author: BROCK, Justice.

text:
    CITY OF COLUMBIA, Tennessee, Petitioner, v. C.F.W. CONSTRUCTION CO. and Sherman Concrete Pipe Co., Respondents.
    Supreme Court of Tennessee.
    Nov. 25, 1977.

      Cain & Moore, Columbia, for petitioner.
    MacFarland, Colley, Blank & Jack, Columbia, Howser, Thomas, Summers, Binkley & Archer, Nashville, for respondents.
   OPINION

BROCK, Justice.

Plaintiff, City of Columbia, sues the defendants, C.F.W. Construction Company, a general contractor, and Sherman Concrete Pipe Company, a pipe manufacturer, for specific performance or, in the alternative, for damages alleging deficiencies in performance of a sewer construction contract. Right to relief was based both upon the original construction contract and a later executed guaranty agreement. At the close of plaintiff’s proof the Chancellor granted defendants’ motion for dismissal of the action. Holding that the subsequently executed guaranty agreement superseded the original construction contract and that the City had failed to offer evidence of a right to relief under the guaranty in that it had not identified specific defects of construction of the sewer line, the Court of Appeals affirmed the trial court. We granted certiorari.

I

In October, 1960, the City of Columbia (City) and C.F.W. Construction Company (CFW) entered into a contract whereby CFW agreed to construct certain sanitary sewer improvements for the City in accordance with plans and specifications prepared by consulting engineers, Zimmerman, Evans and Leopold (Engineer). The contract, together with an addendum, specified the use of reinforced concrete pipe for a portion of the sewer line, to be joined with flexible rubber-joint gaskets in order to obtain water-tight conditions and to allow for settling of the pipes. The specifications called for leakage and infiltration tests:

“The maximum allowable infiltration into the sewer lines shall be limited to 10,000 gallons per 24 hours per mile of sewer. This clause does not relieve the contractor of the necessity of making the sewers as tight as possible. Sewers which exceed this limit will not be accepted and the contractor shall take such steps as are necessary to bring the infiltration within the above allowance. * * * The test shall be made following a period of heavy rain and when the ground is saturated.” (Contract, T4-09(D).)

Before completion of the project, excessive leakage at the pipe joints prompted CFW to undertake repairs by sealing the leaking joints with a cement mortar, although this procedure was not in accordance with contract specifications. Infiltration tests conducted subsequent to the repairs on this segment of the construction indicated 153% and 143% of the maximum allowable infiltration rate. Because of the deviation from contract requirements and the Engineer’s consequent apprehension that defects might eventually appear in the sewer line with the settling of the pipes and consequent cracking of the rigid joints created by the mortar repair, the City ultimately refused to accept the segment of the project between manholes J-32 and J — 1.

In order to induce the City to accept and pay for the work, CFW and the pipe manufacturer and supplier, Sherman Concrete Pipe Company (Sherman Pipe) entered into a guaranty agreement with the City in March, 1962.

Pertinent provisions of the guaranty agreement are as follows:

“The said C.F.W. Construction Company has laid or installed a sewer line improvement for the City of Columbia, Tennessee, under and pursuant to a contract . which contract is hereby incorporated into this agreement by reference.
* * * * * *
“In order to induce the owner to accept said portion of sewer line work and to pay for same in accordance with the contract hereinabove referred to . the undersigned supplier and contractor . obligate . . . themselves . to repair and correct any and all defects arising from defective workmanship and materials that may be found in said portion of said sewer line in question within a period of ten CIO) years. including the replacement of portions of said line when necessary; said ten year period to begin at the expiration date of the one year guaranty provided under Paragraph GC-12 of said contract herein-above referred to.
“Without limiting the generality of the foregoing guaranty provision, the undersigned agree that during this ten year period:
“1. That Paragraph GC-12 of said contract is hereby extended for an additional ten year period insofar as it relates to that portion of the sewer line described above.
“2. That said Engineer, its successors or assigns, shall determine when there has been a defect in said portion of the sewer line. Upon notification by said Engineer or the City of Columbia, the undersigned shall within a reasonable time undertake the necessary repair and corrective measures, including the replacement of any portion of said sewer line that in the judgment of the Engineer requires replacement.
“3. ... In general, Paragraph GC-31 of said contract shall govern the corrective or replacement work if the need arises.
“4. The undersigned agree to pay for all damages caused by any defects determine 1 to result from the unfitness and unsoun Iness of the portion of said line hereinabove referred to, including damages to other work resulting therefrom. ******
“6. The undersigned agree to pay all expenses, including engineer’s fees and costs of plans and specifications incurred because of work required under this contract and guaranty.
******
“8. The Supplier and Contractor shall pay for all damages resulting from their failure to make the necessary repairs promptly after notice from the city or from said engineer that a defect has occurred.
“9. The said contract herein made a part of this agreement shall, where applicable, apply to any replacement work called for by reason of this agreement.
***** *
“11. The City of Columbia by accepting this guaranty does not waive its rights under Paragraph GC-12 of said contract.
******
“The City of Columbia shall be deemed to have accepted this guaranty when payment is made of the balance due under said contract.” (Underscoring added.)

A guaranty bond required by the guaranty was executed by a corporate surety and remained in effect for the first five years of the guaranty. Simultaneous with the guaranty agreement, CFW and Sherman Pipe entered into an agreement between themselves to share equally any obligations under the Guaranty with the City.

Thereafter, on August 20, 1962, the City accepted the construction and paid the balance owed under the contract.

Paragraph GC-12 of the original contract, extended for an additional ten years by the guaranty, provides as follows:

“GC-12. GUARANTEE: CORRECTION OF THE WORK:
For a period of at least one year after the completion of the Contract, the Contractor warrants the fitness and soundness of all work done and materials and equipment put in place under the Contract. Neither the final certificate of payment nor any provision in the contract documents or entire occupancy of the premises by the Owner shall constitute an acceptance of work not done in accordance with contract documents or relieve the Contractor of liability for faulty materials or workmanship. The Contractor shall remedy any defects in the work and pay for any damage to other work resulting therefrom, which shall appear within a period of one year from the date of final acceptance unless a longer period is specified. The Owner shall give notice of observed defects with reasonable promptness.”

Subsequent to the City’s acceptance of the entire sewer construction project the Engineer conducted three (3) infiltration tests of the sewer line:

(1)

A test conducted May 12, 1966, determined that the adjusted infiltration rate was 189,000 gallons per day as compared with the permissible maximum specified in the contract of 20,350 gallons per day.

