In addition, the respondents have an existing obligation to Mr. Overman under the contracts—specifically, the obligation to make payments to him according to the terms of the annuities should he live until their dates of maturity. However, this obligation, whether it is characterized as a debt or as a chose in action, is not subject to garnishment because it is contingent on a future event—Mr. Overman’s survival until the dates of maturity. If he should die before the contracts mature, the respondents will never be indebted to Mr. Over-man in any amount. While obligations that are certain, although not presently due, are subject to garnishment, obligations that are contingent, in that they may never become due, are not. 6 Am.Jur.2d Attachment & Garnishment, § 126. See, e. g., Gray v. Houck, 167 Tenn. 233, 68 S.W.2d 117 (1934); United States Fidelity & Guaranty Co. v. Wrenn, 89 F.2d 838, 67 App.D.C. 94 (1936); Margrave v. Craig, 92 Nev. 760, 558 P.2d 623 (1976).

There being no property of Mr. Overman subject to garnishment in the respondents’ hands, the writs were properly quashed.

Furthermore, as we noted above, even if the rights and obligations stemming from these contracts were of such a nature as to be subject to garnishment at the time this garnishment was served they would be exempt under the provisions of T.C.A. § 56-1110, which provides as follows:

The net amount payable under any policy of life insurance or under any annuity contract upon the life of any person made for the benefit of, or assigned to, the wife and/or children, or dependent relatives of such persons, shall be exempt from all claims of the creditors of such person arising out of or based upon any obligation created after January 1,1932, whether or not the right to change the named beneficiary is reserved by or permitted to such person.

Mr. Overman’s present wife is the primary beneficiary under the death benefit provision of each contract. As a result of that contingent interest, the contracts are for her benefit, and thus fall within the exemption of the statute. Cf. Fox v. Swartz, 235 Minn. 337, 51 N.W.2d 80 (1952). The petitioner argues that she should not be considered a “creditor” within the meaning of the statute, since the judgment stems from a claim for past-due alimony. Several jurisdictions, when interpreting similar exemption statutes, have adopted the position advanced by the petitioner. See Annot., 54 A.L.R.2d 1422. However, such a holding, in our opinion would violate the evident intent of the legislature in creating the exemption expressed in T.C.A. § 56-1110 — that is, to deliver intact to the present wife the proceeds of an insurance policy or an annuity upon the life of a debtor, where the policy or annuity was made for the benefit of the wife of the debtor. No limitation is placed on the exemption where the claimant is a former wife, and the debt is for past-due alimony. Where, as here, the intent of the legislature appears clear upon consideration of the natural and ordinary meaning of the statutory language, it is not the office of this court either to extend or limit that language’s import, regardless of how we may perceive the equities of the cause. Worrall v. Kroger Co., 545 S.W.2d 736 (Tenn. 1977); Jackson v. Jackson, 186 Tenn. 337, 210 S.W.2d 332 (1948).

Decree affirmed and costs are adjudged against petitioner Frances Henson Over-man.

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


author: HARBISON, Justice.

text:
    CITY OF MURFREESBORO et al., Appellants-Defendants, v. Robert Eugene FORTNER, Appellee-Plaintiff.
    Supreme Court of Tennessee.
    Aug. 21, 1978.
    Thomas L. Reed, Jr., Murfreesboro, for appellants-defendants.

      R. Steven Waldron, Murfreesboro, for ap-pellee-plaintiff.
   OPINION

HARBISON, Justice.

Except for a procedural question, the disposition of this case is controlled by the opinion of the Court in the cases of City of Murfreesboro v. Pilkington and City of Murfreesboro v. Davis, Tenn., 569 S.W.2d 805, decided today. Finding that the procedural question in the present case does not warrant a different disposition, we affirm the decision of the Chancellor.

Appellee applied to the City Council of Murfreesboro, acting as a Beer Board, for a permit authorizing on-premises consumption of beer in connection with the operation of a pizza parlor. The application was denied on the ground that appellee’s proposed site was within 2000 feet of a church and a school. It was stipulated that appel-lee was personally qualified for the permit sought, and that his site complied with all other city ordinances except the distance requirement. For the reasons stated in the Pilkington and Davis cases, supra, we concur in the finding of the Chancellor that there has been discriminatory enforcement of the ordinances imposing a fixed distance requirement to the point that they may no longer be used as a basis for denying an application which otherwise complies with city ordinances.

Appellee submitted his application for an on-premises permit on May 4,1976. It was denied by the City Recorder on May 7 for the reasons stated above. Appellee appealed to the City Council, and on May 13,1976, personally appeared before it. He was advised that a decision would be rendered within two weeks.

Apparently learning that a revision of the ordinances was in process, however, he filed suit on May 20,1976, in the Chancery Court, seeking a declaratory judgment and a restraining order against amendment of the ordinances. The Chancellor denied the restraining order but permitted the suit to remain as one for declaratory judgment.

Because suit was pending, the City Council refused to act on appellee’s application. It filed a motion to dismiss in the chancery suit, alleging that appellee had failed to exhaust his administrative remedies. This motion was overruled on August 26, 1976.

Appellee’s case was then consolidated for trial with the cases of Pilkington and Davis. On March 25, 1977, the Chancellor filed a memorandum opinion, invalidating both the original and the amended ordinances imposing a fixed-distance rule. Recognizing that Mr. Fortner’s application had never been acted upon by the City Council, however, the Chancellor remanded his case to the Council for disposition, directing that the result be reported to the court.

The Council refused to rule upon the application, although requested by appellee to do so. Thereupon appellee filed a petition with the Chancellor, in which he averred that he had sought and had been denied a decision upon his application by the Council. He sought appropriate relief from the court. The petition contained a prayer that it be treated as a petition for certiorari as provided in beer cases under T.C.A. § 57-209. The Chancellor apparently so treated it, and in the final decree ordered issuance of appellee’s permit along with those in the consolidated eases.

While the procedure followed by appellee, particularly prior to the trial of the case, was irregular, we are unable to sustain the assignments of error of appellants predicated upon a failure of appellee to exhaust his administrative remedies. The application of Mr. Fortner had been pending with the Council for nearly ten months before the Chancellor entered an order expressly directing that body to dispose of it. Upon its explicit refusal to do so, a petition for cer-tiorari and other relief was filed on July 18, 1977. This remained undisposed of until October 26, 1977, but in the interim the Council had continued to withhold action on appellee’s application. By the time the Chancellor finally ordered the permit to issue, the application had been pending for over seventeen months.

It was stipulated at the trial that no reason existed for the denial of the permit except the distance requirement, which was invalidated by the Chancellor’s opinion filed on March 25, 1977. The conduct of the Council from and after that date, in our opinion, was tantamount to a denial of the application without good cause. A petition for certiorari was timely filed after the Council refused to dispose of the application as ordered by the Chancellor. Under those circumstances, we are of the opinion that the .Chancellor was entitled to treat appel-lee’s petition as equivalent to one filed under T.C.A. § 57-209 for review of the denial of a permit. Accordingly we find without merit the contentions of appellants that ap-pellee had failed to exhaust his administrative remedies.

The judgment of the Chancellor is affirmed at the cost of appellants.

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


text:
    Thomas Ray SHELTON and wife, Hallie W. Shelton, Appellants, v. RUSSELL PIPE AND FOUNDRY COMPANY, Alphonso Graham, Belfast Rock Company, James Kelley and G. E. Childress, Appellees.
    Supreme Court of Tennessee.
    Sept. 11, 1978.
    Walter W. Bussart, Bussart & Adams, Lewisburg, for appellants.
    William E. Herod, Manier, White, Herod, Hollabaugh & Smith, Nashville, Fred B. Hunt, Jr., Wilson & Hunt, Shelbyville, for appellees.
   OPINION

BROCK, Justice.

