text:
    STATE of Missouri, Plaintiff-Respondent, v. Ralph Edison PARCEL, Defendant-Appellant.
    No. 10118.
    Missouri Court of Appeals, Springfield District.
    Feb. 1, 1977.
    Motion for Rehearing or to Transfer Denied Feb. 9, 1977.
    Application to Transfer Denied March 14, 1977.

      John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Loren R. Honecker, Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Defendant Ralph Edison Parcel was convicted of felony murder [§ 559.010, RSMo 1969 and sentenced to life imprisonment. In this appeal he challenges the sufficiency of the evidence to support his conviction and claims the trial court committed reversible error in failing to grant him a change of venue from Greene County and in admitting certain evidence at his trial. We affirm.

Defendant’s confederate, Earl Albert Weeks, was earlier convicted in a separate trial of the brutal slaying of 81-year-old Lena Cukerbaum, a rural storekeeper, during the course of a robbery. The essential facts giving rise to the defendant’s conviction are set forth in some detail in State v. Weeks, Mo.App., 546 S.W.2d 567, decided this date, and will not here be repeated except insofar as to rule defendant’s points.

Defendant’s testimony at his trial was, in most respects, corroborative of the state’s principal witness Teitsworth. However, defendant stated he did not enter Mrs. Cuk-erbaum’s store-dwelling, did not participate in the binding and beating of Mrs. Cuker-baum, and remained outside the building serving as a lookout while Weeks was inside. Defendant said Weeks was “in charge” the night of the robbery-murder and gave the orders. He understood the trio was only going to burglarize the Cuk-erbaum store and said he received about $100 from Weeks as his share of the proceeds from the robbery. He admitted that his earlier testimony in support of Weeks’ motion for a new trial was a series of lies induced by his fear of and threats by Weeks.

In his first point defendant does not question the death of Mrs. Cukerbaum but claims there was a lack of evidence to show that the homicide occurred during a robbery. In furtherance of this contention, the defendant argues that we should not consider his testimony in determining the sufficiency of the evidence to support his conviction for felony murder.

In our review we start with the well-established rule of law that “the facts in evidence and the favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the State, and evidence and inferences to the contrary are rejected.” State v. Papin, 386 S.W.2d 355, 359 (Mo.1965). It is also a well-settled rule of law in Missouri that when a defendant offers evidence in his own behalf he waives any objection to the trial court’s overruling his motion for a judgment of acquittal at the close of the state’s case. State v. Hill, 438 S.W.2d 244, 247 (Mo.1969); State v. Wren, 498 S.W.2d 806, 808 (Mo.App.1973). And, when a defendant chooses not to stand on his motion for a judgment of acquittal at the close of the state’s case but presents evidence in his own behalf, the submissibility of the case is determined by an analysis of all the evidence. State v. Sykes, 372 S.W.2d 24, 25 (Mo.1963); State v. Berry, 526 S.W.2d 92, 95 (Mo.App.1975). As this court stated in State v. Chester, 445 S.W.2d 393 (Mo.App.1969), at 395: “However, by testifying in his own behalf he waived any claim of error in overruling his motion at the close of the state’s case [citations omitted] and submis-sibility must be determined upon the entire evidence. [Citations omitted].”

Defendant also suggests his right against self-incrimination was violated by the court’s denial of his motion at the close of the state’s case. This is a novel argument but not the law. If defendant felt the state’s evidence was insufficient, he could have stood on his motion and questioned the matter of submissibility on appeal.

Aside from the foregoing, and for the moment ignoring defendant’s incriminating testimony, the state’s evidence, standing alone, was sufficient to support defendant’s conviction of robbery-murder. The evidence detailed in State v. Weeks, and repeated at defendant’s trial by Teitsworth and other state witnesses clearly demonstrates Teitsworth, Weeks, and defendant Parcel planned their criminal trip to the Springfield, Missouri, area and pursuant to the conspiracy robbed the “rich old lady” and in the process took her life. Teitsworth related conversations between defendant and Weeks as the trio fled the scene of the crime and returned to Iowa. Money and jewelry were missing from the Cukerbaum store-dwelling immediately after the commission of the crime. Weeks and defendant talked of the small amount of money they had obtained and the manner in which Mrs. Cukerbaum was bound and mistreated in an effort to obtain more money. On the day following the Saturday night murder, defendant had $436 in cash (approximately $100 in dollar bills) and a cut-off nylon in his pocket.

The basic elements of robbery are the taking of property of another by violence to his person or by putting that person in fear of some immediate injury to his person. State v. Reynolds, 521 S.W.2d 486 (Mo.App.1975); § 560.120, RSMo 1969. That Mrs. Cukerbaum was subjected to violence is an understatement. The living quarters of her store had been ransacked. The tackle box in which she regularly kept her money was empty and her jewelry was missing. Immediately following the reunion of the Iowa trio, Weeks produced a hat full of money and complained about not getting more from the “old lady.” His statement, as a coconspirator, was admissible against the defendant. State v. Lee, 522 S.W.2d 63, 66 (Mo.App.1975). As the Supreme Court of Missouri said in State v. Deyo, 387 S.W.2d 561 (Mo.1965), at 562: “In view of the fact that there was evidence of a conspiracy, the statements of one of the conspirators were admissible against the other conspirator.”

As earlier noted, we are not limited in our review of the question of submis-sibility to the state’s evidence, although in our opinion it was sufficient. And when defendant’s testimony favorable to the conviction is added, the scales become lopsided on the issue of submissibility of the death of an aged working woman during the course of a violent and savage robbery. The state was not required to prove the defendant committed each and every act that constitutes the criminal offense [State v. Colthrop, 437 S.W.2d 75, 77 (Mo.1969); State v. Reynolds, supra] and defendant Parcel is liable for the actions of his coper-petrator Weeks as well as his own. State v. Young, 490 S.W.2d 28, 30 (Mo.1973). Defendant’s first point is denied.

Defendant next contends the lower court erroneously denied his motions for a change of venue from Greene County. He says the extensive pretrial news coverage by newspapers, radio, and television prevented him from having a fair and impartial trial in that county.

The robbery-murder of Mrs. Cukerbaum occurred the night of November 30, 1974. A preliminary hearing for defendant and Weeks was held January 29, 1975. An information charging the two men with felony murder was filed February 6. They filed their joint motion for a change of venue from Greene County on March 18. A lengthy hearing was conducted on the matter by the Honorable Douglas W. Greene, Division Two, on March 24 and denied. The trial of Weeks began in Division Two on March 31 and concluded April 5.

Because defendant’s motion for a severance from his codefendant had been sustained, his case was transferred to Division Three, the Honorable James H. Keet, Jr., presiding. Defendant on May 5 renewed his motion for a change of venue. As additional grounds he referred to the extensive publicity given the trial of Weeks. Again, a hearing was held (June 30) following which Judge Keet denied the application. Defendant’s trial commenced on July 28 and ended on July 31.

