text:
    F. C. BECKENDORF, Sr., Petitioner-Plaintiff, v. Richard H. SIMMONS, d/b/a Simmons Sales Company, Respondent-Defendant.
    Supreme Court of Tennessee.
    July 6, 1976.
    Henry L. Klein, J. W. Kirkpatrick, Memphis, for petitioner-plaintiff; Kirkpatrick & Lucas, Memphis, of counsel.
    Joe D. Spicer, Eugene Charles Gaerig, Memphis, for respondent-defendant; Holt, Batchelor, Taylor & Spicer, Memphis, of counsel.
   OPINION

HARBISON, Justice.

This case presents a claim against the lessee of a motor vehicle arising from its unauthorized use by an employee. Both the trial court and the Court of Appeals sustained motions for summary judgment filed on behalf of the employer. There were some conflicts as to the facts testified to by the employer and the employee in discovery depositions, which were used in support of the motion for summary judgment. We granted certiorari to consider whether the conflicts were sufficiently material to require further proceedings.

Despite some conflicting testimony, certain basic facts emerge without dispute from the pleadings and from two depositions on file. Respondent Simmons operated a small business, in which three other persons besides himself were employed. He leased a truck from a rental agency, and on September 18, 1971 this truck was involved in the accident in which the petitioner was injured. Only the claim of petitioner against the employer is involved in the present appeal.

One of the employees of respondent was Donald Wesley Piner, who was 28 years of age at the time his testimony was taken. He had been employed by respondent for about three years prior to the accident. At the time of the accident Piner was operating the leased truck contrary to the express instructions of his employer, and on a personal mission of his own. As the case comes here no liability is claimed against respondent by reason of the master-servant relationship. The testimony is uncontra-dicted that Piner was not using the vehicle, directly or indirectly, on any business of his employer. The accident occurred late on a Saturday afternoon. At that time Piner was heavily under the influence of alcohol.

It is clear from the record that there was no actual bailment of the vehicle by respondent to the employee. Ordinarily, of course, a bailor is not responsible to third parties for negligent acts of a bailee, but in this case there is not even a bailment relationship, because the vehicle was taken contrary to the express instructions of the employer, and completely without his knowledge, according to the uncontradicted testimony.

The single theory which is advanced by the petitioner to impose liability upon the employer in this Court is one of alleged negligence in failing to anticipate that the employee might take the vehicle without authority, become intoxicated, and injure a third person. The theory cannot actually be said to be one of “negligent entrustment”, as that term has generally been used in the cases, because, as previously stated, there was no actual bailment, “en-trustment”, or other permissive use, to sustain such a theory.

Under the testimony in the record, Piner was not by any means an habitual drunkard or an alcoholic. It is shown that he did drink to excess on some occasions, although the testimony is clear that he never drank while at work, nor while performing any authorized mission of his employer. On one previous occasion, about five months before the accident in question, Piner had been using the truck on a weekend for personal purposes, with the permission of his employer. On that occasion he exceeded the scope of the permission given, and took the vehicle to another city, where he was involved in a single-vehicle accident while under the influence of intoxicants. Respondent learned of this episode, and learned that the driver’s license of the employee was suspended or revoked as a result thereof.

In the months between the incident just mentioned and the accident involved in the present case, the employer denied the employee any further permission to drive the truck for personal purposes. Both he and the employee so testified. The employer testified that he also forbade the employee to use the truck on business, and said that he had Piner driven on business missions by other employees. Piner, however, testified that he in fact did drive the vehicle on several occasions in the interval in question, to make “service calls”. He also took the vehicle for personal use several times contrary to instructions, but there is no evidence of his drinking on any of these occasions. Piner testified respondent twice discovered his unauthorized use, and Piner was reprimanded on each of these occasions by the employer.

Piner and the other employees of respondent did not work on weekends, but they did have permission to come to the employer’s place of business and use equipment there for personal purposes. A key to the leased truck was in the respondent’s shop, readily accessible to Piner or any other employee. The theory of negligence basically is that respondent failed to take reasonable precautions to prevent the unauthorized removal of his vehicle from the premises, when he knew that Piner was no longer a licensed driver, knew that Piner sometimes took the truck, and knew that on some occasions he drank to excess.

The Court of Appeals held, correctly in our opinion, that the foregoing facts were insufficient to fasten personal liability upon the employer, even construing the conflicts in the depositions favorably to the petitioner.

Tennessee has long recognized the principle that the owner of a vehicle who furnishes or lends it to a known incompetent driver may be liable for damages to third persons injured by the negligence of that driver. See Rowan v. Sauls, 195 Tenn. 573, 578, 260 S.W.2d 880 (1953); Nicholson Construction Co. v. Lane, 177 Tenn. 440, 150 S.W.2d 1069 (1941); Reid v. Messer, 33 Tenn.App. 255, 231 S.W.2d 400 (1949).

In these cases, however, there was an actual bailment or entrustment in each instance by the owner to the driver, and in each instance the driver was either intoxicated when custody was delivered, or was known to be habitually addicted to excessive drinking. In none of the cases was there an unauthorized taking of the vehicle from the custody of the owner.

In the case of Parrish v. Yeiser, 41 Tenn.App. 690, 298 S.W.2d 556 (1955), the owner of the vehicle in question was held not liable as a matter of law in entrusting its custody to a youthful driver who had been known to have had an accident only a short time previously. In Brown v. Harkleroad, 39 Tenn.App. 657, 287 S.W.2d 92 (1955), a parent was held not guilty of negligence as a matter of law in purchasing and delivering custody of a vehicle to an adult son, despite the fact that the son had had numerous accidents, and there was evidence that he was known to be an habitually reckless and drunken driver.

In the recent case of Dukes v. McGimsey, Tenn.App., 500 S.W.2d 448 (1973) the bailor of a vehicle was sued when the bailee became intoxicated and injured a third person. The bailee was a youthful, unlicensed driver, and this fact was known to the bailor. The bailor further knew that the driver occasionally drank, although she testified that she had never seen or known him to drink to excess. On the occasion in question, she loaned the vehicle to the driver, who became excessively intoxicated and was involved in a serious accident. The trial court held the owner liable under a theory of negligent entrustment, but the Court of Appeals unanimously reversed and dismissed.

As stated, in the present case in order for petitioner to hold respondent liable, petitioner must go further than to show a negligent entrustment, because there was no entrustment at all, but an unauthorized taking and use of the vehicle. Such an unauthorized, non-permissive use is ordinarily insufficient even to establish extended liability insurance coverage to the driver under standard omnibus clauses found in liability policies. See Travelers Insurance Co. v. Weatherford, 520 S.W.2d 726 (Tenn.1975), and cases discussed therein.

Somewhat analogous to the present case are several reported decisions in which the owner of a vehicle left the keys in his parked automobile, and the vehicle was thereafter driven by an unauthorized person, who injured the claimant.

In Young v. Costner-Eagleton Motors, Inc., 214 Tenn. 306, 379 S.W.2d 785 (1964), the owner of the vehicle was an automobile sales agency. Parked on its lot, where the public was invited, .was the vehicle in question, and either the ignition was unlocked or there was a key in the switch. The vehicle was taken from the parking lot without permission of the owner, and the driver subsequently injured a third person, who sued both the driver and the owner.

Affirming the trial court, this Court held that the owner was not liable under these circumstances. The Court approved the rule laid down in the earlier decision of the Court of Appeals in Teague v. Pritchard, 38 Tenn.App. 686, 279 S.W.2d 706 (1954).

Citing cases from a number of jurisdictions, the Court of Appeals, in the Teague case, said:

“. . . the eases all seem to hold that the negligence of the thief in operating a stolen car is the efficient intervening proximate cause of the plaintiff’s injury, even though the owner was originally negligent in leaving the car parked in a position where it could easily be stolen.” 38 Tenn.App. at 691, 279 S.W.2d at 709.

In the case of Martel v. Chattanooga Parking Stations, 224 Tenn. 232, 453 S.W.2d 767 (1970), a vehicle was parked by the owner on a parking lot. Custody was entrusted to an attendant, who parked the vehicle and left the key in the ignition. In that case the vehicle was stolen from the parking lot, and the thief fatally injured the husband of the claimant. She sued the operator of the parking lot for wrongful death of her husband, but this Court sustained the action of the trial court in dismissing the suit, deeming the case controlled by the Costner-Eagleton Motors, Inc., and Teague cases, supra.

In the present case it is very doubtful that Piner was shown to be a sufficiently incompetent driver or sufficiently addicted to excessive use of alcohol to justify imposition of liability upon respondent, even had there been an actual bailment of the vehicle. See Dukes v. McGimsey, supra. Be this as it may, it seems clear that under the previous Tennessee decisions on the subject, personal liability should not be extended to respondent, the employer, under the facts shown here, where the taking of the vehicle was unauthorized, contrary to his express instructions, and entirely without his knowledge or consent.