This is an action for damages arising out of an automobile accident. The plaintiffs are the parents of a three year old girl who they allege was severely injured in an automobile accident resulting from the negligence of the defendants. The plaintiff father seeks to recover damages for his own psychic or emotional injury and his wife sues for the loss of her right of consortium.

The complaint alleges that the daughter of the plaintiffs was “thrown through the front glass of the automobile, receiving many serious and disfiguring facial lacerations, requiring extensive plastic surgery, physicians’ expenses, pain and suffering and related expenses. Her injuries are of a serious and permanent nature.” The gist of the father’s complaint, however, is as follows:

“Shortly after hearing of the injuries to his daughter, plaintiff, Thomas Ray Shelton, passed out or fainted at the emergency room of the Lewisburg Community Hospital. He was admitted to the hospital and revived. Since then, he has suffered severe and traumatic emotional distress as the result of the accident and the injuries to his daughter. He attempted to return to his work, but because of nervousness, dizziness, and inability to concentrate or tolerate noise or activity, he is unable to work. He has on at least two occasions fainted at work and was rushed to the emergency room of the hospital. He is unable to tend to his tobacco and other crops on his family farm which in the past produced a significant part of his family income. He is at the time of the filing of this complaint totally disabled because of his psychological injury, and avers that the negligence of the defendants heretofore described and the injury suffered by his daughter are the direct, proximate and procuring cause of his condition and the damages resulting therefrom.
“Plaintiff, Thomas Ray Shelton, avers that the psychic and emotional injuries and difficulties experienced by him were a direct, proximate and foreseeable consequence of the negligence of the defendants, and each of them, and that there was no intervening cause. He avers that he had never experienced any similar difficulties before the date of this accident but was in perfect health.”

Mrs. Shelton’s claim is as follows:

“Plaintiff, Hallie W. Shelton, avers that because of the negligence heretofore described and the injuries suffered by her husband she has been deprived of the services, enjoyment, company and consortium of her husband and has suffered damages as a result thereof.”

Upon motion of the defendants, the trial court dismissed the complaint for failure to state a cause of action upon which relief might be granted. Plaintiffs appealed directly to this Court.

Thus, the question presented upon this appeal is whether the law of this State recognizes a cause of action for damages by one who suffers psychic or emotional injury and resulting physical disability by reason of his learning of, but not visually witnessing, injuries to a close relative which are caused by the negligence of the defendant.

The issue in this case is indistinguishable from the one presented and decided in Burroughs v. Jordan, 224 Tenn. 418, 456 S.W.2d 652 (1970). Accordingly, unless we are to depart from it, the decision in the Burroughs case must control the disposition of the instant case. In Burroughs the plaintiff alleged that her husband and daughter sustained serious personal injuries when an automobile driven by the defendant collided with a truck driven by her husband who was accompanied by her daughter. The plaintiff alleged that the injuries sustained by her husband and daughter were the result of negligence of the defendant. Her complaint disclosed that she was not present when the accident occurred. Nevertheless, she alleged that she was entitled to recover damages because of “her subsequent illness which she alleged resulted from the fright and shock she sustained after she learned of the injuries to her husband and child.” Burroughs v. Jordan, supra, 456 S.W.2d at 653. The defendants demurred to the plaintiff’s complaint on the ground that it stated no cause of action cognizable under Tennessee law. The trial court sustained the demurrer and the plaintiff appealed to this Court which affirmed upon the authority of Nuckles v. Tennessee Electric Power Company, 155 Tenn. 611, 299 S.W. 775 (1927). In its brief opinion, the Court stated:

“In Nuckles v. Tennessee Electric Power Company (citation omitted) the facts were that a mother saw her son injured by a street car and sued for physical injuries which she alleged were caused by the fright and shock which resulted from her having seen the accident. The court said:
‘We are not aware of any considered decision which holds that there can be a recovery for fright or shock because of danger to another, or injuries upon another in the presence of the plaintiff, even though the person imperiled or injured was near and dear to the plaintiff.
‘In other words, to justify a recovery in tort there must be a wrong done to the person or property of the plaintiff. (Citations omitted.) When the defendant endangered and injured the son of the plaintiff it committed no trespass upon the person of the plaintiff, and the plaintiff had no standing to maintain an action for personal injuries.
“This rule governs the plaintiff’s claim for personal injuries which must be denied.” 456 S.W.2d at 653, 654.

It appears to be the rationale of the Burroughs and Nuckles decisions that although the defendant was negligent in causing personal injuries to another who “was near and dear to the plaintiff” he owed no “duty” to the plaintiff whose psychic or emotional injury was the result of concern for the welfare of the “near and dear” one who was physically injured. Thus, this Court in the Nuckles case distinguished its earlier decision in Memphis Street Railway Company v. Bernstein, 137 Tenn. 637, 194 S.W. 902 (1917) upon the ground that in the Bernstein case the plaintiff, who was allowed to recover for psychic injury brought about by the negligence of the defendant, “was directly threatened and imperiled by the defendant . . . ” whereas, the plaintiff in the Nuckles case was not physically imperiled or endangered by the action of the defendant but sustained injury only through her concern for the welfare of her child who received serious injury in the accident which the plaintiff witnessed from a safe distance.

Also pertinent here is the decision of the Court of Appeals in Trent v. Barrows, 55 Tenn.App. 182, 397 S.W.2d 409 (1965). In that case the defendant negligently operated an automobile so that it violently struck the house of the plaintiff near the front window where the plaintiff was standing. Plaintiff saw the car approaching and retreated from the window but suffered no physical impact other than possible “vibrations of the house.” The opinion states that “plaintiff was somewhat shaken but her body was not bruised or injured in any way.” The plaintiff sued the defendant alleging that “as a proximate result of this grave shock and the imminent peril created by the outrageous conduct of the defendant plaintiff immediately suffered extreme weakness and sharp pains in her chest which grew steadily worse until on September 21, 1963, plaintiff was hospitalized with the diagnosis of heart attack.” It was further alleged that plaintiff had incurred large medical expenses and had suffered intense physical pain and disability. The Court of Appeals held that the plaintiff had stated a cause of action consistent with the holding of this Court in the Bernstein case, supra, and ordered a trial on the merits. In the course of its opinion, the Court said:

“The question was next considered in Nuckles v. Tennessee Electric Power Company, (citation omitted) involving fright but no physical injury to the plaintiff who witnesse[s] an injury to her child. The court affirmed the action of the trial court in sustaining a demurrer on the ground that although the declaration charged that fright resulted in physical injuries there was no breach of legal duty owing the mother, even though the injured person happened to be her child. The opinion indicates no recession from the Bernstein opinion which was cited for the rule that damages may be awarded for physical injuries] resulting from fright growing out of [the] breach of duty to the plaintiff.” 397 S.W.2d at 411.

It thus appears that the case law of this State permits recovery by a plaintiff for “physical” pain, suffering and disability resulting from fright or psychic shock caused by fear for his or her own safety which is brought about by the negligence of the defendant, sometimes referred to as the “zone of danger rule,” Memphis Street Railway Company v. Bernstein, supra, Trent v. Barrows, supra; but that a plaintiff may not recover for “physical” pain, suffering and injuries resulting from fright, shock or psychic injury caused by his or her concern for the welfare of a third person who is threatened or injured by the negligence of the defendant, Nuckles v. Tennessee Electric Power Company, supra, Burroughs v. Jordan, supra.

But, what is the reason for this distinction? It is not enough to say that the defendant owes a “duty” to the first plaintiff and does not owe a “duty” to the second.