We have carefully examined the nearly 300 pages of transcript of the two hearings and agree with the two trial judges that, contrary to defendant’s allegations, the citizens of Greene County had not been prejudiced by the publicity surrounding the robbery-killing of Mrs. Cukerbaum and the events leading up to the defendant’s trial. As to be expected, the news media reported events as they happened. Media representatives called by defendant and Weeks in their initial hearing uniformly testified they had not broadcast or reported any statements from the authorities relevant to the guilt or innocence of the two men charged or statements concerning any of the evidence or results of laboratory tests about the crime, or any admissions or confessions by the men. At this hearing various citizens of Greene County were called by the state and their testimony, except for one person, negated the allegations of prejudice arising from the complained-of publicity.

At the second hearing, in response to the defendant’s averments of prejudice and introduction of additional news reports of Weeks’ trial, the state called four Springfield residents who had been selected at random and not informed as to reason they had been summoned to court. Three of the witnesses recalled reading or hearing about the crime and Weeks’ trial but remembered little or nothing about either event. The fourth witness did not recall either the crime or the trial.

Rule 30.04, V.A.M.R., and § 545.490, RSMo 1969, provide that in a county such as Greene County, the defendant seeking a change of venue must prove the truth of his allegations of prejudice by competent evidence and the state is authorized to offer rebutting evidence. It has long been the law that the granting of a change of venue pursuant to the foregoing procedure is a matter within the discretion of the trier of the facts [State v. Odom, 369 S.W.2d 173, 180 (Mo. banc 1963), cert. denied, 375 U.S. 993, 84 S.Ct. 634, 11 L.Ed.2d 479 (1964); State v. Messino, 325 Mo. 743, 761, 30 S.W.2d 750, 757 (1930)] and where the trial court, having heard the evidence for and against the application, arrives at a conclusion adverse to granting the change, such ruling is not to be disturbed on appeal unless an abuse of discretion is demonstrated. State v. Barrington, 198 Mo. 23, 85-86, 95 S.W. 235, 255 (banc 1905), appeal dismissed 205 U.S. 483, 27 S.Ct. 582, 51 L.Ed. 890 (1907); State v. Johnson, 522 S.W.2d 106, 110 (Mo.App.1975).

In this appeal the defendant has failed to demonstrate an abuse of discretion by the trial court. His argument in support of this point assumes prejudice by the inhabitants of Greene County by reason of their exposure to news reports of the crime and Weeks’ trial. Such an assumption is not supported by the record. Defendant’s point is denied.

This brings us to defendant’s remaining point. He claims a scarf that was placed in the mouth of the victim should not have been received as evidence because it was gruesome and inflamed the jury. He further argues that a proper foundation was not laid by the state for its admission.

The defendant initially objected to admission of the scarf because it was gruesome and inflammatory. The objection was overruled and the scarf and plastic bag which contained it were admitted as exhibit 35. Later, the state offered this exhibit and three others, at which time defendant renewed his previous objection to exhibit 35 and “to all the exhibits on the grounds of improper foundation.”

Defendant’s generalized attack on the foundation for admitting the scarf does not preserve the question for review. This averment of error was not in his motion for new trial. Furthermore, the scarf was susceptible of positive identification and was so identified by officers as the scarf found in Mrs. Cukerbaum’s mouth. State v. Granberry, 484 S.W.2d 295, 300-301 (Mo. banc 1972); State v. Threat, 530 S.W.2d 41 (Mo.App.1975).

The defendant’s argument that the scarf “discolored with blood and kept in a container fouled with blood” was so gruesome as to outweigh its relevancy cannot stand and we find the trial court did not abuse its discretion by admitting this exhibit.

Demonstrative evidence of this nature is admissible if it throws any relevant light upon a material matter at issue. State v. Evans, 406 S.W.2d 612, 617 (Mo.1966). One issue was whether Mrs. Cukerbaum was robbed by force and violence to her person, and the exhibit was admissible to demonstrate this element of robbery. State v. McRoberts, 485 S.W.2d 70 (Mo.1972). It was also relevant to the state’s theory that more than one person was involved in the binding by tape and wire of Mrs. Cuker-baum’s hands and legs and gagging her while the place was ransacked.

The transcript shows the trial court examined the exhibit prior to its admission. We have viewed the exhibit and assume the brown discoloration found on the scarf and plastic bag is dried blood of the victim. Nevertheless, we agree with the trial court that its probative value outweighed any gruesomeness and prejudicial effect. We also observe the exhibit was neither passed to nor flaunted before the jury. State v. McRoberts, supra.

The information, charging defendant with felony murder,, was sufficient. The verdict was responsive and in proper form. Allocution was granted. The court determined defendant was subject to the Second Offender’s Act and imposed sentence and entered judgment.

The judgment is affirmed.

All concur.

      . § 559.010, RSMo 1969, was repealed by Laws 1975, p. -, House Bill No. 150, which became effective September 28, 1975. A new felony murder statute, what is now § 559.007 RSMo Supp. 1975, was enacted. Defendant Parcel and his accomplice, Earl Albert Weeks, were tried before the effective date of the new law.

      . Inter alia, Weeks’ motion for new trial, filed in his behalf by his lead trial attorney, a member of the Illinois bar, alleged Parcel was prevented from testifying in Weeks’ behalf by Parcel’s Springfield, Missouri, lawyer who assisted in Weeks’ trial. At an evidentiary hearing Parcel so testified and stated Weeks was not with Teitsworth and him the fatal weekend. At his trial Parcel recanted this testimony. According to Parcel, Weeks was a “karate expert” and “he was always talking about gangster people he knows in Chicago, Quad Cities, Rock Island, Davenport, Moline, Illinois, area.”

      . Extensive voir dire by court and counsel of the 120 prospective jury panel members revealed roughly one-half had heard of the Cuk-erbaum murder in the media. All those who indicated they had formed an opinion based on news coverage were immediately excused by the court. Many of the panel members either had not heard of the crime or the Weeks’ trial, or remembered very little about these events. Panel members who indicated detailed familiarity with the news coverage of the murder and trial were excused by the court. These were two in number.


source: Caselaw Access Project

author: HENRY, Justice.

license: Public Domain

text:
    GRUNDY COUNTY, Appellant, v. Earl Ray DYER, Appellee.
    Supreme Court of Tennessee, Middle Section.
    Feb. 14, 1977.

      Harry W. Camp, Camp & Roney, McMinnville, for appellant.
    Walter H. Griswold, County Atty. for Grundy County, McMinnville, for appellant.
    Robert S. Peters, Swafford, Davis & Peters, Winchester, for appellee.
   OPINION

HENRY, Justice.

This civil action arises under §§ 8-832, 8-834, T.C.A. and primarily involves the liability of a county under these statutory provisions for the acts of a deputy sheriff.