We have examined with care the authorities from other jurisdictions relied upon by the petitioner, but do not find them controlling. In the case of Crowell v. Duncan, 145 Va. 489, 134 S.E. 576 (1926), suit was brought by an injured claimant against the owner of a taxi cab for the alleged negligence of the driver, who was both the son and the employee of the owner. The Virginia Court of Appeals held that there was sufficient evidence to establish a master-servant relationship under the facts, and in addition found that there was sufficient evidence to justify a verdict upon the basis of negligent entrustment. With regard to the latter, the Court stated the following facts which seem clearly to distinguish the case from the case at bar:

“The defendant admitted he knew his son drank intoxicants. He knew he had been arrested for transporting ardent spirits, and yet he admits that when the automobile was not otherwise engaged he permitted his son to use it at will.” 134 S.E. at 582.

Permissive use or actual entrustment also existed in the case of Levy v. McMullen, 169 Miss. 659, 152 So. 899 (1934). There the employee was shown to have the reputation of being a public drunkard, and in addition:

“The employers put the automobile at the disposal of the servant and instructed the public garage at which the automobile was kept to allow the servant to have it whenever he called for it.” 152 So. at 900.

This was also the situation in the case of McGowin v. Howard, 251 Ala. 204, 36 So.2d 323 (1948), in which liability was predicated upon a theory of negligent entrustment, the Court citing and relying upon the case of Nicholson Const. Co. v. Lane, 177 Tenn. 440, 150 S.W.2d 1069 (1941).

In the case of Arkansas-Louisiana Lumber Co. v. Causey, 228 Ark. 1130, 312 S.W.2d 909 (1958), there was also actual entrustment of the vehicle to the employee, who had been involved in at least four instances of driving while intoxicated, and his reputation of driving the vehicle while under intoxicants had been reported to his employers.

Negligent entrustment was also the theory of liability in the case of State of Maryland v. O’Brien, 140 F.Supp. 306 (D.Md.1956).

Research reveals a number of cases presenting facts similar to those of the instant case in which the courts have declined to impose personal liability upon an employer, where an employee took the keys to a vehicle contrary to the instructions of the employer. See Alford v. Parker’s Mechanical Constructors, Inc., 241 So.2d 759 (Fla.App.1970); Tinker v. Hirst, 162 La. 209, 110 So. 324 (1926); Fitiles v. Umlah, 77 N.E.2d 212 (Mass.1948).

In the present case it cannot fairly be said from the evidence that the employee had either express or implied permission from his employer to use the vehicle in question, and we have previously pointed out that it is conceded that liability cannot be predicated upon any theory of responde-at superior. An employer is ordinarily not liable for negligence of an employee while the latter is engaged on a personal mission of his own, even though he is properly in possession of the employer’s vehicle. Thus in the case of Silver Fleet Motor Express, Inc. v. Bilbrey, 22 Tenn.App. 244, 120 S.W.2d 997 (1938), an employee regularly took a vehicle to his home at night and on holidays, because the employer had no place to store it. The employee was not supposed to use the vehicle for personal pleasure, but on a Sunday afternoon, after taking the vehicle home on Saturday night, the employee did drive contrary to instructions and injured the claimant. The Court of Appeals held that the employer was not liable on a basis of respondeat superior, and, despite the fact that the employee was drinking at the time of the accident, found that the employer was entitled to a directed verdict as to any claim that he should have anticipated that the employee would step aside from his employment and enter upon a mission of his own. See also Etheridge Co. v. Peterson, 19 Tenn.App. 530, 90 S.W.2d 957 (1935).

The judgment of the Court of Appeals is affirmed at the cost of petitioner.

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


source: Caselaw Access Project

author: HARBISON, Justice.

license: Public Domain

text:
    ARGONAUT INSURANCE COMPANY, Appellant-Defendant, v. S. E. VANATTA et al., Appellees-Plaintiffs, and American Mutual Liability Insurance Company, Appellee-Defendant.
    Supreme Court of Tennessee.
    July 12, 1976.

      H. Francis Stewart, Robert L. Estes, Nashville, for appellant-defendant.
    James H. Cummings, Marshall E. Duggin, Woodbury, Dewey W. Pedigo, Nashville, for appellees-plaintiffs.
    John R. Rucker, Murfreesboro, for appel-lee-defendant.
   OPINION

HARBISON, Justice.

This is an action for workmen’s compensation benefits brought on behalf of the dependents of a deceased truck driver, James L. Vanatta. On this appeal the issues are the applicability of the Tennessee workmen’s compensation law to the death of decedent, and the effect of a “trip lease” executed by him in connection with the freight delivery which he was making at the time of his death.

The decedent was killed in a single vehicle accident on November 3,1971 while driving a tractor-trailer unit on U. S. Interstate 24 in Marion County, Tennessee. He resided in Cannon County, Tennessee but had been employed as a truck driver by Jack Cole-Dixie Highway Company at its terminal in Birmingham, Alabama. He was dispatched from the Birmingham terminal, and this was unquestionably his base of operations. He was, however, sent into many other states by and on behalf of his employer, which is a certificated carrier operating in interstate commerce. Because the contract of employment was made in Alabama, and decedent was employed at the Birmingham terminal, it is insisted on behalf of his employer that Tennessee has insufficient contacts with the claim to make its workmen’s compensation statute applicable.

Appellant relies upon the recent decision of this Court in the case of Ray v. Aetna Casualty & Surety Co., 517 S.W.2d 194 (Tenn.1974), in which the Court held the Tennessee statute inapplicable to the claim there under consideration. In that case, however, the contract of employment was made in Missouri, and the injury occurred there. The only significant contact between the claim and the State of Tennessee was that the workman resided in Shelby County, and he had learned of his job opportunity through a local union in Memphis. Under these circumstances it was held that the claimant’s remedy was under the workmen’s compensation law of Missouri.

In the present case, however, not only did the deceased and his dependents reside in Tennessee, but the accident occurred in the state. The trial court held that under these circumstances a claim for workmen’s compensation benefits could be asserted under the Tennessee statute. We are in agreement with this conclusion, even though upon these facts the family of the deceased might also have had a claim under the Alabama statute, had they seen fit to pursue the matter in that state. See Millican v. Liberty Mutual Insurance Co., 224 Tenn. 604, 460 S.W.2d 842 (1970); Brewer v. Pocahontas Coal Company, 221 Tenn. 130, 425 S.W.2d 582 (1968); United States Casualty Co. v. Standard Accident Insurance Co., 175 Tenn. 559, 136 S.W.2d 504 (1940). Accordingly, the assignment of error as to the jurisdiction of the Tennessee courts is overruled.

The remaining assignments of error by appellant arise out of and concern the consequences of the “trip lease” executed by the deceased truck driver a few days before his death. It is undisputed between the parties that the decedent was operating under this lease and was making a delivery for Diamond Transportation System, Inc. thereunder at the time of his fatal accident.

There is no question but that the Jack Cole-Dixie Highway Company (appellant’s insured) was the general employer of the decedent. He was a regular truck driver for the company. Usually he was assigned to a unit owned by his father, S. E. Vanat-ta, and operated by the truck line under a “permanent lease” made between it and S. E. Vanatta in August, 1970. A copy of this document is in the record. Under its terms the equipment was placed under the control and direction of the lessee. While the document as filed makes no reference to the compensation to be paid to the owner, the testimony is undisputed that he received forty-six percent of the gross revenue produced by the vehicle while it was being operated on the business of the truck company. The owner was required to bear a number of the operating expenses, upkeep and maintenance on the vehicle. The lease agreement does not purport in any way to make the driver of the equipment an employee of the owner.

It is undisputed between the parties that in the latter part of October, 1971 the decedent was dispatched by the Birmingham office of his employer to take a load of merchandise from Anniston, Alabama to the vicinity of St. Paul, Minnesota. The employer did not have a return load to the southern region. The truck driver thereupon called the Birmingham terminal and requested permission to go to Hammond, Indiana to see if there was a return cargo there. From Hammond, he again telephoned the Birmingham terminal, and reported that there was no return load to the Birmingham area. He then requested permission to “find a load”, and this permission was given. Later the decedent called the Birmingham terminal and advised that he was going to transport a load of tractors for Diamond Transportation System, Inc., and representatives of the employer gave permission for this to be done. The proof shows that at or about the same time several other employees of Jack Cole-Dixie Highway Company likewise transported cargoes for Diamond under “trip leases”.

The authority of the decedent to execute a “trip lease” binding in its consequences upon the employer was the principal issue litigated in the trial court. On behalf of the employer, it was contended that the employee was merely “released” from his permanent and regular employment with Jack Cole-Dixie Highway Company, in order that he might accept temporary employment with Diamond Transportation System, Inc. It is undisputed that on October 29,1971 the employee did execute a trip lease form, showing Diamond Transportation System, Inc., as lessee and Jack Cole-Dixie Highway Company as lessor. The instrument was executed on behalf of the lessor by the decedent himself. The terms and provisions of this lease require the lessor to provide broad indemnity to the lessee, and expressly require the lessor to provide the driver’s salary and workmen’s compensation coverage.