“The assumption that there is no duty begs the question. The essential issue is whether the plaintiff’s interests are to be afforded protection against the defendant’s conduct, and ‘duty’ is nothing more than a word, and a very indefinite one, with which we state our conclusion.”

The courts and legal scholars have considered several factors in determining that a duty exists in the one situation but not in the other. Foremost among these are (1) the foreseeability, or the lack thereof, by a reasonably prudent person that his or her conduct may endanger the particular plaintiff, (2) the foreseeability, or the lack thereof, that serious psychic or emotional injury may result from the particular negligent conduct of the defendant, (3) the fear that vexatious suits and fraudulent claims will result if a duty is recognized, (4) the difficulty of defining liability, of drawing the line, if recovery is to be permitted to a plaintiff who is not physically within the reasonably foreseeable zone of danger created by the defendant’s conduct and who claims injury due only to his or her concern for the welfare of another, and (5) the notion that it would be unjust to expand liability for a merely negligent, as distinguished from an intentional, act to include psychic injury to a plaintiff who was not within the zone of danger of physical impact. See, e. g., Hunsley v. Giard, 87 Wash.2d 424, 553 P.2d 1096 (1976); Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970); Guilmette v. Alexander, 128 Vt. 116, 259 A.2d 12 (1969); Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969); Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968); Amaya v. Home Ice, Fuel and Supply Co., 59 Cal.2d 295, 29 Cal.Rptr. 33, 379 P.2d 513 (1963); Waube v. Warrington, 216 Wis. 603, 258 N.W. 497, 98 A.L.R. 394 (1935); W. Prosser, Handbook of the Law of Torts, § 54 at 334 (4th ed. 1971).

The only reason assigned by this Court for denial that a duty flowed from the defendant to the plaintiff in the Nuckles case, supra, was the alleged lack of authority therefor and, in the Burroughs case, supra, the Court merely followed the Nuckles precedent. Now, however, such authority does exist.

The decisional law in this area is presently undergoing substantial change; liability is being expanded. See, e. g., Dillon v. Legg, supra; Rodrigues v. State, supra; Hunsley v. Giard, supra; Restatement (Second) of Torts § 436 (1965); Leibson, Recovery of Damages for Emotional Distress Caused by Physical Injury to Another, 15 J.Fam.L. 163 (1976); Note, Fear For Another: Psychological Theory and the Right to Recover, 1969 Ariz.St.LJ. 420; Comment, Negligent Infliction of Mental Distress: Reaction to Dillon v. Legg in California and Other States, 25 Hastings L.J. 1248 (1974); Annot.: Right to Recover Damages in Negligence for Fear of Injury to Another, or Shock or Mental Anguish at Witnessing Such Injury, 29 A.L.R.3d 1337 (1970).

In the Dillon case, supra, the Supreme Court of California overruled its Amaya decision which had denied liability for emotional injury suffered by a mother who witnessed an accident in which the defendant ran over her son with a truck. The “rule” denying recovery for emotional and psychic injury to a plaintiff unless he was within the zone of danger was overruled in the Dillon case and the court adopted the policy of considering such cases on an ad hoc basis, applying “general rules of tort law, including the concepts of negligence, proximate cause, and foreseeability, . . .” 69 Cal.Rptr. at 84, 441 P.2d at 924. Applying such general rules, the court concluded that a mother who had witnessed an automobile accident in which her infant daughter was run over and killed had a cause of action against the negligent driver for emotional injury suffered by the mother.

The California courts have had considerable difficulty applying the Dillon doctrine. See Parsons v. Superior Court for Monterey County, 81 Cal.Rptr. 506, 146 Cal.Rptr. 495 (1978); Capelouto v. Kaiser Foundation Hospitals, 7 Cal.3d 889, 103 Cal.Rptr. 856, 500 P.2d 880 (1972); Deboe v. Horne, 16 Cal.App.3d 221, 94 Cal.Rptr. 77 (1971); Wynne v. Orcutt Union School District, 17 Cal.App.3d 1108, 95 Cal.Rptr. 458 (1971); Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (1969). Nevertheless, Dillon is considered to be something of a landmark case and has been followed by the Washington and Hawaii courts in Hunsley v. Giard, supra, and Rodrigues v. State, supra, respectively. On the other hand, Dillon has been rejected by the New York court in Tobin v. Grossman, supra, in which recovery was denied to a mother who sustained mental distress occasioned by an automobile accident which seriously injured her two-year-old son. The facts differed from those in Dillon in that the plaintiff mother did not witness the accident but was inside a neighbor’s house at the time it occurred. She ran outside when she heard the screech of brakes, only to discover her seriously injured son lying on the ground. In refusing to adopt the Dillon doctrine the New York court stated:

“The problem of unlimited liability is suggested by the unforeseeable consequence of extending recovery for harm to others than those directly involved in the accident. If foreseeability be the sole test, then once liability is extended the logic of the principle would not and could not remain confined. It would extend to older children, fathers, grandparents, relatives, or others in loco parentis, and even to sensitive caretakers, or even any other affected bystanders.” 301 N.Y.S.2d at 559, 249 N.E.2d at 423.

Accordingly, the New York Court of Appeals decided to retain the zone of danger rule.

Likewise, the Vermont court in Guilmette v. Alexander, supra, held that no recovery would be allowed to plaintiffs located out of the zone of danger. The facts presented were similar to those in Dillon in that the plaintiff was suing for physical injuries caused by the mental distress suffered by her as a result of witnessing her young daughter being struck by an automobile as she left a school bus in front of her house. The plaintiff had come to the front porch to greet her daughter.

The Vermont Supreme Court viewed the question as one of legal duty owing to the plaintiff and concluded that no legal duty existed for the protection of one outside the zone of danger. One located in the zone of danger suffers a breach of duty to him in the sense that his own personal safety is threatened; but one located out of the zone of danger has no threat to his safety and, without a violation of some other legally protected right, should not be allowed to recover for physical injuries caused by the negligently inflicted mental distress.

In Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970) the Supreme Court of Pennsylvania rejected the Dillon doctrine and, although it overruled its previously followed rule requiring physical impact before recovery for psychic or emotional injury could be allowed, it adopted the zone of danger rule. See also Arcia v. Altagracia Corporation, 264 So.2d 865 (Fla.App.1972).

Moreover, prior to Dillon all of the state jurisdictions in this country were unanimous in denying liability to a plaintiff who was not in the zone of danger of impact.

It is not necessary that we undertake in this opinion an exhaustive review of the authorities in this field in order to decide the case at bar. Even those jurisdictions which have adopted the most liberal policy, viz., California, Hawaii and Washington, would not permit a recovery to the plaintiff in this case who did not visually or audibly witness the accident in which his child was injured but merely learned of its occurrence through reports by third parties a considerable time after it had occurred. See, e. g., Parsons v. Superior Court for Monterey County, supra; Deboe v. Horne, supra. It may be that this Court should modify the rule stated in the Nuckies case, supra, so as to permit a recovery by a close relative who visually or audibly witnesses an accident in which one “near and dear to him” is threatened with or receives serious personal injuries if such close relative sustains physical pain, suffering and injury due to the shock of witnessing such an occurrence. But, that determination must await a case in which such a claim is presented.

We are satisfied, however, that the rule of liability should not be expanded, if indeed expansion is to occur, far enough to allow recovery upon the facts of the instant case. Our reason for reaching this conclusion is not the lack of authority but (1) the lack of foreseeability by the defendant that his conduct in operating his automobile posed any risk of harm to one situated as was the plaintiff in this case, who was not located within the zone of danger of physical impact and did not visually or audibly witness the infliction of injuries to one “near and dear to him,” and (2) our conclusion that it would be unjust to impose upon a defendant, who is guilty only of negligence rather than intentional wrongdoing, liability for psychic injury to a plaintiff who was not within the zone of danger of physical impact and who did not actually witness the infliction of injuries to one who was “near and dear to him.” We, therefore, adhere to the holding, although not to the reasoning, of Burroughs v. Jordan, supra, and conclude that plaintiffs have failed to state a cause of action.