Shortly thereafter, the City advised CFW and Sherman Pipe of the Engineer’s finding of excessive infiltration and gave “official notice to the parties concerned to discharge the obligation required by the Guaranty and Guaranty Bond.”

CFW inspected the pipes and “found the line to be in excellent general appearance and . . . only located approximately six leaks,” and that the leaks did “not appear to be at each joint, but ... in isolated locations . . ..” CFW proposed “encasing the leaks from the outside with concrete one by one” and, in the event such repairs failed, proposed to conduct a television inspection and further repairs with Penetryn.

The Engineer objected to the absence of flood conditions when the CFW inspection was conducted but approved the method of repair proposed if CFW understood “that if the infiltration rate, after the corrective work has been performed, still exceeds the contract allowable rate, (CFW) will employ other means of locating and correcting the excess leakage,” and, provided the infiltration tests were performed during wet weather conditions. These conditions and requirements were formally approved and accepted by CFW and Sherman Pipe.

CFW undertook repair of the pipes but closer inspection revealed that none of the six previously discovered “leaks” was the result of its defective work but resulted either from improper or faulty sewer connections which had been tapped onto the top of the sewer line by third parties after it had been constructed or were not actually leaks at all.

The City, however, believed that the proportion of infiltration attributable to the faulty service connections was insignificant in proportion to the excessive infiltration rate, nine times the permissible maximum, and, a year later, requested CFW to proceed with alternate repair methods.

CFW insisted, however, that it “still (did) not have enough factors upon which to make a final determination,” and the City proceeded to have the Engineer appraise the existing pipe line.

(2)

A test conducted June 23, 1970, determined that the infiltration rate was 712,576 gallons per day. This figure was later corrected to allow for a section of cracked pipe caused by road construction resulting in an adjusted figure of 537,576 gallons per day (26 times permissible maximum).

In a letter setting forth the results of its appraisal the Engineer stated:

“Based on these tests, it is our recommendation that the City of Columbia take immediate recourse against the Contractor and Supplier, using the steps outlined in this Guaranty. The obligated parties should be instructed to take prompt action to reduce the infiltration in this sewer line to the amount stipulated as acceptable in the specifications.”

The City transmitted a copy of the Engineer’s report to CFW and Sherman Pipe, requesting immediate action to comply with the contract.

CFW then carried out an extensive film investigation of the pipes in August and September of. 1970, taking 1800 different pictures at six foot intervals throughout the segment of the pipe under dispute. These pictures showed all connections into the sewer line and all structural defects, other than gasket joints which could not be seen in the internal pipe pictures. The pictures did not demonstrate any defects of joints but did reveal cracked clay pipes which resulted from the City’s road construction and also identified the previously located service connections.

(3)

A test conducted March 31, 1971, with representatives of both the City and CFW present, determined that the adjusted infiltration rate was 495,500 gallons per day (25 times maximum).

In this test all service connectors were plugged and corrections made for the non-construction defects identified by CFW’s film investigation.

The Engineer again urged:

“To prevent further financial loss, the City should take immediate action to have the Contractor fulfill the terms of his Guaranty and Guaranty Bond Agreement. The Contractor should be required to use methods satisfactory to the City of Columbia and reduce the infiltration so that it will not exceed the allowable limits.”

Thereafter, on April 10, 1972, the City filed suit against CFW and Sherman Pipe alleging breach of the original contract and breach of the guaranty. Defendants filed a joint answer denying liability under the contract and the guaranty agreement.

During the course of the trial, H. F. Zimmerman, who was qualified as an expert, responded to a hypothetical question that it was his opinion the inflexible joint sealer had cracked and that this was the reason for the excessive infiltration.

Another expert, Larry D. Sherer, testified, “I feel . . . excessive infiltration is primarily caused by leaking joints.” The Chancellor sustained the objection of defendant’s counsel that Mr. Sherer’s response was “the ultimate question in this lawsuit and there was no evidence that he examined any joints or found any leaking joints. All he did was an infiltration test.”

At the close of plaintiff’s proof the Chancellor granted the defendants’ “motion for a directed verdict,” but failed to make findings of fact. The Court of Appeals affirmed, holding that the subsequently executed guaranty agreement superseded the original contract and that the City had failed to identify specific defects of construction in the sewer line which entitle it to relief under the guaranty.

We granted certiorari review.

II

Although reaching contrary conclusions, both parties assert that the central question presented is whether the City is entitled to rely upon both the construction contract and the guaranty agreement, or, is limited to the provisions of the guaranty.

This issue is essentially one of ascertaining the intent of the parties. The evidence of intent is to be found in the language used by the parties in the guaranty agreement, considered in the light of their respective interests and other relevant circumstances existing at the time the guaranty was executed, and in the practical construction given to it by the parties, as disclosed by their actions subsequent to its execution.

In our opinion neither the insistence of plaintiff nor that of the defendants is wholly correct; some, but not all, rights and obligations of the original contract are continued by the guaranty agreement. Thus, the guaranty provides that section GC-12 of the original contract is “extended for an additional ten year period insofar as it relates to that portion of the sewer line described above (between manholes J-32 and J — 1)”; and, that “[t]he City of Columbia by accepting this guaranty does not waive its rights under Paragraph GC-12 of said contract.”

The sense of the guaranty agreement is that the City, having refused, upon reasonable grounds, to accept that portion of the line between manholes J-32 and J-l “because of its apprehension that defects [might] appear in said portion of the sewer line because of unfitness or unsoundness,” agreed to accept the disputed line and pay the contractor as scheduled in the original contract in consideration of the execution by the defendants of the guaranty agreement. The City gave up its rights as they existed under the original contract in exchange for the guaranty agreement with its provisions for a ten year warranty, a corporate bond of five years’ duration and the addition of Sherman Pipe Co. as a “guarantor” or warrantor. Therefore, we are of the opinion that the guaranty agreement constitutes an accord and satisfaction of the original construction contract and, thus, constitutes a discharge of its obligations. See Restatement of Contracts, §§ 418, 419. Accordingly, the rights and duties of the parties are to be determined in accordance with the provisions of the guaranty agreement. The principal contractual provisions are (1) the warranty clause of paragraph GC-12 of the original contract, brought forward by the guaranty, to-wit:

“ . . . the contractor warrants the fitness and soundness of all work done and materials and equipment put in place under the contract. ...”

and (2) the following provisions of the guaranty agreement:

“ . . . Supplier and contractor [agree] to repair and correct any and all defects arising from defective workmanship and materials that may be found in said portion of said sewer line . within a period of ten (10) years,
‡ ⅝ ‡ * # *
“The undersigned agree to pay for all damages caused by any defects determined to result from the unfitness and unsoundness of the portion of said line. . ” (Underscoring added.)