On behalf of the employer it is insisted that the employee had no authority to bind it to provide compensation coverage while under a “trip lease”. The employer’s representatives testified that their interpretation of such a temporary or “spot” lease was that the driver became a temporary employee of the lessee; these witnesses testified that the employee was released from their control, and that the employer received no part of the revenue from the vehicle while it was operated under the temporary leasing arrangement. They testified that all of the revenue went either to the lessee, or to the owner of the equipment, who then made provision out of his share for the payment of the driver.

There is nothing in the written documents filed in the record to indicate what the practice of this particular employer was with regard to “trip leases”, and the revenue to be derived therefrom. An official of Diamond Transportation System, Inc. testified that that company had a different arrangement, and that when its equipment was leased temporarily, it did share in the revenue produced therefrom.

Both of the carriers involved in this case, the general employer and the trip lessee, operated under certificates of convenience and necessity issued by the Interstate Commerce Commission. Certain rules of that Commission have application to the case. There is no question but that pursuant to those rules, insofar as the public was concerned, Diamond Transportation System, Inc. was required to and did assume responsibility for the equipment and the driver until delivery was accomplished. Temporary signs of Diamond were affixed to the vehicle, and Diamond advanced to the truck driver funds for out-of-pocket expenses. The driver was required to furnish to the trip lessee written evidence of his qualifications and physical fitness.

While they denied the resulting legal effect and consequences, at least two representatives of Jack Cole-Dixie Highway Company testified positively that the decedent did have authority to “trip lease” the equipment in question. There is no question but that he requested and was given permission to do so by his superiors. Representatives of the employer testified that they had not seen or examined closely the Diamond trip lease form in the past, but the record contains several other such leases executed on behalf of Jack Cole-Dixie Highway Company by other employees on prior occasions.

The Chancellor concluded, from a close and thorough examination of all of the evidence, that the decedent did have authority to execute the lease and that the employer was bound by its terms. We find material evidence in the record to support these conclusions by the Chancellor, and they are, therefore, binding upon this Court under the rules governing review of workmen’s compensation cases.

It is insisted on behalf of the employer that if the lease document was insufficient to take decedent out of the scope and course of his employment with Jack Cole-Dixie Highway Company, nevertheless that company is entitled to indemnification by Diamond Transportation System, Inc., since the employee was actually engaged in making a delivery for that company at the time of his death. This contention would, of course, have considerable merit, were it not for the terms and conditions of the trip lease itself, which cast the burden of indemnification and compensation upon the lessor.

The employer relies heavily upon the case of Herron v. Fletcher, 503 S.W.2d 84 (Tenn.1973), in which the general lessee was held not to be liable, and workmen’s compensation benefits were adjudged against the owner of the equipment and the trip lessee. In that case, however, the trial court found as a fact that the employee was not authorized to sign the trip lease agreement for the permanent lessee, and that the agreement was actually for the benefit of the owner of the equipment.

It is sufficient to state that in the present case the trial court has reached contrary conclusions upon the evidence before him, and that there is material evidence to support his findings. There was probably sufficient evidence in the present record to justify a finding that the employee was entitled to compensation benefits both from the general employer and from the trip lessee, but the trial court saw fit to allow recovery only against the former.

It is undisputed in the present record that trip leasing is a practice widely followed in the motor carrier industry. There have been a large number of reported cases, both state and federal, upon the consequences attaching to this practice. A substantial number of federal courts had concluded, prior to 1975, that some of the terms and provisions of standard trip leases were contrary to the Interstate Commerce Commission regulations and to public policy. An examination of these cases indicates that generally, under such documents, the lessor is required to hold the lessee harmless from most of the consequences of the conduct of the truck driver, as well as to bear all responsibility for injuries to the driver during the execution of the trip lease. A number of courts had concluded that these provisions were contrary to the requirements of the Interstate Commerce Commission that the certificated carrier using the equipment must assume responsibility for the equipment and safe delivery of the cargo. A substantial split of authority developed among the several United States courts of appeals. The United States Supreme Court granted certiorari in one of the cases, Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., 423 U.S. 28, 96 S.Ct. 229, 46 L.Ed.2d 169 (1975), and in its opinion it cited and discussed the cases decided by the lower courts.

The Supreme Court upheld the validity of indemnification provisions contained in trip leases such as that involved here. In that case the trip lessee had settled a substantial personal injury claim with a third person who was injured by the negligence of the truck driver. It then sought indemnification from the lessor pursuant to the terms of the trip lease. The trial court denied recovery, and its decision was affirmed by the United States Court of Appeals for the Seventh Circuit, 497 F.2d 926 (1974).

The United States Supreme Court reversed, and held that the indemnification provisions did not contravene public policy or existing regulations of the Interstate Commerce Commission. In concluding its opinion, the Court stated:

“We utter a word of caution: our decision is not to be regarded as an indication that the Commission, if it so chooses upon study of the problem, may not one day regulate or even proscribe indemnification as between lessee and lessor. We merely hold that the present regulations may not be so interpreted.” 423 U.S. at 42, 96 S.Ct. at 236, 46 L.Ed.2d at 179-180.

The United States Court of Appeals for the Sixth Circuit, in the case of Indiana Refrigerator Lines, Inc. v. Dalton, 516 F.2d 795 (1975), reversing the United States District Court for the Middle District of Tennessee, also upheld the hold-harmless provisions of a trip lease, and held the lessor liable to the lessee for theft of the cargo by the driver, after the lessee had indemnified the consignor under its bill of lading.

While in some respects it may seem unjust to require the lessor to bear the expense of a workmen’s compensation claim for a truck driver who is operating under the certificated authority of another, this is a matter which the respective employers may resolve by proper contract provisions under existing federal and state law. T.C.A. § 50-1012 expressly permits different employers to agree among themselves “as to the distribution of the ultimate burden” of workmen’s compensation claims under the law of this state.

The lease form of Diamond Transportation System, Inc. used in the present case appears to be a rather standard one, insofar as an examination of the reported cases upon the subject reveals. The practice of trip leasing being a widespread one in the motor carrier industry, responsible officials authorizing their employees to engage in the practice must be aware of the consequences attaching thereto. Unless and until the Interstate Commerce Commission prohibits the insertion of hold-harmless and indemnification provisions in such leases, employers must protect themselves by limiting the authority of their employees, or else they must accept the consequences of a trip lease executed by an employee who is authorized to affix the signature of a carrier thereto. In the present record there is abundant material evidence to support the finding of the Chancellor that the decedent did have such authority. The employer’s representatives may not have fully understood the legal effects of his making such leases, and may not have intended to confer such authority upon him. If not, however, they failed sufficiently to limit his authority, and the Chancellor correctly concluded that the trip lease was binding according to its terms.

The judgment of the trial court is affirmed at the cost of appellant.

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

      . This company is insured as to its workmen’s compensation liability in Tennessee by appellant Argonaut Insurance Company.

      . 49 CFR § 1057.4, implementing 49 U.S.C. § 304(e).

      . Diamond Transportation System, Inc. is insured in the present case by appellee American Mutual Liability Insurance Company. Neither of the two truck lines was joined as a party, but their interests, insofar as pertinent to this claim, were represented by their respective workmen’s compensation carriers.

      . The United States Supreme Court denied certiorari in this case, 423 U.S. 985, 96 S.Ct. 392, 46 L.Ed.2d 302 (1975), after release of its opinion in Transamerican Freight Lines, Inc., supra.


author: CARNEY, Presiding Judge.

text:
    Robert L. DAVIS et al., Plaintiffs-Appellants, v. The MASON AND DIXON TANK LINES, INC. and Teamsters Local Union No. 549, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    April 1, 1975.
    Certiorari Denied by Supreme Court Sept. 22, 1975.

      Arnett, Draper & Hagood, Knoxville, Kenneth Wright, Wright & Minor, Kings-port, for plaintiffs-appellants.
    John S. McLellan, Edward O. Norris,. James W. Bradford, Jr., Edward L. Tread-way, Hunter, Davis, Norris & Treadway, Kingsport, for defendants-appellees.
   CARNEY, Presiding Judge.

Plaintiffs below, Robert L. Davis, et al, have appealed from a decree of the Chancery Court of Sullivan County dismissing their suit against the defendants, Mason and Dixon Tank Lines, Inc. and Teamsters Local Union No. 549. The plaintiffs, Robert L. Davis, et al, being nine former tank truck drivers and employees of Mason and Dixon Tank Lines, Inc. brought suit for damages against the truck drivers’ local union No. 549 for an alleged breach of the Union’s statutory duty of fair representation toward said plaintiffs. They also sought reinstatement of their jobs with full back pay and other fringe benefits and seniority rights as against their former employer, Mason and Dixon Tank Lines, Inc.