Accordingly, the judgment of the trial court is affirmed and costs incurred upon this appeal are assessed against the plaintiffs.

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

      . Prosser on Torts § 31 at 184-85 (1941).

      . See Moorhead v. J. C. Penney Co., Inc., Tenn., 555 S.W.2d 713 (1977); Johnson v. Woman’s Hospital, Tenn.App., 527 S.W.2d 133 (1975).


author: PARROTT, Presiding Judge (E. S.).

text:
    Allen C. CHASTAIN and wife, Jeannie Chastain et al., Appellees, v. Douglas BILLINGS and wife, Martha Billings, Appellants.
    Court of Appeals of Tennessee, Eastern Section.
    June 30, 1978.
    Certiorari Denied by Supreme Court Sept. 18, 1978.

      Robert B. Wilson, III of Fillauer & Wilson, Cleveland, for appellants.
    Roger E. Jenne of Elliott, Goode, Jenne, Varnell & Scott, Cleveland, for appellees.
   OPINION

PARROTT, Presiding Judge (E. S.).

This is an appeal by Douglas Billings and wife Martha from a decree of the Chancery Court of Bradley County rescinding a sale of real estate and awarding $66,900.00 to appellees, Allan C. Chastain and wife Jeannie.

Appellants insist the chancellor erred in finding the appellants (1) misrepresented the condition of the house, (2) erred in awarding rescission because the contract of sale was partially executory, and (3) erred in requiring appellants to file a $25,000.00 appeal bond.

On November 23,1976, by warranty deed, the Billingses conveyed to the Chastains a new three-level house which had been constructed by Douglas Billings. It is undisputed that before the purchase the Chas-tains inquired of Mr. Billings and his real estate agent, Steve Calfee, as to the dryness of the first level. Both Billings and Calfee represented to the Chastains that there was no water problem and on no occasion had there been any dampness in the house.

On December 8, some two and one-half weeks after the house was purchased but before the Chastains had moved into it, during and after a rain the water came through the walls on the first level covering the entire floor area with one to one and three-fourths inches of water, saturating the carpet. It was necessary to remove the carpet from the entire area. Thereafter Mr. Billings took a part of the sheetrock off the walls and attempted to treat the inside walls with a water repellant substance called thero-seal.

Mr. Chastain testified that on February 23, March 4, March 5, March 12 and March 13 water came into the first level of the house. Mr. Billings does not deny that he told the Chastains that there had never been any water problem in the house. At least two disinterested witnesses testified that they visited the house during construction and observed water in the first level. It is insisted by Mr. Billings that after he treated the inside walls and unstopped the underground drain, the house has had no further water problem. However, we note from Mr. Billings testimony that he has constructed four houses with basements or lower levels and each of these houses has had a water problem. There is testimony by experienced contractors that the attempted water-proofing on the inside wall would not permanently prevent water leakage.

The water on the first level was not the only problem with the house. Expert witnesses who inspected the house testified that the plumbing is substandard, electrical wiring substandard, that underneath the steps going into the first level there was plywood placed on dirt which would eventually rot. Construction around trees was substandard, no soffit ventilation, part of the house did not have siding, the heatolator in the fireplace was improperly installed, and there was no fire cap on the chimney. Another serious defect was that the chimney was not anchored and has pulled away from the wall. One witness testified that you could move the chimney with your hand.

After reviewing the testimony and examining the exhibits, we concur with the chancellor’s finding that the workmanship in many areas does not meet the expected standards. Further, we concur that the house is so defectively constructed that the only equitable and fair thing to do is to grant a rescission of the sale.

We find no merit in appellant’s argument that it was not true the appellant or his agents misrepresented the condition of the premises conveyed. The proof clearly shows that appellants told appellees there had been no water problem in the house when in fact there had been water problems before the sale.

It is well established that fraud and misrepresentation in the sale of real estate renders the contract voidable. Hunt v. Walker, 483 S.W.2d 732 (Tenn.App.1974); 91 C.J.S. Vendor and Purchaser § 54. Our Supreme Court and this Court, in cases dealing with sales of real estate, have quoted with approval from American Law Institute, Restatement of Torts (2d), Sec. 552, Tentative Draft No. 11, dated April 15, 1965, the following:

(1) One who, in the course of his business, profession or employment, or a transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon such information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) The liability stated in subsection (1) is limited to loss suffered
(a) By the person or one of the persons for whose benefit and guidance he knows the information to be intended; and
(b) Through reliance upon it in a transaction in which it is intended to influence his conduct.

Tartera v. Palumbo, 224 Tenn. 262, 453 S.W.2d 780 (1970); Hunt v. Walker, supra.

Appellants argue that rescission should not be granted because appellants had agreed to make all necessary repairs at their expense within a period of one year from the date of purchase. It is true that if an adequate remedy of law exists, such as an award of damages, rescission will not be granted. In the instant case there is testimony from experienced contractors that the only satisfactory way of permanently stopping the seepage of water in the first level would require digging to the bottom of the foundation and treating the walls from the outside. To do such treatment would require removing decks and other parts of the house and could only be done at unusually high costs. There is also testimony that the house walls were placed on a concrete slab without any footings. There is no explanation as to how acceptable footings could now be put under the house. We reiterate what we stated earlier that the house was so poorly constructed that the only fair and equitable relief is rescission of the contract.

The chancellor’s order requiring appellant to file a $25,000.00 appeal bond in no way affects the merits of this cause. If the chancellor was in error, it is harmless error. T.C.A. 27-117. The bond has been made, the appeal perfected and appellants have had their case reviewed.

In the chancellor’s decree awarding the Chastains $66,900.00 plus interest paid from the date of sale and directing the Chastains to quit-claim their interest in the said property to the defendants, we note that the chancellor did not require the Chastains to pay reasonable rent for the two and one-half months they occupied the house but did take into consideration such by not requiring the Billingses to reimburse the Chas-tains for the $1500.00 expense incurred in closing the sale.

It results we affirm the chancellor’s decree with costs taxed to the appellants.

GODDARD and NEARN, JJ., concur.


author: TATUM, Judge.

text:
    Eddie Lee RANDOLPH, Jr., Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 9, 1978.
    Certiorari Denied by Supreme Court Sept. 18, 1978.

      Edward G. Thompson, Public Defender, A. Kemp Stallings and Ural B. Adams, Jr., Asst. Public Defenders, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert L. Tucker, Asst. Atty. Gen., Nashville, Alan E. Glenn and Kenneth R. Roach, Asst. Dist. Attys. Gen., Memphis, for appellee.
   OPINION

TATUM, Judge.

The appellant, Eddie Lee Randolph, Jr., was convicted of assault and battery upon a female over 12 years of age with intent to rape, and his punishment was fixed at not less than three years nor more than seven years in the State Penitentiary. He was also convicted of an attempt to commit a felony (crime against nature), for which his punishment was fixed at not less than one nor more than three years in the State Penitentiary. The Trial Judge ordered the penitentiary sentences to run concurrently.

The appellant assigns error testing the sufficiency of the evidence and complaining of the admission of certain evidence. The assignments are without merit.

We will summarize the facts established by the accredited evidence. Shortly before dark on 19 May 1976, the 22-year old victim and a 14-year old companion, named Ar-menta, were on an errand near their home in Memphis. A van driven by the appellant drove past the two girls, then backed up and stopped. DeAutrey Brown, a companion of the appellant, opened the door of the van, stood up, and pulled the two girls into the van. Although the girls resisted and protested, the appellant drove them to McKellar Park and stopped the van.