Ill

As noted above, the Chancellor at the conclusion of plaintiff’s evidence granted the motion of defendants “for a directed verdict,” although this case was tried without a jury. Rule 41.02(2), Tennessee Rules of Civil Procedure, provides:

“After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the •close of all the evidence; in the event judgment is rendered at the close of plaintiff’s evidence the court shall make findings of fact if requested in writing within three days after the announcement of the court’s decision.”

The motion authorized by this rule is not to be confused with a motion for directed verdict which is authorized by Rule 50, Tennessee Rules of Civil Procedure. Motions for a directed verdict are neither necessary nor proper in a ease which is being tried without a jury. Motions for dismissal in non-jury cases under Rule 41.-02(2), Tennessee Rules of Civil Procedure, and motions for directed verdicts in jury cases under Rule 50, Tennessee Rules of Civil Procedure, are somewhat similar, but, there is a fundamental difference between the two motions, in that, in the jury case, the judge is not the trier of facts while in the non-jury case he is the trier of the facts. In the jury case he must consider the evidence most favorably for the plaintiff, allow all reasonable inferences in plaintiff’s favor and disregard all counteracting evidence, and, so considered, if there is any material evidence to support a verdict for plaintiff, he must deny the motion. But in the non-jury case, when a motion to dismiss is made at the close of plaintiff’s ease under Rule 41.02(2), the trial judge must impartially weigh and evaluate the evidence in the same manner as though he were making findings of fact at the conclusion of all of the evidence for both parties, determine the facts of the case, apply the law to those facts, and, if the plaintiff’s case has not been made out by a preponderance of the evidence, a judgment may be rendered against the plaintiff on the merits, or, the trial judge, in his discretion, may decline to render judgment until the close of all the evidence. The action should be dismissed if on the facts found and the applicable law the plaintiff has shown no right to relief.

Upon appeal from a judgment granting such a motion to dismiss the Court of Appeals must review the evidence according to the rules established by T.C.A., §§ 27-113 and 27-303, and, this Court, in reviewing the action of the Court of Appeals in such a case, must do so according to the dictates of T.C.A., §§ 27-113 and 27-304. Thus, to the extent that the findings of fact of the trial judge and the Court of Appeals concur, they shall be conclusive upon this Court if there be any evidence to support them. But, to the extent that the findings of the trial judge and of the Court of Appeals do not concur, the facts are open to a de novo examination in this Court with the presumption, however, that the judgment of the trial judge was correct unless the evidence preponderates against it. Folk v. Folk, 210 Tenn. 367, 355 S.W.2d 634 (1962); Joest v. John A. Denie Sons Co., 174 Tenn. 410, 126 S.W.2d 312 (1939). And, in cases such as the instant one, in which the trial judge has failed to make specific findings, although a particular finding might be considered to be implicit in his holding, this Court is not bound by the concurrent finding of fact rule on the theory that the trial judge and Court of Appeals have made concurrent findings; in such situations this Court will review the record with a view to determine where the preponderance of the evidence lies with respect to the issue of fact in question. Kemp v. Thurmond, Tenn., 521 S.W.2d 806 (1975). It is by this standard that we have reviewed the evidence in this case.

The question is whether a preponderance of the evidence supports a finding of “unfitness and unsoundness” of the sewer line due to “defects arising from defective workmanship and materials.” We hold that it does.

Of course, “[a]ny fact may be proved by direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence.” Scott v. Atkins, 44 Tenn.App. 353, 314 S.W.2d 52 (1957). Circumstantial evidence “consists of proof of collateral facts and circumstances from which the existence of the main fact may be deduced according to reason and common experience of mankind.” Webb v. State, 140 Tenn. 205, 203 S.W. 955 (1918). The results of infiltration tests, properly performed, may demonstrate infiltration into a sewer line. See City of Hillsboro v. James and Yost, Inc., 240 Or. 433, 402 P.2d 511 (1965).

Although the maximum permissible infiltration rate specified in the original contract applied to field tests of the sewer line performed before the plaintiff’s acceptance of the work, such figure adequately represents a mutually agreed tolerance of reasonable deviation from absolutely watertight sewer construction. Infiltration at a greater rate may be fairly considered to be a defect within the meaning of the guaranty agreement, provided it results from defective materials or workmanship. This was implicitly recognized by the Court of Appeals which stated:

“Ordinarily, evidence that the efficiency of a sewer pipe had deteriorated by a multiple of 25 or 35 within eight years would present a prima facie inference of defective materials or workmanship in its construction.”

The Court of Appeals held, however, that certain leaks not attributable to the defendants “negative any prima facie inference of structural defect arising from the excessive infiltration. . . . ”

We cannot agree. Our examination of the record discloses that at least the third infiltration test specifically accounted for and excluded the non-construction caused leaks identified by CFW. Hence, such leaks cannot negative the inference of structural defects arising from the fact of grossly excessive infiltration.

In conducting the 1966 infiltration test, revealing nine times the permissible infiltration rate, the Engineer plugged “[a]ll known tributary sewers” but CFW’s subsequent investigation revealed four unauthorized service connections not accounted for by the testing procedure.

The 1970 test took into consideration the sources of external water identified by CFW and initially resulted in an infiltration rate of 35 times the allowable rate. CFW’s subsequent film investigation revealed cracked clay pipes resulting from highway construction in one segment of the line. Mathematical corrections of the infiltration rate for this segment were made, resulting in a rate of 26 times permissible maximum.

Finally, the comprehensive 1971 test of the line, at which representatives of both the City and CFW were present, took into account all known and identified sources of external water and defects in the line that were not the result of the contractor’s construction and resulted in an infiltration rate 25 times permissible maximum.