The trial judge sustained the motion of the plaintiff for a summary judgment, awarded judgment against Grundy County, sustained the motion of the bonding company for a judgment on the pleadings, and dismissed Grundy County’s third party complaint.

We affirm so much of the trial judge’s action as sustained the bonding company’s motion for judgment on the pleadings and the ensuing dismissal of Grundy County’s third party complaint. We reverse the action of the trial judge in sustaining the plaintiff’s motion for summary judgment.

I

The Pleadings

Plaintiff was arrested for public drunkenness, while attending the Grundy County Fair at Altamont, by two deputies sheriff. En route to the county jail they stopped the car and made an unwarranted and unjustified attack on plaintiff, beating him with a flashlight, a slap-jack and fists. Plaintiff suffered various injuries and incurred expenses in connection with medical treatment.

He instituted suit in the United States District Court for the Eastern District of Tennessee against the two deputies, the Grundy County Sheriff and Grundy County. According to the rather vague allegations of the complaint the District Court “declined jurisdiction over the defendant Grundy County.”

The only part of the Federal Court proceedings exhibited with the complaint is the final judgment of the court. From this document, it appears that the court (1) awarded plaintiff judgments against each defendant deputy in the sum of one thousand, two hundred and fifty (1,250.00) dollars compensatory damages and the sum of two thousand, five hundred (2,500.00) dollars punitive damages (total $3,750.00), and (2) dismissed the suit as to the sheriff. No mention is made of Grundy County.

Plaintiff then filed suit against Grundy County in the Circuit Court at Altamont, seeking to recover the entire amount of the Federal Court judgment. From the affidavit of plaintiff, appended to his motion for a summary judgment, it appears that the defendant deputies have satisfied the judgment to the extent of twenty-five hundred ($2,500.00) dollars.

The suit thus stands as an effort to charge Grundy County with payment of the remaining five thousand ($5,000.00) dollars.

Grundy County filed its answer (1) pleading governmental immunity except as modified by §§ 8-833 and 8-834, T.C.A., (2) exhibiting a copy of the Sheriff’s surety bond, (3) asserting that its liability, if any, is limited to the amount of the bond, and (4) pleading res adjudicata (asserting that the Federal Court issues were resolved in favor of the county). The County, pursuant to Rule 14.01, Tenn.R.Civ.P., filed its third party complaint against the surety bonding company, taking the position that if plaintiff should recover against the County, it would be entitled to a judgment over against the bonding company.

Prior to the submission of any pleading by the bonding company, the plaintiff moved for a summary judgment, with a supporting affidavit, the primary value of which is to disclose partial satisfaction of the Federal Court judgment. The motion for summary judgment proceeds upon the basis that there is no genuine issue of fact and in support merely summarizes certain portions of the complaint.

The Boston Old Colony Insurance Company, the surety on the Sheriffs appeal bond moved to dismiss on the basis of the provisions of § 8-832. See Sec. Ill, supra.

Next, in point of time, Grundy County moved for a judgment on the pleadings seeking to have the original complaint dismissed, asserting that § 8-834, T.C.A. is void for vagueness. See Sec. IV, infra.

These pleadings led to the action of the trial court as hereinabove set forth. On motion for a new trial, Grundy County (1) complained of the entry of judgment against it in the amount of five thousand ($5,000.00) dollars, pursuant to summary judgment and (2) asserted that Grundy County “has never had a day in court to dispute the amount of damages”, since the County “was not a party to the Federal lawsuit at the time damages were assessed.

II

Motion to Dismiss

Appellee, Dyer, moved to dismiss the appeal because the motion for a new trial and the appeal bond were prematurely filed.

The technical record shows that the hearing on the motions for summary judgment and for judgment on the pleadings was held on March 1, 1976. The order was not signed until March 17, 1976 and not filed until March 20, 1976. In the meantime, a motion for a new trial was filed on March 16, 1976. It was prematurely filed.

The record shows that the motion for a new trial was heard on July 8, 1976; that the order overruling it was signed on July 19,1976 and filed with the Clerk on July 24, 1976. In the meantime the appeal bond was executed on July 13, 1976 and filed with the Clerk on July 16,1976. It also was prematurely filed.

These situations are reflective of the inherent logistical difficulties encountered by the “country lawyer.” In this case all court proceedings were conducted in Altamont; the presiding judge lives in Dunlap, counsel for the appellant practices in McMinnville, and counsel for appellee practices in Winchester.

It would be manifestly unjust, absent prejudice to the complaining party, to dismiss this appeal and penalize a lawyer and his client for promptness.

We overrule the motion to dismiss.

Ill

Liability of surety for acts of Deputy Sheriff

It is necessary that we address this question, as a prelude to discussion of the contentions of the parties. The act under consideration is carried forward in the Official Code in pertinent part as follows:

8-832. Liability for wrongs of deputies —Limitation.—No sheriff, whether elected or appointed, nor any surety on his bonds, shall be liable for any wrongs, injuries, losses, damages or expenses incurred as a result of any act or failure to act on the part of any deputy appointed by said sheriff, whether said deputy is acting by virtue of office, under color of office or otherwise.
8-833. Suits against counties for wrongs of deputies. — Anyone incurring any wrong, injury, loss, damage or expense resulting from any act or failure to act on the part of any deputy appointed by the sheriff may bring suit against the county in which the sheriff serves; provided that the deputy is, at the time of such occurrence, acting by virtue of, or under color of his office.
8-834. Waiver of governmental immunity—Limit.—The governmental immunity of the county in which the said sheriff serves is waived for purposes of § 8-833, but to an extent not in excess of the amount of the surety bond executed for that county’s sheriff pursuant to § 8-803.

Chapter 19, of Title 8, T.C.A. governs the official bonds of all state and county officers required by law to furnish official bonds. § 8-1920 reads as follows:

8-1920. Obligations covered by bonds. —Every official bond executed under this Code is obligatory on the principal and sureties thereon—
(1) For any breach of the condition during the time the officer continues in office or in the discharge of any of the duties of such office.
(2) For the faithful discharge of the duties which may be required of such officer by any law passed subsequently to the execution of the bond, although no such condition is expressed therein.
(3) For the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office as by the failure to perform, or the improper or neglectful performance, of the duties imposed by law.

It is evident that there is an apparent and irreconcilable conflict between § 8-1920 making the surety company liable for “any wrongful act committed under color of his office”, etc., and § 8-832 providing, in substance, that neither the sheriff nor his surety shall be liable for the acts of his deputy, even though “acting by virtue of office, under color of office or otherwise.”

Sec. 8-832, as a subsequent and specific act, must control. See e.g., Strader v. United Family Life Ins. Co., 218 Tenn. 411, 403 S.W.2d 765 (1966).

Applying the controlling statute, § 8-832, we hold that the trial judge correctly sustained the motion of Boston Old Line Insurance Company, the surety on the sheriff’s official bond, for a judgment on the pleadings, and properly dismissed the third party complaint.