A jury answered nine issues of fact. Most of the answers were favorable to plaintiffs. However, the Chancellor felt that the answer to number nine, favorable to defendants, was determinative of the case and he entered judgment for the defendants.

For many years the plaintiffs had been members in good standing of Teamsters Local Union No. 549 which had functioned as the sole and exclusive bargaining representative of all truck drivers and related employees of Mason and Dixon Tank Lines including the plaintiffs.

Over the years several collective bargaining contracts had been consummated between Mason and Dixon Tank Lines and Local No. 549. The most recent agreement was entered into on February 1, 1966, for a term expiring March 31, 1970. All of the plaintiffs were covered by the terms of this most recent bargaining agreement.

On May 28, 1969, about 11:00 P.M. a temporary work stoppage or strike was called by several of the tank driver employees to protest certain practices of dispatching of tank truck drivers by Mason and Dixon. Picket lines were formed but the strike ended shortly before twelve noon on May 29, 1969. Twelve of the employees, including the nine plaintiffs herein, were discharged by Mason and Dixon Tank Lines.

In accordance with the bargaining agreement, on June 11, 1969, in Dallas, Texas, a hearing was held before the Southern Conference of Teamsters, Tank Lines Grievance Committee, a joint committee of Union and Company representatives, regarding the legality of the discharge of the twelve employees. The twelve employees were represented at the hearing by the President and Business Agent, Secretary-Treasurer and Assistant Business Agent of Defendant Local 549. At the hearing, representatives of the Union testified that the work stoppage was not authorized but was “a wildcat strike.” The Committee reinstated three of the twelve employees to their former jobs.

Plaintiffs then hired private counsel and sought a rehearing before the Grievance Committee without success. They contended that the Union did not represent their cause in good faith; that the Local Union had, in fact, authorized or ratified the strike but testified to the contrary before the Grievance Committee in order to save itself from being liable for damages to Mason and Dixon Truck Lines.

After the Grievance Committee refused to give the plaintiffs their second hearing, the present suits were brought in the Chancery Court of Sullivan County, Tennessee, by the plaintiffs against the Mason and Dixon Tank Lines and the Union for reinstatement, back pay, etc. and for damages for lack of good faith in representation before the Grievance Committee.

The plaintiffs demanded a jury and the Chancellor submitted nine issues to the jury which were answered mostly in favor of the plaintiffs as follows:

“ISSUE No. 1
Was the decision of the Southern Conference of Teamsters Tank Lines Grievance Committee on June 11, 1969, denying complainants’ grievances based on a full and fair hearing in which complainants were fairly represented by the Union?
ISSUE No. 2
Did the defendant local union No. 549 authorize or ratify the strike by plaintiffs?
ISSUE No. 3
Did the defendant, Truck Drivers and Helpers Local No. 549, breach its duty of fair representation to the complainants or any of them?
ISSUE No. 4
If your answer to Issue No. 3 is ‘Yes’, are the complainants or any of them entitled to damages from the defendant, Local 549?
ISSUE No. 5
If your answer to Issue No. 4 is ‘Yes’, what is the amount of damages due each of the plaintiffs from Local 549?
Davis $ 7.500.00
Ketron $11.500.00
Hall $13.000.00
Armstrong $10.000.00
Davenport $ 7.500.00
Brooks $ 2.000.00
Cross $ 2.000.00
Carr $10.500.00
Hicks $13.000.00
ISSUE No. 6
Did the defendant, Mason and Dixon Tank Lines, Inc. wrongfully discharge the complainants or any of them?
ISSUE No. 7
If your answer to Issue No. 6 is ‘Yes’, are the complainants or any of them entitled to be reinstated to their jobs by Mason and Dixon Tank Lines, Inc.?
ISSUE No. 8
If your answer to Issue No. 7 is ‘Yes’, are the complainants or any of them entitled to other contract benefits, and seniority rights?
ISSUE No. 9
Did the complainants engage in strike action against the defendant Tank Lines in violation of Article XV of the labor contract on May 28 and 29,1969?

Thereupon the defendant, Mason and Dixon Tank Lines, Inc., and the defendant, Teamsters Local Union No. 549, filed exceptions to the answers of the jury and made written motions for decrees notwithstanding the answers returned by the jury or in the alternative for new trials.

His Honor the Chancellor adopted the answer of the jury on special issue No. 9 as being a determinative issue of the litigation as to both of the defendants. He concurred in the finding of the jury in its answer to special issue No. 9 and found that the submission to the jury of the other issues was immaterial in the light of the jury’s answer to special issue No. 9.

The Court further found that the defendant, Teamsters Local Union No. 549, prosecuted in good faith the grievances filed by the plaintiffs and that the proceedings and award of the Joint Area Committee were regular, fair, proper and in accordance with the long-standing custom and practice of the Committee. The Court found that the Teamsters were not guilty in fact or law of any breach of duty of fair representation and that the plaintiffs and each of them did engage in an unlawful strike in violation of Article XV (the no strike clause) of the contract for which they were lawfully and properly discharged from their employment. Thereupon, the Court dismissed plaintiffs’ suits against all defendants. He also dismissed cross-actions by Mason and Dixon Tank Lines against the original plaintiffs. There is no appeal by defendant Mason and Dixon Tank Lines, Inc.

Plaintiffs’ suits are under the authority of the Federal Labor Management Relations Act, 29 U.S.C.A. 141, et seq. (Taft-Hartley Act). The State Courts have concurrent jurisdiction with the Federal Courts in enforcing collective bargaining agreements but Federal law prevails in substantive interpretation of labor contracts. Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962); Dowd Box Co. v. Courtney (1962), 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483.

Plaintiffs seek damages against the defendant Union for alleged breach of its statutory duty of fair representation of the plaintiff members before the Grievance Committee. They seek reinstatement with pay and/or damages against the defendant, Mason and Dixon Tank Lines, Inc., employer, alleging they were illegally and wrongfully discharged from employment.

Article XV of the Collective Bargaining Agreement provides as follows:

“No strikes — No lockouts. No strikes, lockouts, walkouts, or slowdowns shall be ordered, sanctioned or enforced by either party hereto against the other during the life of this Agreement, except for failure of either party to abide by the decision of the grievance procedure pursuant to Article V (Grievance Machinery). The union further agrees that in the event of violation of the terms of this article, the employer may take disciplinary action, including discharge, against any employee who takes part therein.”

A Grievance Committee, a Chancery Court jury of twelve citizens and a Chancellor have all found that the nine plaintiffs, appellants herein, did engage in a wildcat strike in violation of Article XV of the Collective Bargaining Agreement. Therefore, we hold that His Honor the Chancellor correctly held that the jury’s finding on Issue No. 9 was determinative of the appellants’ cause of action against the employer, Mason and Dixon. His Honor the Chancellor did not err in setting aside or disregarding the verdict of the jury as to the first eight findings of the jury insofar as they related to Mason and Dixon Lines, Inc. The Chancellor correctly dismissed the plaintiffs’ lawsuit against Mason and Dixon Tank Lines, Inc. because Mason and Dixon Tank Lines, Inc. had a right to discharge the plaintiffs for said illegal strike activities. Local 342, United Auto Workers v. T. R. W., Inc., 402 F.2d 727 (Sixth Circuit), certiorari denied, 395 U.S. 910, 89 S.Ct. 1742, 23 L.Ed.2d 223 (1968).

All of the assignments of error of the appellants as they relate to the appellee, Mason and Dixon Tank Lines, Inc., are overruled and the judgment of the lower Court affirmed. See Bauman v. Smith (1972), Tenn.App., 499 S.W.2d 935.

The evidence of the plaintiffs against the Union before the jury was as follows: that the wildcat strike was authorized and/or ratified by the officials of the defendant Union; that defendant Mason and Dixon Tank Lines, Inc. filed unfair charges of labor practices against the defendant Local 549 with the National Labor Relations Board averring that Local 549 authorized the work stoppage; that some of the plaintiffs were persuaded by officials of the defendant Union to perjure themselves and to make statements under oath to investigators of the N.L.R.B. that the officials of the Union did not authorize or ratify such wildcat strike; that based on sworn statements of some of the plaintiffs the N.L.R.B. ceased its investigations and Mason and Dixon Tank Lines, Inc. dropped its charges of unfair labor practices against the defendant Local Union 549; that the officials of the defendant Union promised that all of the plaintiffs would be reinstated to their jobs in consideration of the false swearing; that upon the hearing before the Grievance Committee, some of the plaintiffs admitted their perjury but officials of the defendant Union denied authorizing or ratifying the wildcat strike and denied asking the plaintiffs, or some of them, to perjure themselves; that the grievances of the plaintiffs were not properly prosecuted by the Union as exclusive bargaining agent; that little or no preparations were made for the hearing before the Grievance Committee and that the plaintiffs did not have a full and fair hearing before the Grievance Committee in Dallas, Texas.