Together with proof that the joints of the sewer pipes were not properly fitted or sealed and that this may have allowed for infiltration, the corrected second infiltration test, the comprehensive third test and the expert opinion that the excessive infiltration took place at the joints constituted a preponderance of evidence to establish a case of defective construction. Of course, ultimately, such evidence may be overcome by the defendants’ proof. But the general rule is that “it is sufficient, in a civil case depending on circumstantial evidence, for the party having the burden of proof to make out the more probable hypothesis and the evidence need not rise to that degree of certainty which will exclude every other reasonable conclusion.” Bryan v. Aetna Life Insurance Co., 174 Tenn. 602, 130 S.W.2d 85 (1939).

We conclude, therefore, that the Chancellor and the Court of Appeals erred in dismissing the action and that the cause must be remanded to the trial court for a new trial.

IV

One other issue remains. Two witnesses qualified as experts and testified that, in their opinion, excessive infiltration into the sewer lines was due to defects of construction. Although one expert witness responded in answer to a hypothetical question, the Chancellor disallowed the testimony of the other expert witness because his response went to “the ultimate question in this lawsuit and there was no evidence that he examined any joints or found any leaking joints. All he did was an infiltration test.”

In National Life & Accident Insurance Co. v. Follett, 168 Tenn. 647,80 S.W.2d 92 (1935), this Court determined that where expert information is necessary for intelligent decision of an ultimate issue it does not matter that the opinion and one solution to the ultimate issue coincide. It is only when the trier of fact is as competent as the expert to determine an issue that the opinion of an expert has been held to be inadmissible, because unnecessary. See D. Paine, Tennessee Law of Evidence § 177 (1974). Moreover, in our view the better rule is that an expert’s opinion is not objectionable merely because it embraces an ultimate issue to be decided by the trier of facts, so long as it is helpful to the court. See Federal Rules of Evidence, Rule 704. Accordingly, we conclude that it was error for the Chancellor to exclude the testimony of the expert in this instance.

The decrees of the lower courts are reversed and this cause is remanded to the chancery court for further proceedings consistent with this opinion. Costs of this appeal will be borne by the defendants, C.F.W. Construction Company and Sherman Concrete Pipe Company.

COOPER, C. J., and FONES and HARBI-SON, JJ., concur.

HENRY, J., not participating.

      . This rule is patterned after Rule 41(b) of the Federal Rules of Civil Procedure. We thus have the benefit of the experience of the Federal courts in interpretation of the Federal rule.


source: Caselaw Access Project

author: DAVID T. WALKER, Special Judge.

license: Public Domain

text:
    Jolene Bennett RUPE, Appellee, v. DURBIN DURCO, INC., et al., Appellant. JASPER CALLOWAY CONSTRUCTION COMPANY, INC., Appellee, v. DURBIN DURCO, INC., et al., Appellant.
    Court of Appeals of Tennessee, Eastern Section.
    April 2, 1976.
    Rehearing Denied July 6, 1976.

      Wilson, Worley, Gamble & Ward, Kings-port, for appellant.
    Hicks, Arnold & Haynes, Johnson City, for appellees.
   OPINION

DAVID T. WALKER, Special Judge.

These product liability actions were premised upon strict liability in tort under Restatement 402(a). They were consolidated for trial before a jury which resolved the issues in favor of the plaintiffs.

The defendant’s appeal presents two legal questions of first impression in the State of Tennessee. First, whether a post-trial motion for judgment notwithstanding a verdict, pursuant to Rule 50.02 of the Rules of Tennessee Civil Procedure, should be considered to be a complete substitute for a motion for new trial. Second, whether the Tennessee Workmen’s Compensation Act will permit a third party, who has been found liable to a workman for personal injuries, to seek indemnity against the workman’s employer who has himself paid compensation benefits to the employee.

We have concluded that the appellate review is restricted to a consideration of the trial judge’s action on the defendant’s motion for peremptory instructions which essentially involves consideration of legal issues. We also conclude that there is no right of indemnity under The Workmen’s Compensation Act.

On December 29, 1972, Roy Lee Rupe, a truck driver and employee of Jasper Callo-way Construction Company, Inc., was instantly killed when a TL-30 Front End Loader shifted from its position on a “lowboy” trailer and crushed the cab of the truck he was driving. The truck belonged to Jasper Calloway Construction Company, Inc. At the time of the accident Rupe was proceeding down a steep gravel road toward the Johnson City-Erwin Highway when the TL-30 shifted. The entire truck-trailer rig was overturned. The TL-30 was still attached to the lowboy by a chain and load binder in the rear and a chain at the front. A second load binder was found some eight to ten feet to the rear of the lowboy with a broken chain link where a hook is normally attached.

The appellant manufactures chain tightening devices known as load binders. The ones found at the accident scene had the following identification markings: “Durbin Durco, Inc., STL Missouri, Pat. DIJ7 and Dl-S Durbin, Inc., CAP 12,000, SWL ¼ CAP.” The two load binders were purchased by Jasper Calloway Construction Company, Inc. from a local hardware store on December 15, 1972.

The only witness to this accident was Mr. Robert Bennett, an employee of the owner of the TL-30. It was his responsibility to assist in loading the TL-30, but he had no duty to aide Mr. Rupe in securing it. Mr. Bennett was not in a position to testify with any degree of certainty as to the exact procedure employed by Mr. Rupe to secure the TL-30. He did testify that Mr. Rupe had two chains, two binders, and two wooden blocks available, and that the two wooden blocks were used to block the front wheels of the TL-30 to prevent forward movement. Moreover, he testified that he assisted Mr. Rupe in securing the binder to the chain at the rear of the lowboy and the TL-30. However, he was positioned on the passenger’s side of the truck and trailer and could not determine whether a binder was used on the front chain. Also, his testimony was conflicting as to how the front chain was employed by Mr. Rupe. Mr. Bennett further testified that he was riding in the cab with Mr. Rupe at the time of the accident, and that he observed some unusual movements of the TL-30 immediately after they started down the gravel road. He said that he endeavored to discuss this matter with Mr. Rupe but that the accident happened before he could.

Mr. Jasper Calloway supported Mr. Bennett’s testimony as to the equipment available for securing heavy cargo. He also said that he had observed Mr. Rupe secure heavy equipment on numerous occasions and that it was his invariable habit and custom to use two chains and two binders.

Dr. James H. Steele, Jr., a metallurgical engineer, testified that in his opinion the failure of the load binder was the result of an incomplete weld in the broken link. Furthermore, he said this was present when the manufacturer painted the link because he found red paint in the weld. It was his opinion that the final fracture of the link was a brittle failure as opposed to a ductile tear. He stated that if the binder had been overloaded at the time of failure, there would have been an elongation of fifteen percent and a ductile tear. The link was characterized neither by elongation nor ductile fracture. He further testified that a proper weld is the strongest point in a chain link and other testimony supports this conclusion. In fact, tests have shown that chain links break at places other than the weld in ninety percent of the cases.