IV

Constitutionality

A principal thrust of appellant’s position in this Court is that § 8-834 is void for vagueness. Counsel persuasively argues that the entire act (Chapter 800, Acts of 1972) was “written by several members of a committee which never met”, and urges that Sec. 1 (§ 8-832, T.C.A.) and Sec. 3 (§ 8-834) are in violent conflict. Counsel concedes that each section, standing alone, is clear, but when all are read together, the “whole scheme becomes nonsense” and “should be declared void for vagueness.”

We agree with counsel that the act is not a model of clarity and its draftmanship leaves much to be desired. However, when read in the light of the evident purpose of the legislature, we think all ambiguity is resolved.

It is clear that § 8-832, T.C.A. operates to relieve the sheriff and his surety from liability for the acts of his deputy whether the deputy is “acting by virtue of office, under color of office or otherwise.”

It is equally clear that § 8-833, T.C.A. authorizes suit against the County based upon the acts of a deputy sheriff if, but only if, the deputy is at the time “acting by virtue of, or under color of his office.”

The ensuing section waives the immunity of the county as to such suits but only to the extent of the amount of the sheriff’s surety bond.

Section 8-834, T.C.A. measures the extent of liability, but does not specifically point to the source of the payment. However, the obvious source is the county general fund; otherwise there is no immunity and the express pro tanto waiver would serve no useful purpose.

These Code sections came under our scrutiny in O’Neal v. DeKalb County, 531 S.W.2d 296 (Tenn.1975). There we pointed out that § 8-833 sanctions suits against counties for the misconduct of deputies and represents a waiver of governmental immunity.

These Code sections are fairly analogous to § 6-640, which reads, in pertinent part, as follows:

6-640. Indemnification for employees sued for damages in the course of their employment — Exceptions—Limits of liability. — Whenever any county sheriff and his deputies or any employee member of a fire or police department of a municipal corporation or other political subdivision of the state of Tennessee shall be sued for damages arising out of the performance of his official duties and while engaged in the course of his employment by such governmental agency, such governmental agency shall be authorized and required to provide defense counsel for such employee in such suit and to indemnify him from any judgment rendered against him in such suit; provided, however, that such indemnity shall not extend to any judgment for punitive damages or for damages arising out of any willful wrongdoing by said employee and; provided, further, that such municipal corporation or other political subdivision shall have notice of such suit.

The instant suit could not stand under § 6-640 since punitive damages are involved; however, this does not preclude an analytical comparison.

It is significant to note that § 6-640 was enacted as Chapter 782 of the Public Acts of 1972, while § 8-832, et seq. were enacted as Chapter 800, by the same legislature and at the same session.

We held in City of Memphis v. Roberts, 528 S.W.2d 201 (Tenn.1975) that § 6-640 provided a form of public insurance against theretofore immune activities and constituted a partial waiver of governmental immunity.

We think, when consideration is given to the wording of the sections themselves, and to the context in which they were adopted, that Chapter 800, of the Public Acts of 1972, carried forward into the Official Code as §§ 8-332, 8-333 and 8-834, is not impermissibly vague and is constitutional.

V

Grundy County’s Day in Court

The remaining assignments are critical. In general, they charge the trial court with error in “entering judgment against Grundy County based on a judgment in another court in another action to which Grundy County was not a party” and thus depriving the county of “a day in court to contest the amount of damages.”

We think that the statutory scheme basically contemplates a direct action against the county. We do not feel, however, that it operates to preclude an action on a judgment obtained against a deputy in another jurisdiction, provided, proof of liability and damages are determined in an adversary proceeding with full opportunity to the county to participate. We cannot conceive of the county being held liable on a judgment rendered in a case in which it did not participate fully and as an adversary.

Again we look to § 6-640, T.C.A. and to a recent decision of this Court, Banks v. City of Mason, 541 S.W.2d 143 (Tenn.1976). There a judgment was obtained in Federal Court against a city policeman and suit was instituted in the state court to enforce the collection of the judgment against the City of Mason. Mason was not a party to the Federal Court action but did provide counsel as required by § 6-640, T.C.A. In holding that the City of Mason was entitled to litigate liability in a suit brought pursuant to § 6-640, we said:

It is elementary that a municipality must be provided the right to deny liability for a judgment against the employee on the basis of the statutory defense of willful misconduct, and the courts must be open to the assertion of that defense in a suit brought subsequent to the tort action. This is necessarily true whether or not willfulness is asserted or adjudicated in the tort action.
541 S.W.2d at 146.

The rationale of Banks v. City of Mason is convincing and controlling.

We sustain the assignments relating to this issue and hold that the trial judge erred in sustaining plaintiff’s motion for a summary judgment and in awarding judgment against Grundy County. On remand, Grundy County may litigate liability and damages to the same manner and to the same extent as if the Federal Court judgment had not been awarded. Be it remembered that the Circuit Court of this state, acting under § 8-832, et seq., constitutes a forum wherein the plaintiff could obtain full and adequate relief. He elected a forum in which the county was not a proper party and could not participate since it is not a “person” or a suable entity within the meaning of 42 U.S.C. § 1983. See Note 121, to 42 U.S.C.A. § 1983.

We can appreciate the manifest advantage of a suit in Federal Court, free from local influences and pressures; however, we are compelled to hold that Grundy County is entitled to its day in court.

On remand, a viable issue will also be whether the deputy was “acting by virtue of, or under color of his office”, a condition precedent to the recovery of any judgment against Grundy County. This is a substantial issue of fact.

Affirmed in part; reversed in part; remanded.

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

      . These are the allegations of the complaint and, under the present posture of the case, we take them to be true.

      . Apparently jurisdiction was invoked pursuant to 42 U.S.C. § 1983.

      . Chapter 782 was passed April 14, 1972 and signed by the Governor on April 19, 1972. Chapter 800 was passed April 7, 1972 and signed by the Governor on April 24, 1972. See bound volume, Public Acts of 1972.


text:
    FREEMAN’S FURNITURE COMPANY et al., Appellants, v. Walter C. LARGE, Appellee.
    Supreme Court of Tennessee, Eastern Division.
    Feb. 14, 1977.

      Dennis L. Babb, Knoxville, for appellants.
    Fred L. Myers, Jr., Newport, for appellee.
   OPINION

HENRY, Justice.

This is a workmen’s compensation action in which the only issue is whether the injured worker was an employee or a casual laborer. The Chancellor found that the claimant was an employee, and awarded benefits. We reverse.

The basic facts are not in dispute. Walter C. Large, the claimant, was engaged by the defendant, Freeman’s Furniture Company, to paint a building owned by the defendant. After some initial discussion, during which Large refused to take the job on a contract basis, it was agreed that he would be paid $3.50 an hour. Large kept his own time. Neither income tax nor social security was withheld from his wages. He worked almost exclusively during the hours the furniture store was open. Large supplied his own brushes and ladder, while the rest of the necessary equipment and supplies were provided by the defendant. In addition to the painting, Large did some remodeling for the defendant. The usual maintenance work of defendant’s employees included neither painting nor remodeling. After he had been employed for approximately five weeks, Large injured his back while he was working.