After waiting until darkness, the appellant drug and pulled the victim toward McKellar Lake. He lowered her pants and panties and attempted to insert his penis into her vagina, but was unsuccessful because of her resistance. He then made an attempt to force the victim to perform an oral sex act, but failed in this endeavor because the victim bit his penis when he placed it in her mouth. The victim was then able to break away from the appellant and she ran to the van since her companion, Armenia, was there.

When the victim reached the van, Brown grabbed her by the arm. She saw a group of men in the area, broke loose from Brown, and ran to the men. The unknown men effected a rescue and recovered five dollars ($5.00) which the appellant had taken from the victim. They forced the appellant and Brown to lie down while the girls escaped and advised the girls to call a cab. They did not detain the appellant or Brown.

When the girls were approaching their residence in the taxicab, they observed the appellant’s van parked outside of a lounge near their residence. The girls obtained assistance from their parents and police, then went to the nightclub, where the appellant was identified and arrested.

Evidence was admitted to prove that while the appellant and the victim were away from the van, the appellant’s companion, Brown, raped the victim’s companion, Armenia. The appellant did not testify and offered no evidence.

Under his assignment attacking the sufficiency of the evidence, the appellant argues that the State failed to prove that he had criminal intent to commit either crime for which he was convicted. The element of intent may be proved by circumstantial evidence. In fact, instances are rare indeed when intent can be proved by direct evidence; it must nearly always be shown by circumstantial evidence. State v. Scates, 524 S.W.2d 929 (Tenn. 1975); Hall v. State, 490 S.W.2d 495 (Tenn. 1973). The record contains much evidence of the use of force not detailed in the above summary of facts. The appellant has failed to establish that the evidence preponderates against the jury verdicts with respect to any necessary element of either offense. We must overrule this assignment. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

The appellant assigns further error:

“The Court erred in allowing in unrelated evidence of the activities of another man in the van, out of the presence of the victim and the appellant, because there was no evidence that these two men were aiders and abettors, or conspirators, as to a specific criminal intent, once the two men became separated.”

The Trial Court permitted the victim’s companion, Armenia, to give testimony describing the events when she was raped by Brown, while the appellant and the victim were away from the van. The Trial Judge stated that this evidence was admissible because the State had established a conspiracy between Brown and the appellant.

Evidence of any act or declaration of a conspirator during the conspiracy, and in furtherance of it, is admissible as substantive evidence against any coconspirator on trial for the commission of the target crime. The act or declaration of one conspirator, or accomplice, in the prosecution of the criminal enterprise, is considered the act of all, and is evidence against all. Each conspirator and accomplice is deemed to assent to what is done by any other in furtherance of the common object. To prove a conspiracy, it is not necessary that the State show a formal agreement between the parties to do the unlawful act, but a mutual implied understanding is sufficient, although not manifested by any formal words, or by a written agreement. The unlawful confederation may be established by circumstantial evidence and the conduct of the parties in the execution of the criminal enterprise. Conspiracy implies concert of design and not participation in every detail of execution. See, Solomon v. State, 168 Tenn. 180, 76 S.W.2d 331 (1934); Owens v. State, 84 Tenn. 1 (1885); Strady v. State, 45 Tenn. 300 (1868); 3 Wharton’s Criminal Evidence, § 642 (13 Ed. 1973).

We think that the evidence was sufficient to support a finding that the appellant and DeAutrey Brown conspired to abduct the victim and her companion, remove them to a secluded area, and sexually attack them. They were aiding and abetting each other in the endeavor.

The evidence was admissible for yet another reason. The activities of Brown constituted part of the res gestae. In Ellison v. State, 549 S.W.2d 691, 696 (Tenn.Cr.App.1976), this court quoted, with approval, from Underhill Criminal Evidence, § 191 (4th Ed. 1956):

“Res gestae is from the Latin meaning ‘things done’, and includes the circumstances, facts and declarations incidental to the main fact or transaction, necessary to illustrate its character, and also includes acts, words and declarations which are so closely connected therewith as to constitute a part of the transaction. The expression, res gestae, as applied to a crime, means the complete criminal transaction from its beginning or starting point in the act of the accused until the end is reached. What in any case constitutes the res gestae of a crime depends wholly upon the character of the crime and the circumstances of the case.
The rule of res gestae under which it is said that all facts which are a part of the res gestae are admissible, is a rule determining the relevancy and not the character or probative force of the evidence. If the court determines that the fact offered is a part of the res gestae, that fact is then relevant. Relevancy is always a judicial question to be determined according to the issue which is to be tried. Taking the main facts which are embraced in the commission of any crime and which are essential to be proved, it will be found, in most instances, that they are connected with others which are not essential to be proved, but which tend more or less to prove those facts which are to be proved. Every occurrence which is the result of human agency is more or less implicated or involved in other occurrences. One event is the cause or result of another, or two or more events or incidents may be collaterally connected or related. Circumstances constituting a criminal transaction which is being investigated by the jury, and which are so interwoven with others, and with the principal facts which are at issue that the[y] can not be very well separated from the principal facts at issue without depriving the jury of proof which is necessary for them to have in order to reach a direct conclusion on the evidence, may be regarded as res gestae. . . ”

It has been said that in substance, “res gestae” may be capsuled as to what is relevant. There is no certain formula to measure what is res gestae, but it depends upon the facts and circumstances and in the final analysis, addresses itself to the discretion of the Trial Court. When doubtful, it is a question for the jury. The authorities agree that each case must be decided on its own facts. Ellison v. State, supra.

We think that under the facts of this case, the conduct of the appellant and Brown was a part of the same transaction, and Brown’s conduct was interwoven with the appellant’s conduct to the extent that it could not be separated without depriving the jury of proof necessary for them to have in order to reach a direct conclusion on the evidence. To exclude evidence of what Brown and Armenta were doing while the appellant was assaulting the victim, would leave the jury with only a fragmental account of the episode; the jury would not have the “full story.” The Trial Judge was correct in admitting this evidence.

Finding no error, we affirm the judgment of the Criminal Court.

SAM LEWIS, Special Judge, and DUNCAN, J., concur.


text:
    Ted CARVER, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    July 11, 1978.
    Certiorari Denied by Supreme Court Aug. 28, 1978.

      Thomas E. Mitchell and Ferdinand Powell, Jr., Johnson City, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, William R. Mooney, Asst. Dist. Atty. Gen., Johnson City, for appellee.
   OPINION

TATUM, Judge.

The appellant, Ted Carver, appeals from the judgment of the Criminal Court revoking his probation and requiring him to serve sixteen concurrent sentences of not less than three years nor more than four years in the State Penitentiary, for receiving and concealing stolen property. The trial court revoked probation after an evidentiary hearing and a finding that he had violated the terms of probation by possessing marijuana. The judgment of the Criminal Court is affirmed.

In two assignments of error, the appellant complains of the Criminal Court’s refusal to require the State to disclose the name of an informant who told police officers that his Ford van contained marijuana. The appellant filed a pre-trial motion seeking to require the State to disclose the name of this informant and the motion was supported by an affidavit. At the beginning of the evidentiary hearing, the appellant testified that he adopted the affidavit by reference, but the affidavit was not made a part of the Bill of Exceptions and was not authenticated by the trial judge, though it does appear in the Technical Record. When an affidavit is not made a part of the Bill of Exceptions, though copied into the Technical Record, it cannot be considered on appeal for any purpose. Driscoll v. State, 191 Tenn. 186, 232 S.W.2d 28 (1950); Letner v. State, Tenn.Cr.App., 512 S.W.2d 643 (1974). Therefore, in considering the evidence, we cannot look to the affidavit, but are restricted to the contents of the Bill of Exceptions.