This was substantially the evidence introduced by the plaintiffs as to the cause of the accident when the trial judge first overruled the defendant’s motion for directed verdict.

The defendant’s evidence consisted mainly of the testimony of two experts. One was Mr. Louis Reznek, an attorney and former Chief Engineer, Bureau of Motor Carrier Safety, Interstate Commerce Commission. Mr. Reznek was employed as an independent consultant to trucking companies and associations on matters concerning the securing of loads and hauling of cargo by trucks. He testified that in his opinion the proper way to secure the TL-30 would have been by four chains and at least four load binders. He said the axles of the TL-30 should have been blocked to eliminate the bouncing effect of the rubber tires, and that the chains and binders should have been attached to the axle of each wheel. He further testified that the gooseneck on the lowboy presented no significant obstacle to forward movement and did not comply with the Tennessee Public Service Commission safety regulations. Those regulations read as follows:

Every motor vehicle carrying cargo, the nature of which is such that the shifting thereof due to rapid deceleration or accident would be likely to result in penetration or crushing of the driver’s compartment must, in addition to having the load securely fastened or braced, be provided with header boards of similar devices of sufficient strength to prevent such shifting and penetration. All motor vehicles shall be so constructed or be equipped with adequate cargo fastening devices so that the load will not penetrate the cargo compartment wall when subjected to the maximum braking deceleration of which the vehicle is capable.

On cross-examination Mr. Reznek admitted that at one time he and the Department of Transportation considered the gooseneck a headboard.

The defendant’s other expert was Dr. Thomas Manos, a PhD Mechanical Engineer, and an expert in accident reconstruction. He studied the tractor-trailer rig and the TL-30, and was of the opinion Mr. Rupe failed to place pins in the hitch at the rear of the lowboy. This would have allowed the chain to slip, which in turn would permit the loader to shift forward. He assumed the front chain was wrapped around the bucket arms of the TL-30 without the use of the binders, and that this chain simply slipped forward on the gooseneck.

Dr. Manos further testified that since the tractor-trailer rig came to rest in an overturned position on top of the TL-30, there must have been something still securing the TL-30 to the rig when it overturned. He theorized that if two binders were actually used, the overturning process might well have broken any chain or load binders securing the TL-30. If this was the case, the broken binder could have been thrown some distance from the wreckage.

At the close of all the proof, the defendant renewed the motion for directed verdict which the trial judge overruled. The jury returned a verdict of $100,000.00 for plaintiff-appellee, Jolene Bennett Rupe, and $2,000.00 for the plaintiff-appellee, Jasper Calloway Construction Company, Inc. The trial judge sustained a motion for summary judgment and dismissed the third party complaint of Drubin Dureo, Inc., for indemnity against the employer, Jasper Calloway Construction Company, Inc.

The appellant did not file a motion for new trial, but chose to seek an appellate review on a post-trial motion for judgment notwithstanding the verdict. The appellant insists that he should not be required to file a motion for new trial because he does not desire a new trial, but seeks a reversal and dismissal of the plaintiffs’ original suits. Failing to obtain a dismissal of the original suits, he seeks a reversal of the trial judge’s denial of his indemnity claim.

We will first consider the extent of an appellate review required by the motion for judgment notwithstanding a verdict. The appellees contend that a motion for new trial is necessary before an appellate review may be had of the trial court’s action in refusing to grant the defendant’s motion for directed verdict.

This contention is supported in the case of Moore v. Standard Life and Accident Ins. Co., 504 S.W.2d 373 (Tenn.App.1972), where it was specifically held that: “A motion for new trial is indispensable to review the action of the trial judge in refusing to grant a directed verdict.”

The Moore case was prior to the effective date of The Tennessee Rules of Civil Procedure. The appellant’s motion is permissible under Rule 50.02 which reads as follows:

Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 30 days after the entry of judgment a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict . . . A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative.

The comments to Rule 50.02 state that:

. the power of the Court to grant a directed verdict on post-trial motion, either following a verdict or in event of a mistrial because of disagreement of the jury, has long been recognized in Tennessee. This rule, however, does permit the filing of a post-trial motion for directed verdict without its being incorporated into a motion for a new trial as has been the practice heretofore followed, although the prior practice in this regard is still permitted.

This rule is identical to the Federal Rules of Civil Procedure and several federal decisions have treated this motion as a motion for new trial and remanded the case for new trial if the circumstances and justice so demanded. The function of a federal district judge and a Tennessee trial judge are substantially different when faced with a motion for peremptory instruction, and in Tennessee, a more limited appellate review is required. In Higgins and Crownover, Tennessee Procedure in Law Cases, 522, § 1391 (1937), it is said:

The prevailing federal rule is that a trial judge may grant peremptory instructions where he reaches the conclusion that he will have to set aside any verdict which might be rendered in favor of the plaintiff. The rule in Tennessee is that the judge by so doing enters upon the delicate business of weighing the evidence instead of undertaking to arrive at the conclusion that there is no evidence to sustain the plaintiff’s cause of action. The court should not direct a verdict even where the evidence greatly preponderates against the plaintiff, if the latter has submitted material evidence tending to uphold the averments of the declaration. The contrary rule would result in abolishing the statutory prohibition against the granting of more than two new trials for insufficiency of testimony supporting the plaintiff’s cause of action. (Citing Bren-izer v. Railroad, 156 Tenn. 479, 3 S.W.2d 1053 [8 S.W.2d 1099]; Sills v. Lathan, 3 Higgins 141.)

In Lackey v. Metropolitan Life Ins. Co., 30 Tenn.App. 390, 206 S.W.2d 806, the Court said:

“There can be no constitutional exercise of the power to direct a verdict in any case in which there is a dispute as to any material evidence, or any legal doubt as to the conclusion to be drawn from the whole evidence, upon the issues to be tried.” Tyrus v. Railroad, 114 Tenn. 579, 594, 86 S.W. 1074, 1077 ....
As said so often, this rule requires trial judges and appellate judges, in considering a motion by defendant for a directed verdict, to look to all the evidence, to take as true the evidence for plaintiff, to discard all countervailing evidence, to take the strongest legitimate view of the evidence for plaintiff, to allow all reasonable inferences from it in his favor; and if then there is any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied, (cases cited.)