We believe the conclusion inescapable that Large was a casual employee within the meaning of Section 50-906(b), T.C.A. As a general rule, an employee employed for the exclusive purpose of painting or remodeling a building, when such painting or remodeling is not part of the normal operations of the employer’s business, is a casual employee under the statute. Travelers Insurance Co. v. Dozier, 219 Tenn. 525, 410 S.W.2d 909 (1966). There is no doubt that painting was not the kind of.maintenance customarily carried out by Freeman’s Furniture. There was undisputed testimony that the building had not been painted for more than twenty years.

This rule is not without its exceptions. As we have repeatedly noted, each case must be judged on its own facts. It is possible for the employer to clothe the entire transaction with all the indicia of the employer-employee relationship, thus converting what would normally be a casual employment status into an employer-employee relationship. Garan, Inc. v. Surratt, 525 S.W.2d 137 (Tenn.1975). That did not occur in this case.

We recognize that “this Court does not re-weigh the evidence in workmen’s compensation cases and that our sole, legitimate concern is the presence of any material evidence to support the award.” Garan, Inc. v. Surratt, supra, at 138. However, that does not mean that we consider ourselves bound by the conclusions drawn by the trial judge when, as here, the basic facts are undisputed. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515 (Tenn.1968). It is our opinion that there was no material evidence presented to support the finding of the trial judge in this ease.

The judgment of the Chancellor is reversed, and the cause dismissed, at the cost of appellee.

COOPER, C. J., and FONES, BROCK and HARBISON, JJ., concurring.


text:
    James C. DAVIS, Appellant, v. GULF INSURANCE GROUP et al., Appellees.
    Supreme Court of Tennessee, Eastern Division.
    Feb. 14, 1977.

      J. Troy Wolfe, Jr., Herbert A. Thornbury, Chattanooga, for appellant.
    E. Blake Moore, Chattanooga, for appel-lees.
   OPINION

HENRY, Justice.

This is an appeal from a decision dismissing appellant’s workmen’s compensation action against his employer and the employer’s insurance carrier. We affirm the Chancellor’s decision in all respects. In addition, we remand for a hearing to determine expenses incurred by the appellees in defending this appeal, including court costs and reasonable attorneys’ fees. On its own motion this Court orders these expenses to be assessed against appellant as damages for a frivolous appeal under § 27-124, T.C.A.

I

Appellant James Davis, a tractor-trailer driver, alleges that on May 14, 1973, while stopped at a Knoxville truck stop, he injured his back in pulling a lever to move the tandem axle on his trailer. Davis says that on suffering the injury he returned to his Chattanooga home and visited his family physician. The following day Davis alleges he attempted to again begin his haul but was forced by the pain of his injury to stop driving and leave the truck at the Knoxville truck stop. Although the truck was stolen from the truck stop, Davis continued hauling for his employer, making three long distance trips in the next four weeks, including hauls to Oklahoma and El Paso, Texas. In mid-June, Davis was fired by his employer. Testimony showed and the Chancellor found that on June 19, 1973, Davis notified his employer of the injury allegedly suffered on May 14. This notification was made after the 30 day period in which such a claim must be filed under § 50-1001, T.C.A. In a discovery deposition Davis said he had been unable to work since the accident, although at trial he admitted working full time for at least two different employers since the accident. Davis further admitted at trial that he had told one employer that he had never filed a workmen’s compensation claim nor suffered a back injury.

The Chancellor dismissed the action because Davis had “failed to carry the burden of proof.” He found “plaintiffs explanation of the events surrounding the alleged occurrence [of the injury] not entirely plausible” and his testimony “impeached on the record.”

On appeal Davis urges two errors: first, that the Chancellor erred in finding that notice was given to the defendant employer on June 19. Davis argues that if notice had been given on June 19, defendant employer would not have accepted the claim because it would have been made more than 30 days after the injury. Appellant Davis points out that defendant admits in its answer accepting the claim. Appellant cites no other evidence, however, that might show notice was given on any other date. Secondly, Davis argues that the Chancellor erred in holding that he failed to carry the burden of proof.

This Court has repeatedly pointed out that on factual issues in workmen’s compensation appeals it is concerned solely with whether any material evidence supports the findings below. Dozens of Tennessee cases, many of them recent, support this proposition. Thus this Court cannot itself find facts or evaluate the credibility of witnesses. Inscore v. Pet Milk Co., 192 Tenn. 593, 241 S.W.2d 581 (1951); W. S. Dickey Mfg. Co. v. Moore, 208 Tenn. 576, 347 S.W.2d 493 (1961); Rice Bottling Co. v. Humphreys, 213 Tenn. 8, 372 S.W.2d 170 (1963); Cassell Bros., Inc. v. Cole, 519 S.W.2d 796 (Tenn.1975) (and other cases cited therein.) And we do not reweigh the evidence; in fact, even if the evidence preponderates against the findings below, the decision will be upheld so long as any material evidence supports it. Lynch v. La Rue Canning Co., 198 Tenn. 101, 278 S.W.2d 85 (1954); Morrison & Bituminous Cas. Corp. v. James, 201 Tenn. 243, 298 S.W.2d 714 (1957); London & Lancashire Indemnity Co. of America v. Starcher, 202 Tenn. 278, 304 S.W.2d 87 (1957); Stubblefield v. Hot Mix Paving Co., 215 Tenn. 16, 383 S.W.2d 44 (1964); Reedy v. Mid-State Baptist Hosp., 210 Tenn. 398, 359 S.W.2d 822 (1962); Strader v. United Family Life Ins. Co., 218 Tenn. 411, 403 S.W.2d 765 (1966).

In light of this settled law, appellant’s contentions are obviously without merit. First, the Chancellor’s finding that notice was given to the employer on June 19 is clearly supported by material evidence, including the trial testimony of several of defendant employer’s witnesses. Appellant’s attack on this finding, on the other hand, is based not on any conflicting testimony, but merely on an inference drawn from defendant’s answer. Moreover, because the Chancellor’s decision is not based on the issue of notice, any error in fixing the date of notice would be harmless.

Appellant’s second assignment of error, that the Chancellor erred in finding appellant failed to carry the burden of proof, is plainly not for this Court to decide. If the Chancellor found Davis’s story unbelievable and “impeached on the record” and his case therefore not proved, this Court will not disturb that finding.

Furthermore, after a careful examination of the record, we find no error that appellant might have raised on appeal. Davis’s appeal is therefore dismissed as meritless.