The State’s evidence was that on the evening of 25 January 1978, two police officers, with the consent of the appellant, searched his van and found five plastic bags containing marijuana, wrapped in a green paper bag. The officers requested permission for the search acting “on information.” The trial judge refused to require the police officers to give the name of the person who furnished the information.

The appellant testified that he had no knowledge of the marijuana and that he was not aware of it being in his van until the officers found it under the dash. He testified that he had been told by one of the officers that the officer “had been informed” that the appellant was “dealing in marijuana.” The appellant named several persons who had a grudge against him, but could give no facts suggesting that any one of them placed the marijuana in his van.

The appellant had never seen marijuana before and had never seen the green bag before. If his fingerprints were on the green bag, it was because two or three of these green bags were brought into his restaurant when he was decorating for Christmas. The green bags used during the decorating were discarded in the dumpster.

No one but the appellant had used his van that day. An employee had used the van three or four days prior to the finding of marijuana, but the employee had no known grudge against him. When the appellant left the store that night, he locked the van, but it had not been locked during the day. He testified that the officers placed him under arrest for possessing marijuana before they opened the green bag.

It is the appellant’s theory that he was entitled to the identity of the informant so that the informant could be subpoenaed to testify “that appellant was not connected with the marijuana found in the vehicle.” The appellant speculates that the informer would testify that he (the informer) planted the marijuana in the appellant’s van. The State contends that the identity of the informer is privileged.

The leading case on this proposition is Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), in which the United States Supreme Court reversed a conviction for a drug violation when it appeared from the evidence that the informer was an active participant in the illegal activity and it was made to appear that the testimony of the informer was “highly material.” This court was faced with a similar factual situation in Roberts v. State, Tenn.Cr.App., 489 S.W.2d 263 (1972). On the question of when the identity of the informer must be given to a defendant, the Roviaro court said:

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

This court, in Roberts, supra, adopted the above-quoted language and held:

It is the general law, subject to certain exceptions and limitations, that the prosecution is privileged to withhold from an accused the identity of an informer. See Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487. This practically universal rule is predicated on public policy and seeks to encourage citizens to assist in crime detection and prevention by giving information to law enforcement officials without unduly exposing themselves to the danger inherent in such laudable activity and to make possible their continued usefulness in future disclosures that the revelation of their identity would probably hamper and prevent. “. [I]t should be a discretionary matter with the trial judge, as to whether the name of the informant is given or not . . . ” Simmons v. State, supra. [Emphasis supplied]

We think that the circumstances of this case differ crucially from those cases in which disclosure was required. We hold that the trial judge did not abuse his discretion and that it was not error to refuse to require the State to divulge the identity of the informer.

Here, we are dealing with an individual, not shown to be an active participant, who communicates knowledge to police officers who, acting independently, procure evidence of the crime. We are not dealing with one shown to be an active participant in the crime nor with one shown to have been present and able to testify directly about the very transaction constituting the crime as in the Roviaro and Roberts cases. Nor is this a situation in which the informer is a person with whom the accused is charged to have been dealing, such as an indictment alleging a sale to anonymous with anonymous being the informer. The fact that an informer existed, contributed nothing to the State’s case; the evidence favorable to the State would have been the same if no mention had been made of the informer. See Miller v. United States, 5 Cir., 273 F.2d 279 (1959).

The appellant speculates that one of the persons mentioned by him who might have had a grudge against him could have been the individual who placed the marijuana in his van and he further speculates that such person might have been the informer, but none of this is supported by any evidence. In considering this proposition, we adopt the conclusion reached by the 5th Circuit, United States Court of Appeals, in Miller v. United States, supra as follows:

But this is but a belated suggestion of a possibility as the record does not, as, for example, it did in Roviaro and Gilmore [Gilmore v. United States, 5 Cir., 256 F.2d 565], supra, reveal any factual basis for the assertion that “it is well within the realm of probability.” If the informer’s relation to the acts leading directly to or constituting the crime may be assumed from a fertile imagination of counsel, the Government in practically every case would have to prove affirmatively that the informant had not done any such likely acts. Having done that, all would be revealed and the informer privilege, deemed essential for the public interest, for all practical purposes would be no more.

The issue of whether the marijuana had been placed in the appellant’s vehicle by someone else went to the credibility of the appellant’s testimony, denying that he placed the marijuana in his vehicle or had any knowledge of it. In probation revocation hearings, the credibility of witnesses is for the determination of the trial judge. Bledsoe v. State, 215 Tenn. 553, 387 S.W.2d 811 (1965). The trial judge’s findings in probation revocation proceedings have the weight of a jury verdict. Jenkins v. State, Tenn.Cr.App., 496 S.W.2d 521 (1973); Raper v. State, 3 Tenn.Cr.App. 406, 462 S.W.2d 261 (1970). The trial judge’s determination of credibility was against the appellant.

The judgment of the Criminal Court is affirmed.

WALKER and DUNCAN, JJ., concur.


author: PER CURIAM.

text:
    DELTA BRANDS, INC., Petitioner, v. BORDEN METAL PRODUCTS COMPANY, Respondent.
    No. B-7549.
    Supreme Court of Texas.
    July 12, 1978.
    Rehearing Denied Oct. 11, 1978.
    Michael R. Cooper, Dallas, for petitioner.
    Vinson & Elkins, Ben H. Sheppard, Jr., Houston, McClain, Harrell & McClain, William Cleo McClain, Conroe, for respondent.
   PER CURIAM.

None of the points of error brought before this Court concern the holding of the Court of Civil Appeals embodied in the published portion of the opinion. 570 S.W.2d 1.

The application for writ of error is refused, “No Reversible Error.”


author: DENTON, Justice.

text:
    Oliver A. HOWLAND, Petitioner, v. J. T. HOUGH et ux., Respondents.
    No. B-6964.
    Supreme Court of Texas.
    July 19, 1978.
    Rehearing Denied Oct. 11, 1978.

      Vernon M. Pfluger, Ferguson & Ferguson, Russell G. Ferguson, Austin, for petitioner.
    Sneed, Vine, Wilkerson, Selman & Perry, Forest N. Troutman, Austin, for respondents.
   DENTON, Justice.

This is an action in trespass to try title brought by Oliver A. Howland against J. T. Hough and wife, Lucille Hough, to recover an 8.36 acre tract of land in Travis County, Texas. After a jury trial, the trial court rendered judgment vesting title in the defendant Houghs. The court of civil appeals reversed and remanded for new trial because of the erroneous exclusion of evidence. 553 S.W.2d 162. We reverse the judgments of the courts below and render judgment vesting title and possession of the land in Oliver A. Howland.

Howland attempted to prove title to the disputed tract of land by a regular chain of title from the sovereign. Alternatively, he pleaded and offered evidence relating to adverse possession under the 3, 5, 10, and 25 year statutes of limitation. Finally, he contended that he was in possession of the property prior to the Houghs’ entry upon the land. The Houghs, on the other hand, pleaded not guilty, and claimed adverse possession under the 3, 5, 10, and 25 year statutes of limitations.

In answer to special issues, the jury found: (1) Neither Howland nor the Houghs had held adverse possession of the land for a 10 year period prior to the filing of this suit. (2) Howland was in possession of the tract prior to February 25, 1974, the date of the Houghs’ alleged unlawful entry. (3) The Houghs were possessors of the tract in good faith “for at least one year next before the commencement of this lawsuit on October 15,1974.” (4) The Houghs made valuable improvements to the land without the intent to defraud, and these improvements were removable and enhanced the value of the land by $17,870. Based upon the jury verdict, the trial court rendered judgment that plaintiff Howland take nothing and that title to the land be vested in the defendant Houghs.