The theory upon which a motion for judgment notwithstanding verdict is entertained is that notwithstanding the pronouncement by the jury in favor of a party, the record did not justify or call for the intervention of a jury. No such motion can be entertained on the ground that the evidence does not support the verdict. Such a motion must be based solely on defects appearing in the record. Citizens Trust Co. v. Motor Car Co., 154 Tenn. 507, 297 S.W. 735.

A motion for new trial in Tennessee provides the trial judge with an opportunity to correct errors and thus prevent unnecessary appeals. It is also in reality a pleading upon which the trial judge reviews the testimony and is in the nature of a new suit in that it is an assault upon a record already made and is a petition to redress wrongs. It should receive the greatest consideration and should not be disposed of hastily. It is the only opportunity provided by law for weighing the preponderance or the sufficiency of the evidence. If the verdict is not sustained by the preponderance of the evidence, it is the duty of the trial judge to grant a new trial. This motion calls for a weighing of the probabilities and for a judgment. The judgment of the trial court is demanded and cannot be avoided. He must either approve or disapprove the verdict, accordingly as he is satisfied or dissatisfied with it in light of the evidence. It is a firmly established rule that no party has a right to a verdict unless he has shown by a preponderance of the evidence that he is entitled to it. The trial judge should always remember that his decision upon this point is final. The appellate courts are not generally concerned with questions of preponderance in a case tried to a jury.

While federal judges are permitted to deal with the problems of insufficiency and preponderance when considering a motion for directed verdict, this important function does not take place in Tennessee until the motion for new trial. The motion for new trial in Tennessee has much merit and validity to determine ultimate justice in a jury trial and the appellate courts will closely scrutinize any procedural rule which abrogates the necessity for a motion for new trial in a jury case.

There is no doubt that the defendant’s post-trial motion is sufficient for the purpose of an appellate review, for the right is expressly granted under Rule 50.02. Even prior to Rule 50.02 the appellate courts recognized that as to legal questions, the trial court’s actions could be reviewed upon post-trial motions other than for new trial. Life & Casualty Ins. Co. v. Bradley, 178 Tenn. 526, 160 S.W.2d 410 (1941); Fu-son v. Cantrell, 25 Tenn.App. 608, 166 S.W.2d 405 (1942); Monday v. Reed, 47 Tenn.App. 656, 341 S.W.2d 755 (1960). Rule 50.02 does not change the substantive law of this state in regard to the power of trial and appellate judges when considering questions pertaining to peremptory instructions. The appellant’s position is clearly stated on page one of the reply brief: “Durbin Durco did not seek a new trial, but by its motion sought to have the trial court reconsider its holding as to the sufficiency of the evidence to support the verdict.” On page 13 of the brief the following statement appears: “There was insufficient evidence to send the cases to the jury.” Similar language also appears on page 23. These matters are not proper considerations by the trial judge on motions for directed verdict. They may only be considered on a motion for new trial by the trial judge whose power is limited by statute to granting two new trials for insufficiency of the evidence to support a jury verdict.

The appellant’s post-trial motion for judgment notwithstanding the verdict is generally restricted to two specifications of error. One is that there is no evidence to support the jury’s verdict. The other is that the record indicates without doubt that the defendant has established a defense which constitutes a bar to the plaintiff’s cause of action.

The appellant’s appeal properly raises two basic issues for consideration by this Court. First, is there any material evidence to support the plaintiff’s contention that the defective binder was in fact used to bind the TL-30 on the day of this accident? Second, does the defense’s evidence establish without any reasonable doubt that the binder in question was put to an abnormal and unintended use resulting in its final failure?

The defendant contends that there is no evidence that the binder found at the rear of the wreckage was in fact utilized by Mr. Rupe to secure the TL-30. This is a crucial issue because there is no direct testimony on this point, and the plaintiffs’ cases would indeed fail if material and determinative evidence to support their contentions cannot be found in the record.

Any fact may be proven by direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. The plaintiffs’ rely upon the testimony of Mr. Robert Bennett and Mr. Jasper Calloway. Their testimony does constitute material and determinative evidence. Thus, neither the trial judge nor this Court can dismiss these cases on motion for directed verdict. We realize that there is a question as to the weight to be given to the testimony of both of these witnesses. We also realize that there is a question as to the competency of the testimony of Jasper Cal-loway. However, these matters would have to be dealt with on a motion for new trial. Moreover, the question of the competency of Mr. Calloway’s testimony was not raised at the trial level by any post-trial motion and was only brought to the attention of this court by way of argument. We do not find any error in the trial court’s failure to grant peremptory instructions on this issue.

The defendant contends further that if the binder in question was used, the final failure was a result of use beyond its intended capacity. There is no question but that the weight of the TL-30 was 28,400 pounds. Neither is it disputed that the recommended capacity for each binder was 12,000 pounds and the safe working capacity was 3,000 pounds. These warnings were stated by the manufacturer in the terms set out earlier in this opinion and were not understood by some of the experts who testified. Therefore, it could be reasonably inferred that Mr. Rupe did not understand the manufacturer’s warning. Disregarding the question of the adequacy of the manufacturer’s warning, this Court would be constrained to dismiss these cases except for the testimony of Dr. Steele. He said that the broken link showed no indication of elongation or ductile tear. These things would have indicated use beyond capacity. However, Dr. Steele’s testimony was to the effect that the final failure of the binder was the result of the incomplete weld. This originated with the manufacturer and not from use beyond capacity. We find that there was no error in the trial court’s failure to grant peremptory instructions. We have reviewed all the defendant’s assignments of error and find that they must be overruled. We affirm the action of the trial judge on the defendant’s motions for directed verdict.

The defendant contends further that the trial judge erred in entering a summary judgment dismissing the third party complaint against Jasper Calloway Construction Company, Inc. In that suit, Durbin Durco sought indemnity on the theory that its negligence was passive while the negligence of Jasper Calloway Construction Company, Inc. was active. The active-passive approach to indemnity claims in tort cases was approved in the case of Cohen v. Noel, 165 Tenn. 600, 56 S.W.2d 744 (1933). As to the third-party action, the question is as follows: Where a third party is found liable for injuries to a workman, may the third party then seek indemnity from the workman’s employer even though the employer himself is liable for the injuries under the Workmen’s Compensation law? The federal cases construing the Tennessee Workmen’s Compensation laws have held that indemnity claims by a supplier against an employer are barred where the claim is based on indemnity implied in law, although such a claim could be based on an otherwise valid express contract of indemnity. Dawn v. Essex Conveyors, Inc., 498 F.2d 921 (6th Cir. 1974); McCoy v. Wean United, Inc., 67 F.R.D. 495 (E.D.Tenn.1974).