II

The appeal in this case goes beyond mere meritlessness, however. It has no reasonable chance of success, for reversal of the decision would require revolutionary changes in fundamental standards of appellate review. This Court would have to decide that, contrary to all previous cases, it can judge both the credibility of witnesses and the weight of the evidence. Such changes would in effect institute de novo review on the record — a standard of review this Court has explicitly rejected. Lee v. Aluminum Co., 184 Tenn. 287, 198 S.W.2d 639 (1947); Tidwell v. F. W. Woolworth Co., 185 Tenn. 110, 203 S.W.2d 375 (1947); Atlas Powder Co. v. Leister, 197 Tenn. 491, 274 S.W.2d 364 (1954). There is no basis for believing that such revolutionary changes might take place and, as previously noted, dozens of Tennessee cases support the present standards of review in workmen’s compensation appeals.

In light of these decisions, this appeal is recognizable on its face as devoid of merit. It presents no justiciable questions — neither debatable questions of law nor findings of fact not clearly supported. It is difficult to believe that such an appeal could serve any purpose other than harassment. It is equally difficult to believe that counsel could honestly believe in its merits, especially when the record shows appellant’s veracity as a witness to be thoroughly impeached. In the words of Abraham Lincoln this appeal is “as thin as the boiled shadow of a homeopathic pigeon.”

Successful litigants should not have to bear the expense and vexation of groundless appeals. Nor should this Court, which is becoming increasingly burdened by direct appeals, be saddled with such cases. And we have warned that workmen’s compensation suits are particularly susceptible to this abuse: “The calendar of this Court is clogged with workmen’s compensation cases. In many instances the appeals are wholly frivolous.” Bishop Baking Co., Inc. v. Forgey, 538 S.W.2d 602, 604 (Tenn.1976). See also, Employers Ins. Co. of Alabama v. Heath, 536 S.W.2d 341 (Tenn.1976). The Tennessee Legislature obviously intended the frivolous appeals statute, § 27-124, T.C.A., to discourage such appeals and to redress the harm to harassed appellees.

While this Court recognizes that § 27-124, T.C.A. must be interpreted and applied strictly so as not to discourage legitimate appeals, this case is so lacking in justiciable issues that we have no difficulty finding it frivolous within the meaning of the statute. On remand, therefore, the Chancellor will tax appellant with court costs and all of appellees’ expenses, including attorneys’ fees, reasonably incident to this appeal.

Affirmed and remanded for further proceedings consistent with this opinion.

COOPER, C. J., and FONES, BROCK and HARBISON, JJ., concurring.


author: SHRIVER, Judge.

text:
    Earl SIMMONS et al., Plaintiffs-Appellees, v. Billy HITT et al., Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Feb. 27, 1976.
    Rehearing Denied June 25, 1976.
    Certiorari Denied by Supreme Court Nov. 29, 1976.
    Charles W. Bone, Goodall & Bone, Gallat-tin, for plaintiffs-appellees.
    F. Clay Bailey, Jr., Dearborn & Ewing, Nashville, for defendants-appellants.
   OPINION

SHRIVER, Judge.

This suit involves a non-contributory profit sharing pension plan and the right of the plaintiffs to recover contributions made by the employer for their benefit and, particularly, a provision of such plan whereby it is provided that an employee leaving the employment of the employer and entering into direct competition with the employer forfeits his benefits under the plan.

The case came on for hearing on February 13, 1975 before Chancellor C. Allen High, without the intervention of a jury, on the pleadings, exhibits, testimony of witnesses in open court and the entire record and resulted in a Memorandum Opinion, implemented by a Final Decree in favor of the plaintiffs, awarding judgment for the plaintiff Earl Simmons in the amount of $6,323.05; a judgment in favor of Gene Pike for a total of $6,035.90; and a judgment in favor of plaintiff Joe Smith for a total of $3,759.68, from which judgment and decree the defendants have appealed and have assigned errors.

The Proceedings Below

The original complaint herein was filed on May 17, 1973 and, in pertinent part, alleges that plaintiff Earl Simmons became an employee of B. Hitt Electric Company in May 1958 and continued as such employee until June 1972, and was a participant in the profit sharing plan in question here. It is further averred that plaintiff Joe Smith became an employee of B. Hitt Electric Company in April 1956 and continued until 1961 when he left the employment for a brief three month period, returning at the request of defendant Billy Hitt and, after said return, Joe Smith continued as an employee until July 1972. He also was a participant in the profit sharing plan. It is further alleged that plaintiff Gene Pike became an employee of B. Hitt Electric Company and the Jim Hitt Electric Company on the 14th day of November, 1955, and continued as such employee until his retirement on the 2nd day of May, 1971, and was a participant in the profit sharing plan in question.

It is averred that Billy Hitt, James R. Hitt and Maxine C. Hitt are defendants in their capacity as Trustees of the B. Hitt Electric Company Profit Sharing Plan.

Certain provisions of the said profit sharing plan are alluded to and discussed in the bill of complaint and it is alleged that, by letter dated April 17, 1973, the individual plaintiffs were notified by defendant Billy Hitt, as Chairman of the Administrative Committee of the B. Hitt Electric Company Profit Sharing Plan, that their benefits which had previously accrued were being revoked because of a term in the profit sharing plan providing that the right to receive such benefits would be terminated if the participant entered the employment of a competitor.

(The Chancellor found that the foregoing allegations were sustained by the record and we concur.)

It is alleged that the foregoing provisions terminating the benefits of a participant who entered into a competitive business amounts to, an unlawful and unjust restraint from engaging in a lawful profession, trade or business, and, therefore, plaintiffs seek the judicial declaration of the Court that said provisions violate public policy and are void.

Certain allegations as to mismanagement of the fund were made but are no longer insisted on.

It is further alleged that the terms and conditions of the profit sharing plan were never fully explained to the plaintiffs and that this was a violation of their rights and a violation of the duties of the Trustees of the fund.

The prayers of the bill are:

(1) For process;

(2) For a decree declaring that the attempted revocation of the benefits of plaintiffs in the plan is void as against public policy;

(3) For an accounting of the fund by the Trustees;

(4) That the profit sharing plan be abolished and the individual plaintiffs be allowed to receive immediately all of their accrued benefits under the plan, or, in the alternative, that the Court appoint independent and responsible Trustees or a receiver for said trust funds to manage same in accordance with the guidelines of the Court.

(5) For recovery of attorneys’ fees and the costs of this cause.

Counsel for the appellants state that the parties have agreed and that the allegation of mismanagement of the fund is not an issue and have stipulated the respective financial interests of the plaintiffs in the plan at the time they left the employment of the Electric Company.

Defendants in their Answer deny that the forfeiture provisions of the plan are invalid or in restraint of trade and violative of public policy, saying that the plaintiffs made no contribution to the plan and that each plaintiff contacted customers of the defendants immediately prior to leaving defendants’ employment and that plaintiffs, upon leaving, immediately commenced doing work for these customers, hence, that the plaintiffs were in direct violation of the provisions of the agreement against entering into direct competition with the defendant employers, the penalty for such conduct being the loss of benefits under the plan.