In the court of civil appeals, Howland sought a reversal and rendition in his favor, or alternatively, a remand for a new trial. The court held that Howland had not established his title by a regular chain of conveyances from the sovereign, and that he had not established that he was in actual prior possession of the tract. Therefore, the court overruled his rendition points. Based upon the alleged erroneous exclusion from evidence of a prior deed given by the Houghs which contained an admission against interest of the Houghs’, the court of civil appeals reversed and remanded for new trial. Howland now seeks outright rendition of judgment in his favor based upon either the strength of his own title or the jury finding of his prior possession.

The 8.36 acre tract in dispute was originally a part of the James O. Irvine Survey, sometimes called the “Irwin” or “Erwin” survey. Howland introduced nine deeds into evidence to establish his chain of title from the sovereign. The deeds adduced in evidence had two principal defects. First, after the patent from the Republic of Texas in 1845 to James O. Irvine, there is a gap in title until the 1878 deed from Henry Hill to August Meissner. Second, the tract in dispute is not within the literal calls of the deed from Hill to Meissner, nor any of the subsequent deeds in Howland’s chain of title.

Howland contends that the missing link in his chain of title can be eliminated by application of the presumption of a grant doctrine. He argues that long continued and undisturbed possession of the land should give rise to the presumption of a conveyance as a matter of law, especially since the gap was 96 years prior to the filing of this suit. The Houghs assert that the presumption of a lost grant is one of fact, and is for the jury to decide. Since no special issue was requested or submitted on presumed grant, the Houghs argue that the issue has been waived and Howland has not proven a complete chain of title from the sovereign.

We agree that it is the law in Texas that the presumption of a grant which arises from long continued possession of property under a claim of title coupled with other corroborating circumstances is generally a presumption of fact. Thus, the trier of fact usually must determine whether the inference of a grant is warranted by the evidence. Swilley v. McCain, 374 S.W.2d 871 (Tex.1964); Herndon v. Vick, 89 Tex. 469, 35 S.W. 141 (1896); Page v. Pan American Petroleum Corp., 381 S.W.2d 949 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.), cert. denied, 382 U.S. 820, 86 S.Ct. 45, 15 L.Ed.2d 66 (1965); 4 F. LANGE, LAND TITLES AND TITLE EXAMINATION § 405 (Texas Practice 1961). Whether there is an issue of fact or law, however, depends upon the record in each case.

The deeds in Howland’s chain of title show continuous record conveyances of the land described therein from the granting of the Irvine patent until the present time, with the sole exception of the 1845-1878 period. The Houghs’ claim to title arises from a deed given to them by Jesus Garcia in 1947, along with a “Correction And Supplemental Deed” in 1954. No prior chain of title was shown by the Houghs, other than a reference in their deed from Garcia to a sheriff’s deed in 1904. That deed was not produced in evidence. The Houghs have not tried to connect their title to either the Irvine patent or any purported record title holder during the 33 year gap in title.

Because the gap in Howland’s title occurred 96 to 129 years before this suit was brought, no direct evidence was available as to possession of the land. Proof of possession is not, however, an absolute prerequisite to the presumption of a lost conveyance. In Magee v. Paul, 110 Tex. 470, 479, 221 S.W. 254, 257 (1920), this Court said:

Actual possession of the land by Stephen Albert or by his assigns was not essential to the establishment by circumstantial evidence of the alleged missing link or links in the title . .

See Baldwin v. Goldfrank, 88 Tex. 249, 31 S.W. 1064 (1895); Garner v. Lasker, 71 Tex. 431, 9 S.W. 332 (1888); Brewer v. Cochran, 45 Tex.Civ.App. 179, 99 S.W. 1033 (Galveston 1907, writ ref’d).

Since the transactions with respect to the land in controversy took place so long ago, we regard Howland’s unbroken chain of title since 1878 as evidence of the assertion of ownership of the land. With reference to the evidence necessary to presume a grant, it has been stated:

Where then, under such rule it is sought to establish such deed from circumstances, and among such circumstances are long and continuous claim of title and ownership, which is not shown to have been disputed by any adverse claim, with such indicia of ownership by payment of taxes, successive conveyances, etc., as are here present, we can see no objection to the application of the rule, referred to, to the admission of evidence and declarations made by persons claiming such title and ownership, which serve to explain such claim in cases where the parties are all dead, and length of time, by destroying other, perhaps more satisfactory, proof, has created the necessity of a resort to the evidence of such declarations.
******
Every such sale and conveyance involves necessarily, by presumption, a claim of title in the grantor, which is nothing more than a declaration that he has title, and it is for that purpose that the evidence is admitted.
******
The claim of title and assertion of ownership, as evidenced by various acts of sale and conveyances, all made matter of public record, and by payment of taxes by his vendees, are admissible as circumstances, without actual possession, which is not essential, especially in case of wild land such as this, of which there has never been actual possession by anybody.

Brewer v. Cochran, supra, at 99 S.W. at 1035-36. Since there is no suggestion that a claim has ever been asserted by any purported heir or grantee of James O. Irvine, and since there is a series of sales and conveyances of the land in Howland’s chain of title which evidences an assertion of ownership, we regard possession of the land as sufficiently established by the circumstances as a predicate for presuming a grant. Although the presumption of a lost grant or conveyance is usually one of fact, it has been sufficiently established in this case to presume it as a matter of law because the deeds are so ancient and the evidence is undisputed. Page v. Pan American Petroleum Corp., 412 S.W.2d 797 (Tex.Civ.App.—Houston 1967, writ ref’d n. r. e.); Page v. Pan American Petroleum Corp., 381 S.W.2d 949 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.), cert. denied, 382 U.S. 820, 86 S.Ct. 45, 15 L.Ed.2d 66 (1965). With reference to the doctrine of presumption of a grant, this Court has said:

The rule is essential to the ascertainment of the very truth of ancient transactions. Without it, numberless valid land titles could not be upheld. Its application becomes more and more important with the passing years, as it becomes more and more difficult to get living witnesses to that which long ago transpired.

Magee v. Paul, 110 Tex. 470, 478, 221 S.W. 254, 257 (1920). We therefore hold that Howland has filled the ancient 1845-1878 gap in his title by establishing the facts necessary to presume a grant from James O. Irvine to Henry Hill as a matter of law.

Howland’s next problem in proving a chain of title from the sovereign is that the disputed tract does not fall within the literal calls of his deed. The patent from the Republic to James O. Irvine contained the following description:

Beginning at the North West corner of quarter No. 5 Surveyed for Wm. Rhodes. [1] Thence South 71° West two thousand one hundred and fifty varas the South East corner of Survey No. 3 of Harvey’s work. [2] Thence South 30° West eight hundred varas the North East corner of Survey No. 2 of Harvey’s work. [3] Thence South 60° East two thousand five hundred varas the South East corner of said No. 2. [4] Thence North 30° East one hundred and seventy varas the North East corner of Survey No. 1 of Harvey’s work. [5] Thence South 60° East nine hundred and fifty varas a stake on the East boundary line of Survey No. 1. [6] Thence North 19° West nine hundred and forty varas the North West corner of a survey made for Jas. Howlet [sic]. [7] Thence North 71° East one hundred and eighty six varas a stake on the West boundary line of quarter No. 5. [8] Thence North 19° West two Thousand one hundred and ninety seven varas to the place of beginning.