Workmen’s Compensation laws are designed to liberalize the basis for employees’ claims against employers for accidental injuries arising out of and in the course of employment. However, such laws restrict the amount of damages by excluding pain and suffering. The Tennessee Contribution Among Tortfeasors Act expressly prohibits contribution under the Workmen’s Compensation laws.

The active-passive concept of negligence was resorted to by the courts to avoid rules prohibiting contribution and has proven to be very elusive and difficult to fairly apply. To permit indemnity against an employer would in effect permit a third party tort-feasor to indirectly force an employer to pay for pain and suffering. The employee is not entitled to this under the Workmen’s Compensation Act. The problems are further compounded because the employer in this state is subrogated to his employees’ rights against a third party tortfeasor to the extent of the compensation paid. There are further complications in this case since the employer, Jasper Calloway Construction Company, Inc., has recovered a $2,000.00 judgment against the third party tort-feasor, Durbin Durco, Inc. Any type of equitable adjustment would appear to be a form of contribution and not indemnity.

The trial judge dismissed the defendant’s indemnity claim as a matter of law. Apparently he followed the federal decisions which deny indemnity to a supplier whose actions, in many cases, consist of merely passing on a defective product and could well fall within the passive-active negligence test. Realizing that there are problems in this case, we feel that barring all indemnity claims is consistent with the basic policies of the Workmen’s Compensation laws. These problems lend themselves to legislative action rather than judicial interpretation.

The judgment of the trial court is affirmed and the cost of this appeal is taxed to the defendant.

PARROTT, P. J., and GODDARD, J., concur.


author: RUSSELL, Judge. GALBREATH, Judge,

text:
    Paul Eugene VANCE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 30, 1977.
    Certiorari Denied by Supreme Court Nov. 14, 1977.
    Ham Patterson, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Joseph B. Dailey, Asst. Dist. Atty. Gen., Memphis, for appellee.
   RUSSELL, Judge.

OPINION

This is an appeal by Paul Eugene Vance from his convictions for professional gambling in violation of T.C.A. § 39-2032; maintaining a gambling premise in violation of T.C.A. § 39-2036(4); and encouraging, promoting, or exhibiting a gambling table or device in violation of T.C.A. § 39-2002. Jail sentences for the latter convictions were ordered served concurrently with the two to three years in the penitentiary fixed for professional gambling; and $1,000 fines were levied in each case.

Vance was unquestionably and admittedly operating a storefront gambling premise in Memphis. His effort at a defense was based upon his contention that the operation was church operated. The brief and argument presented in his behalf upon this appeal consists of only two sentences (aside from the statement of the assignments of error and the statement of the case), wherein it is said that the general gaming statutes of Tennessee do not apply to religious groups operating bingo games, lotteries or similar games of chance, and that the device for which the defendant was indicted was a lottery. (The three assignments of error contend that the evidence preponderated against the verdict, that the game of chance conducted by Vance was legal because pursued by a religious organization, and that the sales tax exemption certificate of the Christian Church of Faith should have been admitted into evidence.)

This case boils down to the fact that Vance claims an affirmative defense to operating a gambling house; that is, that it was church operated. It is unnecessary for us to examine the evidence on this point with strictness, because Vance has utterly failed to present any evidence that would qualify his operation for exemption as that of a religious or charitable group under that provision of the law, T.C.A. § 39-2033(8), which grants such institutions exemption only “if no part of the gross receipts derived from such activity inures to the benefit of any private shareholder, member or employee of such organization and if no part of the gross receipts derived from such activity is used for any other than benevolent, charitable or religious purposes or for the purpose of constructing, maintaining of renting a building to be occupied by such organization”. As the State points out in its brief, there is no such showing in this case. While Vance presented evidence that his was a church operation, engaging also in some charity, no evidence was presented tending to show that no person benefitted individually or that all of the gross receipts were used for benevolent, charitable or religious purposes.

The law in Tennessee is that where certain categories of activities similar to the acts which constitute a crime are exempted from criminal liability by an independent section of the act defining the particular crime, it is up to the defendant to bring himself within the exemption. Villines v. State, 96 Tenn. 141, 33 S.W. 922 (1896). This is in accord with other jurisdictions. This language appears in Wharton’s Criminal Evidence, 13th Edition, Vol. 1, § 20:

As a general rule, the defendant must prove that he is within the operation of an exception to a penal statute in order to take advantage of it.
* * * * * *
An exception which is not located in the enacting clause of a statute is treated as a matter of defense in the ordinary case; but an exception found in the enacting clause is regarded as a matter of defense only when the evidence concerning it is peculiarly within the knowledge or at the disposal of the defendant, or, according to a few authorities, only when the statute is interpreted as making the exceptive circumstances an excuse or justification for the defendant’s conduct in such a way as to regard it only as defensive matter. Thus, a number of courts have held that the prosecutor’s case is supported in the first instance by eviof the facts properly stated in the charge, i. e., those facts necessary to bring the defendant under the general prohibition of the enacting clause. The prosecutor need not negative, by proof in advance, exceptions not found in that clause.
* * * * * *
When the enacting clause contains a general prohibition intended by the legislature as describing prima facie the conduct proscribed, and hence the phrase referring to other provisions of the statute is disregarded in the prosecution’s charge, the burden is on the defendant to offer evidence of the exceptive facts. When an exceptive provision referred to in the initial language of the enacting clause is taken to be incorporated with that language as essential to complete the general prohibition of the statute, the burden is upon the prosecution to negative that provision, prima facie, as part of its main case. There is no such burden imposed on the prosecution, however, when the facts hypothesized in the exceptive provision are peculiarly within the knowledge of the defendant, or the evidence concerning them is within his private control.

There being no evidence that Vance qualified for exemption from the provisions of these statutes, which he clearly violated, we affirm the convictions.

DAUGHTREY, J., concurs.

GALBREATH, Judge,

dissenting.