While some of the questions presented to the jury involved mixed questions of law and fact, the jury found the sharply disputed issues of fact in favor of the plaintiffs, to-wit, that the defendant Local Union No. 549 authorized or ratified the wildcat strike by the plaintiffs; that the defendant Local Union did breach its duty of fair representation to the plaintiffs and that the plaintiffs were not fairly represented by the Union before the Grievance Committee.

The duty of the Union for fair representation of all of its members is enunciated in the cases of Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); and Griffin v. International Union, United Auto Workers, 469 F.2d 181, 182 (Fourth Circuit, 1972).

In our opinion the answer of the jury to question No. 9 that plaintiffs engaged in a wildcat strike is not determinative of the liability of the defendant Union to the plaintiffs. Such holding by the Chancellor is reversed. We respectfully disagree with counsel for defendant Union that the ruling of Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 354 S.W.2d 464 (1962), relating to special verdicts supports the Chancellor’s dismissal of the defendant Local Union.

Upon the trial below plaintiff was granted a jury trial under the authority of T.C.A. Section 21-1011, et seq. We sustain the assignments of error of the plaintiffs insofar as they relate to the answers of the jury on questions one, two, three, four and five. We hold that there was competent material evidence to support the finding of the jury on each of these issues and the findings of the jury had the same force and effect as in jury trials at law. T.C.A. Section 21 — 1016; Davis, et al. v. Mitchell, et al., 27 Tenn.App. 182, 178 S.W.2d 889; and James v. Brooks, et al., 53 Tenn. 150, 156 (1870).

His Honor the Chancellor was required either to approve these findings of the jury and award judgment against the defendant Union or if he disapproved of the findings of the jury, he could only set them aside and grant the defendant Union a new trial as in law cases.

The judgment in favor of such defendant Local No. 549 is reversed. The cause is remanded to the lower Court for a new trial on all issues between the plaintiffs and the defendant Local No. 549. The defendant Local No. 549 is taxed with the costs of this appeal. The costs in the lower Court, both in the first trial and upon the remand will be taxed by His Honor the Chancellor.

MATHERNE and NEARN, JJ., concur.


author: NEARN, Judge.

text:
    Richard C. BREAKSTONE and wife, Dorothy Breakstone, Appellants-Appellees (Cross Appeal), v. HOME FEDERAL SAVINGS AND LOAN ASSOCIATION, a corporation, Appellee-Appellant.
    Court of Appeals of Tennessee, Western Section.
    March 26, 1976.
    Certiorari Denied by Supreme Court July 26, 1976.
    John C. Robertson, Memphis, for appellants-appellees.
    John R. Dunlap, T. F. Jackson, III, Memphis, for appellee-appellant.
   NEARN, Judge.

The Chancellor granted a discretionary appeal pursuant to T.C.A. § 27-305 from an interlocutory order overruling defendant’s motion for summary judgment. Both sides to the controversy have appealed. The defendant claims error in the Chancellor overruling the motion. The plaintiffs say the Chancellor reached the correct results, but on faulty reasoning.

As is within our discretion we decline to accept this appeal. See T.C.A. § 27-305; Tennessee Department of Mental Health and Mental Retardation, et al v. Lowell Paul Hughes, Tenn., 531 S.W.2d 299, Supreme Court Opinion filed at Nashville on December 30, 1975, marked “For Publication.”

In Ratliff v. Hinman, et al filed in this Court on February 16, 1976, we stated:

“_In the exercise of our discretion in accepting or rejecting an appeal under T.C.A. § 27-305, we are mindful that the true issues are the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice on the other. Where the ruling of the trial judge is that the parties go to trial because of the existence of a genuine issue as to material facts, the danger of denying justice is removed. Only under the most extraordinary and compelling circumstances could we hold that the possible reduction in time and expense of trial would justify a review of that decision. The present lawsuit does not present those extraordinary circumstances, and we will not accept this appeal.”

As found in Ratliff, supra, we also here find that “The present lawsuit does not present those extraordinary circumstances, and we will not accept this appeal.”

The cause is remanded to the Chancery Court of Shelby County, Tennessee for further proceedings. Costs of appeal are adjudged equally against the parties and costs below will await the outcome of the trial.

CARNEY, P. J., and MATHERNE, J., concur.


author: DUNCAN, Judge.

text:
    Henry COLE, Jr., Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Jan. 6, 1976.
    Certiorari Denied by Supreme Court June 1, 1976.

      Walker, Gwinn, Asst. Public Defender, Memphis, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., W. Fred Ax-ley, Asst. Dist. Atty. Gen., Memphis, for defendant in error.
   OPINION

DUNCAN, Judge.

The defendant, Henry Cole, Jr., was convicted of assault with intent to commit robbery by the use of a deadly weapon and received a penitentiary sentence of not less than 8 years nor more than 20 years. (T.C.A. § 39-607). He was also convicted of employing a firearm in the commission of a felony, for which offense he received a penitentiary sentence of not less than 1 year nor more than 3 years. (T.C.A. § 39-4914). Additionally, he was convicted of carrying a pistol with the intent to go armed and was sentenced to the workhouse for 11 months and 29 days and a $50.00 fine. (T.C.A. § 39-4901). The sentences were ordered to be served consecutively.

In his assignments of error, the defendant questions the sufficiency of the evidence and additionally complains that the court erred in allowing all three convictions to stand, contending that this was one criminal episode and that essentially the same evidence was necessary to convict for each crime. This latter complaint was not expressly set out in the motion for a new trial, but is implicit in the assignments on the evidence; therefore, we shall consider it along with the assignments on the evidence.

The State’s proof showed that on May 4, 1974, Officer J. D. Mattox of the Memphis Police Department Vice Squad, was walking on the sidewalk of a downtown Memphis street, dressed in plain clothes. The defendant, accompanied by four other persons, drove up in an automobile, stopped and called the officer over to the car. The defendant held a pistol on Officer Mattox and said to him, “Give me your money.” The officer pulled his own pistol, at which time the defendant told the driver of the car to “step on the gas.” As the defendant was attempting to flee, the officer shot out one of the tires. The car stopped and the occupants got out of the vehicle. As the defendant was getting out of the car, he reached back into the automobile toward the floorboard. After a struggle, the defendant was taken into custody. The pistol was found on the floorboard of the car and the officer identified it as the one which the defendant used in this attempted robbery. Another officer, Sgt. M. K. Crawford, was working with Officer Mattox on this particular night and was in a police cruiser nearby. He saw the car pull up to Officer Mattox, saw it surge forward and heard a shot. Arriving immediately on the scene, he aided in the apprehension of the defendant. He saw what appeared to be a pistol on the floorboard of the car and as the defendant reached in that direction, the officer hit him with his service revolver. Sgt. Crawford recovered the loaded pistol from the car.

The defendant testified and denied that he pulled a gun on the officer and denied any attempt to rob him. He testified that the officer motioned for the car to stop; that the officer came over to the car; and that the officer pulled out a pistol and put it in his face. The defendant denied he ever had a pistol in his hand. The defendant was supported in his testimony by two of the passengers in the vehicle.

The jury accredited the testimony of the State’s witnesses and from our summary of the proof above, we are of the opinion that the evidence is sufficient to support the verdicts. The evidence does not preponderate against the verdicts and in favor of the defendant’s innocence. Gulley v. State, 219 Tenn. 114, 407 S.W.2d 186 (1966).

While we hold that the evidence is sufficient to support the defendant’s conviction as to each of these offenses, we must go further and decide whether all of these convictions can stand. We view this question as the main issue to be decided in this case.

As we view it, the offense of an assault with intent to commit robbery by means of a deadly weapon and the offense of carrying a pistol for the purpose of going armed are distinct and separate offenses, and a conviction for one would not necessarily bar a conviction for the other. From the proof in this case, the offense of carrying a pistol for the purpose of going armed was completed before it was ever used in the attempted robbery. The gun was loaded, and obviously had to be carried by the defendant in the automobile to the scene of this difficulty.

In Grindstaff v. State, 172 Tenn. 77, 81, 110 S.W.2d 309, 310 (1937), our Supreme Court upheld the defendant’s conviction for carrying a pistol, even though he had previously been tried and convicted of involuntary manslaughter growing out of the killing in which the pistol had been used. The court said:

“Defendant, under the indictment charging him with the murder of Love Wilson, could not have been convicted of the offense of carrying a pistol. The unlawful carrying of dangerous weapons (Code, § 11007) [now T.C.A. § 39-4901] is an offense of a different nature from any of the degrees of offense for which conviction may be had under an indictment charging murder, and is not one necessarily included in such charge. Defendant’s conviction for the killing of Love Wilson did not bar a prosecution for carrying the pistol with which the killing was done.”

Again, in Taylor v. State, 520 S.W.2d 370 (Tenn.Cr.App.1974), the defendant was found guilty of carrying a pistol even though he had been acquitted of murder in the use of such pistol. The court said:

“By the defendant’s testimony he carried the pistol that day to protect himself, that is, to go armed. It is no defense that a defendant has armed himself solely for the purpose of self-defense. Coffee v. State, 72 Tenn. 245.”