Chancellor’s Memorandum

The Chancellor in his Memorandum Opinion found:

That the Profit Sharing Plan was established December 31, 1958; employees to begin receiving benefits thereunder when they reached age fifty; if discharged for dishonesty or disloyalty he forfeited the entire amount in his account; that at the end of each year Participants would have a vested non-profitable interest in five percent of the amount in his account; that the Plan provided that no amendment “(c) shall reduce the interest of a Participant in the trust property as of the time of his right to enjoy such interest without written consent of the Participant.”; that on December 28th the Plan was rewritten changing the forfeiture provisions; that by letter of April 17, 1973 plaintiffs were notified that the Plan was being abolished as of the end of 1973 and all benefits revoked as per Section 10.07 of the Plan; that all three plaintiffs were Participants in the Profit Sharing Plan; that all three left their employment with defendants and went into direct competition with their former employer in violation of the forfeiture clause, Section 10.07 of the Amended Plan.

We concur in the foregoing findings of fact by the Chancellor.

Chancellor’s Conclusions of Law
“1. A non-contributory pension and profit sharing plan is not a gratuity, but is an offer of additional deferred compensation and the offer is accepted by the employee remaining in the employment of the employer, which is sufficient consideration to support the employer’s promise to pay the benefits, and is, therefore, a contract enforceable by the employee.
2. The forfeiture clause added by the 1962 amendment does not apply to any benefits accruing to the plaintiffs under the plan prior to the effective date of the amendment.
3. Forfeitures not being favored those claiming them have the burden of establishing the forfeiture. Therefore, the Court holds that the plaintiffs are entitled to all benefits that accrued prior to the plaintiffs’ specific knowledge of the amendment adding the forfeiture clause.”

Subsequent to the filing of the foregoing Memorandum and Findings of Fact by the Chancellor, the parties entered into a Stipulation entitled “Stipulation in Lieu of Reference to the Master.” Said Stipulation is to the effect that:

Plaintiff Earl Simmons had total benefits accrued in the B. Hitt Electric Company Profit Sharing Plan on December 20, 1969 of $8,087.59, with fifty percent vested, and is entitled to a judgment in the amount of $4,043.80, and had a further balance of $4,558.49, same being fifty percent vested, for a total judgment of $6,323.05;
That plaintiff Gene Pike had benefits in the Profit Sharing Plan which entitled him to a judgment of $6,035.90;
That plaintif Joe Smith is entitled to a judgment of $3,759.68.

The assignments of error do not question the above stipulated amounts.

Assignments of Error

There are three assignments of error which are as follows:

“I. The Chancellor erred in holding that the forfeiture provision of the B. Hitt Profit Sharing Plan was applicable to the plaintiffs, former employees, only upon their having specific knowledge thereof, where they had knowledge of the Plan, which they were told was at all times available for them to read and they failed to do so.
II. The Chancellor erred in holding that a profit sharing plan was an implied compensation for the employees continued employment and not a gratuity, and then awarding the benefits thereof to employees who leave the employer, taking its customers.
III. The Chancellor erred in construing an amendment to the forfeiture clause of the B. Hitt Profit Sharing Plan as a reduction in the prior rights of an employee to enjoy the benefits of the Plan.”

Our Conclusions

The original B. Hitt Electric Company Profit Sharing Plan which is Exhibit 8 and which became effective December 31, 1958, is a very long and involved document. It is summarized in the brief of counsel for the appellees and we find the summary substantially accurate.

It will not be necessary to examine and comment on all of the provisions of this document, but certain pertinent provisions should be noticed.

Article IV, Section 3, of the original plan provides:

“3. In no event shall the principal or income of this Trust be paid to or revert to the COMPANY, or be used for any purpose whatsoever other than the exclusive benefit of the Participants or their beneficiaries.”

Article VI, Section 1, provides:

“1. Notwithstanding anything to the contrary, if the COMPANY shall discharge a Participant for dishonesty, or disloyalty, the Participant shall forfeit the entire amount in his account and shall be entitled to no benefits under this Plan, and all references herein to non-forfeita-ble interests shall be subject to this exception.”

In the 1962 amendment the foregoing provision was changed so as to provide that no part of the individual account balance shall be payable to any participant following a determination by the Committee that he has committed an act of fraud or dishonesty, been convicted of a felony or a misdemeanor involving moral turpitude, or has entered employment in direct competition with the participating employer.

Article VI, Section 2, provides:

“At the end of his first year in the Plan, a Participant shall have a vested and non-forfeitable interest of five (5%) percent of the amount credited to this account. At the end of each additional full year of continuous service, an additional five (5%) percent of the amount shall become vested. . .

Under the amendment Article X, Section 1, was made to provide that the Company reserves the right to amend the trust agreement at any time and to any extent and in any manner that it may deem advisable by delivery to the Trustees of a certified copy of a resolution of the Board of Directors making such amendment, thus, binding all participants who claim an interest thereunder.

Article X, Section 2, provides:

“In the event of termination of the Plan, or of a discontinuance of contributions required hereunder, the Participants, former Participants, and beneficiaries of deceased Participants, shall have a fully vested interest in the amount credited to their respective accounts at the time of such termination or discontinuance.”

When, on December 28, 1962, the entire Plan was amended and rewritten, no effort was made by the defendants to advise the employees of this action and the consent of the employees was not obtained.

Section 5.01 of the Amended Plan provides that all benefits due the Participants are payable at the end of sixty days following termination of employment of the Participant and receipt by the Committee of an application for benefits, or at such earlier date as the employer may direct.

Section 6.01 of the Amended Plan is significant. It provides as follows:

“. . No amendment, unless it is necessary in order to meet the requirements of any State or Federal law or regulation, shall operate to deprive any Participant of any benefits which have vested in him prior to such amendment; and that no amendment shall have the effect of re-vesting in any Participating Employer any portion of the Fund.”

It is stipulated that plaintiffs have vested benefits prior to the 1962 Amendment, hence, is conclusive as to such accrued interests.

As to questions of fact shown by this record, we have no doubt that, as was found by the Chancellor, the plaintiffs herein did leave the employ of the Electric Companies for which they worked with the purpose of engaging in direct competition with the employer and, in fact, did engage in such direct competition. We do not share the view of counsel for the appellees that this conduct is to be condoned and, except for certain other provisions of the Plan noted hereinabove, and which are referred to hereinafter, we think the provision that an employee who leaves and goes into direct competition with his employer forfeits his participation in the fund might be enforced, assuming notice and acceptance of such provision by the employees.

As was held in Sanders v. Sanders, 40 Tenn.App. 20, 288 S.W.2d 473 (479) (1955), forfeitures are not illegal per se and will be enforced unless contrary to equity and justice, the Court stating:

“The law does not favor forfeitures, and they will be strictly construed and enforced only within both letter and spirit of law, but they are not illegal and will generally be enforced unless justice and equity are violated.”