The Christian Church of Faith, a duly chartered religious corporation in Tennessee, ostensibly had operated for its benefit by the appellant, who testified he was ordained as a minister by the Church of Gospel Ministry and the Calvery Grace Christian Church (now operating as the All Faith Temple in Chattanooga, Tennessee), a bingo and lottery parlor until raided by the Memphis Vice Squad on the 26th of December, 1975. The majority affirms his conviction for violating T.C.A. § 39-2032, proscribing professional gambling, and related activities. I dissent.

I fear that the majority wanders into the forbidden thicket of the First Amendment in such a manner that, if a valid intrusion, will raise once again the centuries old inquiry into the propriety of government defining what constitutes an organized religion.

I cannot concur in the majority’s view that the burden of proving a negative, i. e., “[that] no part of the gross receipts” from the church sponsored gaming inured to his benefit, is on the defendant. But even if he did have to in effect prove his innocence, I believe the record demonstrates that charitable works were carried out by the church and the defendant testified on cross-examination when asked what happened to money derived from gambling activity, “It went into the general fund of the church.” When pressed further and upon being asked into whose pockets the money went, the defendant rather picturesquely replied, “It went into the church’s pocket.”

The majority’s opinion finds that the appellant failed to bring himself into the exception found in T.C.A. § 39-2033(8) and quotes at length from Wharton’s Criminal Evidence, 13th Edition, Vol. 1, § 20. However, the majority fails to quote all of that section especially where it is pointed out that:

“By weight of authority, when evidence appears which tends to bring the defendant within an exception not located in the enacting clause, the burden of proof is on the prosecution, on the whole case, to overcome that evidence beyond a reasonable doubt. Opposing decisions would place the burden of proof on the defendant to establish the exceptive facts by a preponderance of the evidence. Some of the decisions which might otherwise be cited to support the view that the technical burden of proof is on the defendant should be distinguished because of the wording of the particular exception. When words occur in a defensive exception, such as ‘if it shall appear,’ or ‘if it shall be made to appear,’ or ‘if it shall be proved,’ the frequent inference is that the legislature intended to place the burden upon the party whose place it was to go forward under the exception to establish the facts under it.
******
“As a general proposition, where an exception merely refers to, or carves out, other grades or phases of the same offense, it need not be negatived, whether the reference is made by adverting to other provisions generally, or by an exception of the facts characterizing the other type of the crime.”

This situation on the burden of proof for a statutory defense is similar to the situation when insanity is raised as a defense. There is a presumption of sanity which results in placing the burden of showing insanity at the time of the commission of the crime upon the defendant in the first instance. However, if the evidence raises a reasonable doubt as to the defendant’s sanity, such evidence relieves the defendant of further proof upon the issue and shifts the burden to the prosecution. Collins v. State, Tenn.Cr.App., 506 S.W.2d 179 (1973). .

The law in Tennessee is not clear as to which party has the burden of proving a statutory defense, when that burden is discharged, and when the State must rebut a showing that a defendant comes within a statutory exception. The case cited by the majority is inapposite.

For example, in Griffin v. State, 109 Tenn. 17, 70 S.W. 61, 65 (1902), it is pointed out that on a prosecution for taking any female from her father, etc., without his consent, for the purpose of prostitution or concubinage, an accused may discharge the burden on him of showing the unchastity of the female by introducing enough testimony to raise a reasonable doubt as to her chastity. Although not altogether clear from that opinion, it seems some proof as to the chastity of the female in question was introduced in Griffin so as to provide a basis for the jury to find beyond a reasonable doubt that that woman was chaste.

Other Tennessee cases refer to the rule that where the negation of a fact is peculiarly within the knowledge of the defendant, the burden is on him to establish that fact. See Knowling v. State, 176 Tenn. 56, 138 S.W.2d 416 (1940), Terrell v. State, 210 Tenn. 632, 361 S.W.2d 489 (1962). However, it appears that in both Knowling and Terrell (which is based on Knowling) supra, the defendants failed to present any evidence to cause their initial burden to shift. Consequently, while those cases appear rightly decided, they cannot be relied upon as establishing a rule applicable to where, as in the instant case, the defendant presents enough proof to shift the burden to the State and consequently requires it to prove the point in issue beyond a reasonable doubt. Here the State has failed to show that any “part of the gross receipts” from the gaming were devoted to noncharitable purposes.

Substantial proof was adduced that religious services and charitable works had been conducted by and on behalf of the church, although from the record it is plain that the theory of the State was that the church was of questionable substance and existed only so that gambling could be carried on in its name.

Proof was presented that the church sponsored a recreation center; conducted group meetings with young adults, runaways and drug addicts; that money was given to assist victims of burned homes; that food was provided for the poor; and in one instance, as much as three hundred dollars was donated to one needy person.

Testimony of more orthodox church activities such as services on Sunday and preaching was adduced and none of the proof, to the effect that the church was in fact a church and that its charitable activities were genuine, was, to my view, negated.

The gambling laws of this State permit games of chance to be conducted under certain restrictions specified in T.C.A. § 39-2033(8), exempting churches, among other eleemosynary institutions, from the criminal sanctions imposed on other forms of gaming.

The type of gambling described in the record before us is no more, nor no less, than the activities carried on regularly by many other churches, labor unions, and fraternal and social clubs throughout the State. This limited legalization of gambling was authorized by the General Assembly and so long as an organization falling within the exempt status is the recipient of the proceeds, after deductible expenses from the otherwise unlawful activity, there is no violation involved.

Not involved here is the issue of what sanctions would result if one conducting bingo or other permissible types of gaming for a church or other charitable organization pockets the proceeds so as to defraud the intended recipient of any profits. No such felony as embezzlement or obtaining money under false pretenses has been charged. The State introduced no proof that the appellant pocketed the proceeds from the gambling operation.

What does or does not constitute a church has addressed itself to the conscience of individuals and governments for centuries. The Christian Church of Faith has eviden-tially convinced both the State of Tennessee and the United states Internal Revenue Service that it is, indeed, a church. We do not believe this Court, nor a jury in Shelby County, has the authority to withhold from any organization duly incorporated and recognized by secular authority, as a religious organization, the recognition claimed by the church said to be served by the Reverend Vance. If he is hiding behind a false and hypocritical religious facade, he is among many others who do so for various and plentiful reasons. A Higher Authority than ours will have to judge his sincerity.

The State having completely failed to rebut the prima facie showing by the appellant that he came within the applicable exception, I would reverse the conviction.

      . It is not clear that documents admitted for identification purposes only purporting to establish tax exempt status were in effect at the time of appellant’s arrest.