By the express terms of the statute in question (T.C.A. § 39-4901), the offense proscribed is carrying a pistol or revolver or other specified weapon with intent to go armed. That is the gravamen of the offense. Without the intent or purpose of being or going armed, the offense described in this statute cannot be committed. Liming v. State, 220 Tenn. 371, 417 S.W.2d 769 (1967). It is necessary in such cases for the State to prove the accused’s intent and purpose in carrying the weapon was to be and go armed, because the mere act of doing so may be lawful and does not establish criminal intent and does not create a presumption of guilt and does not deprive him of his presumption of innocence. Liming v. State, supra.

However, the necessary intent to support a conviction for carrying a weapon with the intent to go armed may be proved by the circumstances surrounding the carrying of the weapon. As the court stated in Hill v. State, 201 Tenn. 299, 298 S.W.2d 799 (1957), “We gather the purpose of going armed from the facts of each particular case.”

Based on the facts and circumstances in the present case, the jury was well warranted in finding that the defendant was carrying the pistol with the intent to go armed. The fact that the defendant decided to use the pistol in this attempted robbery cannot serve as a means to a defense in this case.

Next, we are of the opinion that in this case the offense of employing a firearm in the commission of a felony merged with the offense of assault with intent to commit robbery by means of a deadly weapon.

The punishment fixed by the legislature for an assault with intent to commit a robbery is imprisonment for not less than three years nor more than fifteen years. If the offense was accomplished by means of a deadly weapon, the punishment is enhanced to imprisonment for not less than five years nor more than twenty-one years. (T.C.A. § 39-607). Here, our legislature has acted in a special way by providing an enhanced punishment for one who is guilty of armed assault with intent to rob. Our legislature has specially treated other offenses, such as armed robbery (T.C.A. § 39-3901), and burglary while in the possession of a firearm (T.C.A. §§ 39-901, 39-903, 39-904), in a similar manner.

T.C.A. § 39 — 4914 provides, in part, that one who “employs any firearm of any character as a means of committing or escaping from a felony is guilty of a felony,” and that section further provides that an offender shall receive enhanced punishment over and above the punishment meted out for the felony committed. Under this statute, it is clear that our legislature has acted in a general way in providing additional punishment for one who uses one type of deadly weapon, to-wit: a firearm, in the commission of felonies in general.

Thus, we can readily see that there is an inconsistency in the two statutes, and under our law when this situation presents itself, that statute which deals with the subject matter in a minute and particular way will prevail over one of a more general nature. Board of Park Commissioners v. Nashville, 134 Tenn. 612, 630, 185 S.W. 694, 698 (1915). In that case, Chief Justice Neil, writing for the court, said:

“Where there is a general provision applicable to a multitude of subjects, and also a provision which is particular and applicable to one of these subjects, and inconsistent with the general provisions, it does not necessarily follow that they are so inconsistent that they both cannot stand. The special provision will be deemed an exception, and the general provision will be construed to operate on all the subjects introduced therein except the particular one which is the subject of the special provision.”

This principle of law has been repeatedly applied by our Supreme Court. State v. Safley, 172 Tenn. 385, 112 S.W.2d 831 (1938); Woodroof v. City of Nashville, 183 Tenn. 483, 192 S.W.2d 1013 (1946); Koella v. State, 218 Tenn. 629, 405 S.W.2d 184 (1966).

As noted in State v. Safley, supra, the reason and philosophy of the rule is that where the mind of the legislature has been turned to the details of a subject and they have acted upon it, a statute treating the subject in a general manner should not be considered as intended to affect the more particular provision.

In reviewing similar statutes in other jurisdictions and case holdings relating thereto, we find that a general pattern seems to be developing that enhanced punishment for the use of a weapon in the commission of a felony is not allowed in those cases where the use of such weapon is an element of the basic offense.

Section 12022 of the California Penal Code provides for an additional period of imprisonment upon conviction of a felony while armed with a deadly weapon. In People v. Floyd, 71 Cal.2d 879, 80 Cal.Rptr. 22, 457 P.2d 862 (1969), the California Supreme Court held that this section did not apply where a deadly weapon is an essential element of the basic crime.

After the Floyd decision, the California Legislature enacted a statute which provided for an additional period of imprisonment upon conviction for the commission or attempted commission of certain specifically enumerated felonies — robbery, assault with a deadly weapon, murder, rape, burglary, or kidnapping — where a firearm had been used in its commission or attempted commission. This statute has a specific clause which provides, “This section shall apply even in those cases where the use of a weapon is an element of the offense.” California Penal Code § 12022.5.

Therefore, by reason of this later statute, California now has held that punishment may be imposed for using a firearm in the commission of any one of the six enumerated felonies — armed robbery being one of them — in addition to the punishment given for the basic offense. People v. Belcher, 11 Cal.3d 91, 113 Cal.Rptr. 1, 520 P.2d 385 (1974).

Tennessee’s statute on this subject, T.C.A. § 39-4914, has no language comparable to the new California statute which applies the increased punishment even in those cases where the use of a weapon is an element of the offense. Thus, our situation in Tennessee is similar to that which confronted the California court at the time of People v. Floyd, supra.

Missouri has a statute more comparable to the Tennessee statute, i. e., it does not enumerate certain felonies as California has now done. Section 556.140 of Vernon’s Annotated Missouri Statutes provides, in part, as follows:

“If any person shall be convicted of committing a felony, or attempting to commit a felony, while armed with a pistol or any deadly weapon the punishment elsewhere prescribed for said offense in the statutes and laws of the state of Missouri for the felony of which he is convicted shall be increased by the trial judge by imprisonment in the state penitentiary for two years.”

The Supreme Court of Missouri has held that the enhanced punishment provisions of the above section cannot be applied in a case where the basic offense was robbery by the means of a deadly weapon. State v. Harris, 337 Mo. 1052, 87 S.W.2d 1026 (1935); State v. Carter, 443 S.W.2d 176 (Mo.1969).

We would note that in State v. Harris, supra, the Missouri court reached its conclusion by reasoning that the special statute providing an enhanced penalty for armed robbery controlled over the general statute providing for an enhanced penalty for one committing a felony while armed with a pistol or any deadly weapon. We have previously set forth the Tennessee law, documented by several Tennessee cases, to the same effect.

Section 26-9908a of the Georgia Code Annotated provides, in part:

“Any person who shall have on his person a firearm or a knife having a blade of three or more inches in length during the commission of, or the attempt to commit, any crime against or involving the person of another, the unlawful entry into a building or vehicle or a theft from a building or theft of a vehicle and which crime is a felony shall be guilty of a felony and, upon conviction thereof, shall be punished by confinement and labor in the penitentiary for a period of not less than one nor more than five years.

The Supreme Court of Georgia, in Roberts v. State, 228 Ga. 298, 185 S.E.2d 385 (1971), held that the punishment provided by the above statute could not be inflicted in a case where the evidence showed that the defendant was guilty of armed robbery, which robbery was committed with the same firearm as that for the possession of which the defendant was also tried. In this case, the court said:

“As to the separate crime of possession of a firearm during the commission of, or attempt to commit a crime, this also may or may not be included in the greater crime. In the case sub judice where the evidence disclosed that the crime of armed robbery was committed with the same firearm as that for the possession of which the defendant was tried, the lesser crime, possessing the firearm, was included in the greater crime of armed robbery.”

Obviously, the legislative purpose in the enactment of the two Tennessee statutes, which we now have under consideration, was to prevent the kind and character of violence which often attends the use of a deadly weapon in the perpetration of a crime.

In Burgin v. State, 217 Tenn. 682, 687, 400 S.W.2d 539, 541 (1956), the Supreme Court, in discussing the legislative purpose in enacting the enhanced penalty provisions of the robbery statute for the commission of a robbery by the use of a deadly weapon, said:

“This purpose was to prevent the kind and character of violence which often attends the use of a deadly weapon in the perpetration of a robbery. It is just this sort of violence which is found in the present case.”

The same rationale would apply to both of the statutes with which we are now concerning ourselves.

T.C.A. § 39-607 already has provided enhanced punishment for one who commits an assault with intent to commit robbery by means of a deadly weapon. We do not think it was the intent of the legislature, by the enactment of T.C.A. § 39-4914, to provide enhanced punishment for those offenses where provisions for enhanced punishment had already been provided. To adopt a contrary view, we would be faced with an illogical situation, in that we would be adding enhanced punishment to an offense, which already carried enhanced punishment.

For the reasons stated, we hold that the offense of employing a firearm in the commission of a felony merged into the offense of assault with intent to commit robbery by means of a deadly weapon; accordingly, we reverse and vacate the defendant’s conviction for that offense. We affirm his convictions for an assault with intent to commit robbery by means of a deadly weapon and carrying a pistol with the intent to go armed.