The next deed in the chain of title is from Henry Hill to August Meissner. This deed purported to convey the southernmost 100 acres of the original survey, which is the same land covered in all of the deeds in Howland’s chain of title, with some reservations not here relevant. All of the subsequent deeds either incorporate the Hill deed description by reference, or use a closely similar description. The Hill to Meissner deed contains this description:

One hundred acres, more or less, off of the Southern portion of the J. O. Erwin survey situated in Travis County and State of Texas, aforesaid, [1] Beginning at a stone mound 293 vs. N. 19 W. from seventh Corner in the Calls of Original Field notes of said Irwin tract. [2] Thence S. 71 W. to a stake in the S.W. Boundary of said Irwin tract. [3] Thence S. 60 E. 391 varas to a corner of said survey. [4] Thence S. 30 W. 170 vs. [5] Thence S. 60 E. 950 vs to a cor. [6] Thence N. 19 W. 940 varas to a corner. [7] Thence N. 71 E. 170 vs to a corner. [8] Thence N. 19 W. 293 vs to Beginning.

The following drawing is for illustration purposes and is not precisely to scale. The calls in the deeds in Howland’s chain of title are numbered 1 through 8; the calls in parentheses are the corrected calls as argued by Howland. The eight calls in the Irvine survey are designated “1-1” through “1-3” and (4) through (8).

The Hill deed stated that it was conveying the southern portion of the Irvine survey. If this was the intent, however, there are at least three errors in the calls in the Hill deed, which are repeated in the subsequent deeds in Howland’s chain of title. First, if the second call in the Hill deed is followed to the southwest boundary of the Irvine survey, subsequent calls go outside of the Irvine survey, as indicated by the dotted lines in the diagram. In order to mesh with the comers in the Irvine patent, the second call must “dip” south to a point 391 varas from the end of the third call in the Irvine survey. Second, the fourth call in the Hill deed appears to be reversed. The fourth call in the Irvine patent said “North 30° East” 170 varas, while the Hill deed and the other deeds in Howland’s chain of title say “S. 30° W. 170 vs.” Even if the second call is corrected to reflect the dip, the fourth call in the Howland deeds, if not corrected, would also go outside the Irvine survey. Third, the distance in the seventh call of the Howland chain of title is listed as 170 varas, while the Irvine patent provided for a distance of 186 varas. A variance in this distance would skew the northeastern boundary of the tract in relation to the calls of the Irvine survey.

Howland argues that these errors are obvious and should be corrected by this Court in order to harmonize the deeds with the original survey. In William Carlisle & Co. v. King, 103 Tex. 620, 624-26, 133 S.W. 241, 242-43 (1910), this Court said:

The rule of construction of deeds is, “that where there is an evident mistake in the calls, the court must, if practicable, find out from the deed itself and correct errors so as to give effect to the deed.” Poitevent v. Scarborough, 103 Tex. Ill, 124 S.W. 87; Mansel v. Castles, 93 Tex. 414, 55 S.W. 559; Coffey v. Hendricks, 66 Tex. 676, 2 S.W. 47.
* sfc * * * *
This purpose must be observed in the construction of the deed, and it cannot be effectuated in any other manner than by correcting the palpable errors which appear in the calls as expressed in that instrument. We believe that there is no difficulty in reconciling all of these calls, thereby giving a true and correct expression of the intent and purpose of the makers of this instrument.

It is an established rule that the footsteps of the surveyor shall, if possible, be followed, and natural or artificial monuments are to be accepted as controlling over calls for course and distance. Wheeler v. Stanolind Oil & Gas Co., 151 Tex. 418, 252 S.W.2d 149 (1952); Stafford v. King, 30 Tex. 257 (1867). It is also permissible to run the calls in reverse order to ascertain the true lines and form a closure, since no greater dignity is accorded to the first call than the last. Miles v. Sherwood, 84 Tex. 485, 19 S.W. 853 (1892); Ayers v. Lancaster, 64 Tex. 305 (1885); Sweats v. Southern Pine Lumber Co., 361 S.W.2d 214 (Tex.Civ.App.—Houston 1962, writ ref'd n. r. e.).

The first deed discrepancy is in the second call of the deeds in Howland’s chain of title, beginning with the Hill deed. The second call in the Hill' deed does not specify a distance, but rather provides that the northern boundary line of the 100 acre tract runs from the point of beginning south 71° west “to a stake in the S.W. Boundary of said [Irvine] tract.” It is not clear from the record where that stake is or whether it still exists as a marker; however, it is obvious that the line does not run straight from the beginning to the southwest boundary of the Irvine survey. If it did run straight, calls 4 through 6 would include land which does not lie within the Irvine survey. Rather, the line described in the second call must dip to the south as indicated in the diagram, because the end of the third call is described as a corner of the Irvine survey. Therefore, since the third call in the Hill deed starts at a stake in the southwestern boundary of the Irvine survey, and then runs at precisely the same south 60° east angle to a corner in the Irvine survey, it seems obvious that the corner where the third and fourth calls meet is the same in the Hill deed as in the Irvine patent. The second call thus ends on the southwestern line of the Irvine survey at a point 391 varas from the corner of the third and fourth calls. We therefore correct this obvious error in the calls in accordance with William Carlisle & Co. v. King, supra.

The second discrepancy in the calls of the Hill deed is in the fourth call. The fourth call in the Irvine survey says north 30° east 170 varas, while the fourth call in the Hill deed says south 30° west 170 varas. We regard this as another obvious error in the description in that the call was inadvertently reversed. If the fourth call in the Hill deed is run as it says, calls 4 through 6 again would describe land not lying within the Irvine survey. By merely reversing the fourth call, the fifth and sixth calls and the corners of the Hill deed coincide with the fifth and sixth calls and the corners of the Irvine patent. This would effectuate the intent of the grantor to convey the southern 100 acres of the Irvine survey.

The third discrepancy in the description of Howland’s land is in the seventh call in the Hill deed. The seventh call of the Irvine survey ran “North 71° East one hundred and eighty six veras a stake on the West boundary line of quarter No. 5.” The seventh call in the Hill deed reads “N. 71 E. 170 vs. to a corner.” This is a discrepancy which the parties fail to mention, but we must again conclude that either the Irvine survey or the Hill deed is incorrect in the distance described in the seventh call. Whatever distance is correct, we regard the Irvine patent and Hill deed as being in harmony since the angles match and the seventh call in the Hill deed expressly states that it ends at a corner of the Irvine survey. Furthermore, if this corner coincides, then the eighth call in the Irvine patent and the Hill deed will match because both call for an angle of north 19° west to the two points of beginning. The most recent surveys in evidence show the line representing the seventh call to be approximately 447 feet in length, and it is undisputed that the eastern 25 feet of the 8.36 acre tract in dispute was sold off for right of way purposes; 447 feet plus the 25 feet sold equals 472 feet, or approximately 170 varas. In harmonizing the Irvine patent and the Hill deed, we conclude that the seventh call in the Irvine patent should have been 170 varas in length rather than 186 varas. We also note that if the calls in the Hill deed are run in reverse order, the disputed 8.36 acres lies within the description of the deeds in the Howland’s chain of title. It is permissible to reverse calls in order to form a closure. Miles v. Sherwood, supra; Sweats v. Southern Pine Lumber Co., supra.

After correcting obvious errors in calls and reconciling the conflicting distances, we conclude that Howland has proven his chain of title from the sovereign to the 8.36 acre tract in question. Since Howland has established his chain of title and the Houghs failed to obtain a jury finding in their favor on the issue of adverse possession, Howland is entitled to recover the disputed tract of land on the strength of his title. Our holding makes it unnecessary to consider How-land’s remaining points of error concerning prior possession.

The judgments of the courts below are reversed and judgment is here rendered vesting title and possession of the land in question in Oliver A. Howland.

GREENHILL, C. J., and McGEE and DANIEL, JJ., note their dissent.