WALKER, P. J., and RUSSELL, J., concur.


author: WALKER, Presiding Judge.

text:
    Hassell CHERRY, Jr., Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    March 4, 1976.
    Certiorari Denied by Supreme Court June 1, 1976.

      Jennings B. Meredith, Oak Ridge, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Richard Lodge, Asst. Atty. Gen., Nashville, James B. Scott, Jr., Dist. Atty. Gen., Clinton, for defendant-in-error.
   OPINION

WALKER, Presiding Judge.

The defendant below, Hassell Cherry, was convicted in Anderson County of (1) kidnapping and sentenced to four to ten years in the penitentiary and (2) assault and battery with intent to commit rape and sentenced to six to twelve years in the penitentiary. The trial judge ordered the sentences to be served concurrently. He directed a verdict for the defendant in a charge of robbery heard at the same time.

On his appeal in error the defendant first says the court erred in overruling his plea in abatement. In addition to the kidnapping charge, he was first indicted for assault with intent to commit rape. An order nolle prosequi was entered as to that indictment and at the next term of court the grand jury indicted him for assault and battery with intent to commit rape. The defendant cites no authority to support his claim that this procedure was vexatious and oppressive. The assignment is without merit.

The state’s evidence showed that on November 2, 1974, Connie Burris, then 16 years of age, left Walgreen’s store in Oak Ridge and seated herself in her automobile when the defendant approached her with an open knife and ordered her to get over. He took the driver’s seat and drove into the country, telling her he was going to make love to her, rape, kill her and throw her from a bridge. Several times he put the knife to her throat and said he was going to rape and kill her. Frightened at his threats, Miss Burris jumped from the car when the defendant slowed at an intersection. From there she was taken to a hospital but was not seriously injured.

The next day, on learning that officers were looking for him, the defendant went to the police station and gave a written statement saying that he followed Miss Burris to her car; that he had his knife out and asked her to move over; that he put his knife up and thought he was driving home but he was drunk and was driving in the wrong direction; that he slowed for a caution light and Miss Burris jumped out. He then parked the car and went to sleep in the woods.

The defendant had been buying beer that evening in Walgreen’s and a few minutes before this incident he had told a woman cashier there that he wanted sexual intercourse with her and he exposed himself to her.

The defendant offered evidence that he was intoxicated that day and had been sent home by his employer for that reason. In his testimony he said he was drinking beer and also took some pills that day. He said he had a closed knife in his hand when he told Miss Burris to move over; that he wanted to go to his mother’s home near Knoxville. He said he put his knife away and he was about three miles from his mother’s home when Miss Burris jumped from the car at a caution light. He then went in the woods and went to sleep rather than continue to his mother’s home. By his testimony he did not touch Miss Burris and did not intend to harm her.

This evidence supports both the conviction of kidnapping and assault and battery with intent to rape. The elements of kidnapping as defined by TCA 39-2601 are shown here. See Cowan v. State, 208 Tenn. 512, 347 S.W.2d 37; McCracken v. State, Tenn.Cr.App., 489 S.W.2d 48. The defendant touched Miss Burris with the knife, pulled her to him and, using vile language, told her he intended to rape and kill her. The jury was warranted in believing her escape prevented his intention to rape her. See Patterson v. State, 218 Tenn. 80, 400 S.W.2d 743. The assignments on the weight and sufficiency of the evidence are overruled.

The defendant contends that both convictions cannot stand. He relies on Acres v. State, Tenn., 484 S.W.2d 534, for the proposition that the two crimes were part of a single continuing act inspired by the same criminal intent and were susceptible to but one punishment.

Although these offenses occurred in a single criminal episode, under the rules laid down in State v. Black, Tenn., 524 S.W.2d 913 (1975), they are not identical offenses and different evidence is required to prove each offense. Kidnapping requires asportation which is not found in assault and battery with intent to commit rape. Both convictions can stand under these principles. This assignment is meritless.

The defendant complains of the admission into evidence of his conduct in exposing himself to the cashier at Walgreen’s shortly before these offenses. This evidence was admissible on the issue of his intent. See Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523.

The defendant challenges the admissibility of his statement. In a hearing out of the presence of the jury, the officers testified they gave the defendant proper warnings and he voluntarily made the statement to them. The defendant testified he was not warned until after he had made the statement. The trial judge accepted the officers’ testimony on this issue and the evidence does not preponderate against his finding. His testimony before the jury is essentially that of his statement.

We find no prejudice in the judge’s remarks in holding the statement admissible that the defendant was aware of his rights and understood them even before being advised of them.

The defendant says the court erred in its instructions to the jury that voluntary intoxication will not mitigate and cannot be invoked as a defense to the crime of assault and battery with intent to commit rape. He offered no special request on this issue. Although he was drinking beer, by his testimony he remembers in detail his acts and conversation on this occasion.

In Walden v. State, 178 Tenn. 71, 156 S.W.2d 385, our Supreme Court held that in the crime of rape no intent is requisite other than that evidenced by the doing of the acts constituting the offense. See Steele v. State, 189 Tenn. 424, 225 S.W.2d 260; Harris v. State, 206 Tenn. 276, 332 S.W.2d 675. In the light of these authorities, we hold the instructions on this question were adequate in this case.

The defendant says the court erred by refusing to permit him to present evidence to the jury and in refusing to allow argument on it. He wanted to present to the jury the original indictment charging assault with intent to commit rape rather than assault and battery with intent to commit rape. By this he sought to show that Miss Burris had changed her testimony on the question of a battery. The first indictment had been dismissed. The defendant was given the opportunity on cross-examination of Miss Burris to show any inconsistent statements. She did not draw the indictment and the court did not err in refusing to permit it to be presented to the jury.

All assignments are overruled and the judgment is affirmed.

DUNCAN, J., and JAMES C. BEASLEY, Special Judge, concur.


author: O’BRIEN, Judge.

text:
    Robert Edward MALLICOAT, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    March 29, 1976.
    Certiorari Denied by Supreme Court June 1, 1976.

      Robert L. Tucker and Donald Donati, Legal Clinic, Knoxville, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., William L. Waters, Asst. Dist. Atty. Gen., Knoxville, for defendant in error.
   O’BRIEN, Judge.

OPINION

Defendant was convicted of contributing to the delinquency of a minor and sentenced to eleven months and twenty-nine days in the Knox County Penal Farm.

Several assignments of error are made. The State calls to our attention that three of these assignments were not stated in defendant’s motion for new trial and, for that reason, may not be raised on appeal, under the authority of Pruitt v. State, 3 Tenn.Cr.App. 256, 460 S.W.2d 385. In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings. Manning v. State, 500 S.W.2d 913, (Tenn., 1973).

Having examined the assignments, we do not find these matters, assigned as error, to have contributed in any way to a denial of a fair trial to defendant.

The trial court overruled the motion to strike the word “alias” from the indictment on a finding that no criminality applied.

Where no proof is offered of use of an alias by an accused it should not be included in an indictment. See U. S. v. Wilkerson, 456 F.2d 57 (6th Cir. 1972). Under the circumstances of this case we do not consider it grounds for reversal.

Defendant says the trial court erred in failing to strike the comments of State’s counsel during closing argument to the effect that the defense could have called a co-defendant to testify. The case of the co-defendant was severed on motion of this defendant. The State declined to call this person as a witness. The comments of the district attorney general in closing argument referred as much to the State’s decision to not call the witness as it may have to any inaction by defendant. The tenor of the objection of defense counsel was that he wanted the jury instructed in accordance with the American Bar Association Standards for Criminal Justice relating to Standards on Defense Functions, Sec. 7.6(c). This section applies generally to the examination of witnesses and we think his honor would have been in error to instruct the jury that defense counsel was precluded from calling the co-defendant to testify under the aegis of these standards. Defendant says it was error to deny a requested special instruction. This issue was not raised on motion for new trial. Neither the special instruction nor the trial court’s general charge to the jury have been included in the Bill of Exception.

Defendant says it was error for the trial court to refuse to designate the co-defendant in this case as a hostile witness or in the alternative to call her as a court’s witness.

It was argued for defendant that he was denied the right of confrontation because the testimony of this witness could have been extremely adverse to him, therefor, she should have been declared a hostile witness or a court’s witness so that under the law he would not be required to vouch for her credibility, or be prevented from impeaching her testimony.

The trial court declined to take the action requested in the absence of some showing of hostility. This decision was correct. Defendant is entitled to a fair trial, however, this does not mean he is entitled in the first instance to refuse to put on a witness and in the second, have the benefit of error, because of the unavailability of her testimony. The complaint that the witness could not be impeached is not well taken. See Mays v. State, 495 S.W.2d 833, (Tenn.Cr.App.1972). The assignments are overruled.

Defendant cites error on denial of a motion for judgment of acquittal at the close of the State’s proof on the theory that the State failed to prove the elements of the crime.

We are satisfied that the evidence was sufficient to take the case to the jury. Lavvorn v. State, 215 Tenn. 659, 389 S.W.2d 252; Birdsell v. State, 205 Tenn. 631, 330 S.W.2d 1. This court will not interfere with the discretionary authority of a trial judge in respect to whether evidence is sufficient to warrant conviction unless a clear abuse of that discretion can be found on review. Carmon v. State, 512 S.W.2d 595 (Tenn.Cr.App.1974).

Defendant says the trial court should not have limited the admission of defense evidence which was relevant to negate criminal intent.

Defendant called his sister who testified she had known the co-defendant for six years. At this point the State objected to the relevancy of her acquaintance with the co-defendant. The issue was argued out of the presence of the jury. Defendant’s argument seems to be he was entitled to show the relationship between his co-defendant and him over the previous six years prior to his arrest, for the purpose of showing his state of mind when he, according to the evidence, was endeavoring to induce a seventeen year old girl to pose for photographs in the nude. The defense examination of the witness was limited to events immediately preceding his arrest. The defendant himself testified that on the day prior to the date the offense occurred, his co-defendant contacted him and asked him to take some photographs for her, saying if he refused some harm might come to his minor daughter and son. He kept the rendezvous for the purpose of protecting his family. He feared his co-defendant because she had been harassing him for six years.

Defendant's contentions are not in accord with the law on the subject. Authorities on the issue are sparse in this State, however, the statement made in Leach v. State, 99 Tenn. 584, 42 S.W. 195 (1897) is more adequately pointed out in the general texts on the subject. In 21 Am.Jur.2d, Criminal Law, Sec. 100, it is stated in this way:

“Though coercion does not excuse taking the life of an innocent person, it does excuse most, if not all, other offenses. In order to constitute a defense, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. Apprehension of loss of property, or of slight or remote personal injury, is no excuse. Furthermore, the danger must be continuous throughout the time when the act is being committed and must be one from which the defendant cannot withdraw in safety. The doctrine of coercion or duress cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. And threat or fear of future injury is not sufficient.”

An almost identical statement is found in 22 C.J.S. Criminal Law, § 44:

“While the rule has no application in the case of homicide, and compulsion cannot excuse taking the life of an innocent man . in general an act which would otherwise constitute a crime may be excused on the ground that it was done under compulsion or duress, since the necessary ingredient of intention . is then lacking.
The compulsion or coercion which will excuse the commission of a criminal act must be present, imminent, and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done; it must be continuous, and there must be no reasonable opportunity to escape the compulsion without committing the crime. A threat of future injury is not enough, particularly after danger from the threat has passed. . . .”

The complaint cannot be sustained that introduction of mitigating evidence relevant to sentencing should have been allowed

It is argued that defendant should have been allowed to introduce evidence on the pattern of harassment by his co-defendant. We have heretofore discussed this issue fully and found it to be without merit. Defendant included in his motion for new trial an application for a post trial hearing to consider pronouncement of judgment and sentence. He contends the trial court may modify the initial judgment of the jury under the provisions of T.C.A. Sec. 40 — 2701. There is nothing to be found in this statute to support this view. He further says the trial judge did not comply with the prayer made in a motion for probation and thus precluded the introduction of mitigating evidence relevant to sentencing which constituted a denial of the due process right to be heard.

T.C.A. Sec. 40-2904, cited by defendant, places the power of suspension and probation within the discretionary authority of the trial judge. The technical record discloses that an application for probation was heard, and denied because defendant was found not qualified for probation. The discretionary authority of the trial judge to grant or deny parole is subject to review in the appellate courts. Stiller v. State, 516 S.W.2d 617, (Tenn.1975), however we find nothing in this record to indicate any abuse of discretion on the part of the trial judge in denying probation. The assignment is overruled.

The judgment of the trial court is affirmed.

RUSSELL and DWYER, JJ., concur.


author: RUSSELL, Judge.

text:
    James Kenneth HICKS, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    March 30, 1976.
    Certiorari Denied by Supreme Court June 7, 1976.
    W. Howell Forrester, Pulaski, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, Robert H. Gay, Dist. Atty. Gen., Lawrenceburg, for defendant-in-error.
   OPINION

RUSSELL, Judge.

James Kenneth Hicks appeals his sodomy conviction and five year penitentiary sentence. The alleged crime against nature was copulation per anus committed upon another inmate of the Giles County Jail. The State’s case is made out by the testimony of the victim, Dennis Miller, and two other inmate witnesses. The defendant admits whipping Miller with a belt, threatening to commit the offense upon him, having Miller upon his (Hicks’) bunk at the time that others say the offense occurred, but denies the offense.

Error is assigned “because the verdict of the jury is so totally unrealistic as to indicate passion, prejudice and caprice”. We find that the evidence is legally sufficient, and quite convincing. While there were discrepancies of detail, the fundamental facts were well established.

Complaint is made that the witness, Charles Black, was allowed to testify about statements made by the victim, Miller, to the county road crew, when the defendant was not present. The court permitted Black, who was also an inmate, to testify that on the day following the alleged sodomy that he asked Miller what was wrong with him and Miller replied, “Them boys raped me in jail” and “They raped me in jail the other night”. Also present was a Mr. Gordon, apparently a supervisor over the county convict road crew. Miller testified that he did not sound the alarm at the time of the attack upon his body because he physically could not, and was also later threatened with death if he told. The complained-of report the following day, at what might be characterized as his first real opportunity to freely report the attack, is admissible in corroboration of his testimony, just as the post-attack statements of a female rape victim are admissible in corroboration of her testimony. King v. State, 210 Tenn. 150, 357 S.W.2d 42 (1962). It is also noteworthy that this statement is not explicitly accusatory of the defendant.

Error is assigned upon the State’s “failure” to bring three other inmates to testify. The State was under no obligation to produce every possible witness.

The only remaining assignment of error warranting specific treatment contends that a verdict should have been directed because the indictment alleged that the crime occurred on December 9, 1978, while the alleged victim testified that it was on December 13, 1973; and Deputy Sheriff Newton thought that the date was December 12, 1973. Suffice it to say that there was adequate State proof that December 9, as alleged, was the date of the crime.

We have reviewed all assignments of error and find them to be without merit. The conviction is affirmed.

GALBREATH and DWYER, JJ., concur.


author: PER CURIAM.

text:
    PHB, INC., Petitioner, v. Mrs. W. T. GOLDSMITH, Respondent.
    No. B-5952.
    Supreme Court of Texas.
    June 30, 1976.
    Werner & Rusk, John C. Werner, Houston, for petitioner.
    Meyer Jacobson, Houston, for respondent.
   PER CURIAM.

PHB, Inc. brought a bill of review to set aside a prior judgment in which Mrs. W. T. Goldsmith had been awarded title and possession to certain real estate. Mrs. Goldsmith filed a motion for summary judgment which the trial court granted. The Court of Civil Appeals affirmed. 534 S.W.2d 196.

The trial court’s order of dismissal, dated April 26, 1974, and discussed by the Court of Civil Appeals at 534 S.W.2d 197, did not refer to or mention Mrs. Goldsmith’s counterclaim. Under such circumstances, there is no presumption that the order of dismissal disposed of the issues in the counterclaim. North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966); Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296, 150 S.W.2d 377 (1941). It follows that the April 26, 1974 order was interlocutory, rather than final, in nature. The trial court thereby retained jurisdiction of the counterclaim until final judgment was entered on October 18, 1974. The writ of error is refused, no reversible error. Tex.R.Civ.P. 483.


text:
    Pamela Jean PATTISON, Petitioner, v. Kelly SPRATLAN, Respondent.
    No. B-6014.
    Supreme Court of Texas.
    July 7, 1976.
    Rehearing Denied July 21, 1976.

      Jerry Mack Hyde, Tyler, for petitioner.
    Curtis L. Owen, Dist. Atty., A. D. Clark, III, and George Conner, III, Asst. Dist. At-tys., Tyler, for respondent.
   PER CURIAM.

This was a suit filed by Kelly Spratlan, Supervisor of Welfare of Smith County against Pamela Jean Pattison to terminate the parent-child relationship between Patti-son and her three children. The trial court has terminated the parent-child relationship under Article 15.02(l)(k) and (2) of the Family Code. The Court of Civil Appeals has affirmed and assessed all costs against Pattison. 535 S.W.2d 48. An affidavit of inability to pay costs on appeal was filed by Pattison in the trial court. Since no contest was filed to this affidavit under Rule 355(e), Texas Rules of Civil Procedure, the allegations in it are taken as true and the Court of Civil Appeals erred in assessing appeals costs against Pattison. Pursuant to Rule 483, Texas Rules of Civil Procedure, the application for writ of error is granted and, without hearing argument, the judgment of the Court of Civil Appeals is modified so as to strike out any assessment of appeals costs against Pattison. Otherwise, the judgment is affirmed as modified.