We concur in the conclusion of law reached by the Chancellor to the effect that a non-contributory pension and profit sharing plan is not a gratuity but is an offer of additional deferred compensation and the offer is accepted by the employee remaining in the employment of the employer which is sufficient consideration to support the employer’s promise to pay the benefits and is, therefore, a contract enforceable by the employee. Also, that the forfeiture clause added by the 1962 amendment does not apply to any benefits that become vested in the plaintiffs under the plan prior to the effective date of the amendment under the provisions of the Plan and the facts shown by the record.

We are unable to escape the conclusion that the provision in the plan that no amendment should reduce the interest of a participant in the trust property as of the time of the amendment without the written consent of the participant is a valid provision and that, according to the evidence in this record, no written consent of the plaintiffs who were under the plan at that time was obtained and, in fact, no effort was made by the defendants to advise the employees of this action or to gain their consent.

We are of opinion that the change in the provision of Art. VI, Sec. 1, from one that provided forfeiture in the event of dishonesty and disloyalty to one that provided for forfeiture in the event that the employee went into direct competition with the employer amounted to a reduction of the interest of the plaintiffs in the trust property and, therefore, without the consent of the participant, was not enforceable.

In 60 Am.Jur.2d, Pensions and Retirement Funds, it is said (p. 952) that pension and retirement plans are liberally construed in favor of the employee, it being the general rule that pension plans formulated by the employer are to be construed most strongly against the employer.

“Other courts reflect an increasing trend to hold that private non-contributory pension and retirement plans create a contractual obligation in which the promise to pay benefits is made in consideration of the continued faithful service of the employee for the requisite period, [citing cases]”

Tennessee cases dealing with pensions are to like effect. See Pless v. Franks, 202 Tenn. 630, 308 S.W.2d 402 (1957) and Wyckoff v. Memphis, 208 Tenn. 604, 348 S.W.2d 289 (1961).

In the unreported decision of the Western Section of this Court written by Judge Matherne, in the case of Johnson v. Mueller Co., 1974, it was said:

“We hold a non-contributing pension plan is not a gratuity. It is an offer of additional deferred compensation to the employee as an incentive toward continuing better service and loyalty; the offer is accepted by the employee remaining in the employment of the employer, which is sufficient consideration to support the employer’s promise to pay the benefits, and is therefore a contract enforceable by the employee.”

From the principle just stated, it follows that one who is employed on terms which include a particular profit sharing plan has a right to expect that the plan will continue unchanged until he is notified otherwise. Even though the plan is in fact changed, the terms of employment, including rights in the profit sharing plan remain unchanged until the employee is notified and thereby given opportunity to decline to work on the new terms. If, after notification, the employee continues to work, this would be an acquiescence in or acceptance of the amended plan in respect to rights accruing thereafter.

On this basis, each of the plaintiffs is entitled to enforce his rights under the old plan for that period in which he continued to work without notice of the change.

For the reasons thus stated, we are of opinion that the judgment of the Chancellor must be affirmed. Thus, the assignments of error are overruled and the judgment of the Chancellor is affirmed.

AFFIRMED.

TODD and DROWOTA, JJ., concur.


author: TODD, Judge. SHRIVER, Presiding Judge,

text:
    Phillip McCANDLESS and Ardis D. Parker, Plaintiffs-Appellants, v. OAK CONSTRUCTORS, INC., and Bobby Jackson, Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Aug. 6, 1976.
    Certiorari Denied by Supreme Court Dec. 6, 1976.

      Avon N. Williams, Jr., Nashville, for plaintiffs-appellants, on appeal only.
    James C. Summers and T. 0. Morris, Howser, Thomas, Summers, Binkley & Archer, Nashville, for defendants-appellees.
   OPINION

TODD, Judge.

In these consolidated cases, the plaintiffs, Phillip McCandless and Ardis D. Parker, have appealed from a j'ury verdict and j'udgment dismissing their suits against Oak Constructors, Inc., and Bobby Jackson and awarding j'udgment of $1,788.00 in favor of Oak Constructors, Inc., against Ardis D. Parker in a cross action.

The cases arose out of a motor vehicle collision which occurred on June 1, 1973, at about midday, on Goose Creek Bypass, a public highway in Williamson County. Plaintiff Parker was the owner and operator of a Chevrolet sedan in which plaintiff McCandless was a passenger. Defendant, Bobby Jackson, was operating a Chevrolet truck on the business of its owner, Oak Constructors, Inc.

Both vehicles were traveling in a southwesterly direction when the Parker sedan undertook to slow down and begin a left turn into a driveway and the truck operated by Jackson overtook the sedan and struck it.

In case No. 9039, Phillip McCandless, the passenger, sued Oak Constructors, Inc., and Bobby Jackson for personal inj'uries. As stated, this action was dismissed and the plaintiff appealed.

In case No. 9040, Ardis D. Parker sued Oak Constructors, Inc., and Bobby Jackson for personal injuries and property damages. The defendant, Oak Constructors, Inc., filed a counter-complaint for property damage. As stated, the plaintiff’s suit was dismissed, damages were awarded to cross-plaintiff, and the plaintiff-cross-defendant appealed.

The first assignment of error is as follows:

“The Trial Court erred in charging the jury as follows:
‘In a negligence case such as this is if a party, making a claim for.his own injuries and damages based on the negligence of the other parties is himself negligent and if that negligence was either the proximate cause or a concurring proximate cause of the accident then he is not entitled to recover, but the burden of proving contributory negligence is on the adverse party. In other words, contributory negligence is involved here or a claim of contributory negligence is involved in Ardis Parker’s claim and also in Oak Constructor’s claim, in other words if Ardis Parker was guilty of contributory negligence he can not recover. If Mr. Jackson was guilty of negligence which is a proximate cause that’s chargeable to his employer, and therefore he can not recover if it is a proximate cause of the accident.’ (B.E. 171)”: (Emphasis Supplied)

Appellant Parker complains that the charge discriminates against him in charging erroneously that any negligence on his part (whether proximate cause or not) would bar his recovery, whereas the cross-plaintiff’s suit would be barred by negligence of Jackson only if Jackson’s negligence was a proximate cause of the damages claimed. It should be noted, however, that the charge states that contributory negligence of Parker will defeat his recovery and negligence of Jackson which was a proximate cause will defeat the suit of his employer. It is possible that the Trial Judge inadvertently omitted “proximate cause” in connection with his mention of contributory negligence of plaintiff, Parker. However, “contributory” and “proximately causal” are substantially synonymous; and the charge as a whole does not convey an erroneous impression for the reason that the first sentence in the paragraph correctly states the law as to both plaintiff and cross-plaintiff. Smith v. Parker, 213 Tenn. 147, 373 S.W.2d 205 (1963).

At another point in the charge, in discussing remote contributory negligence, the Trial Judge stated:

“I have previously charged you in connection with the contributory negligence and how it applies to the several claims in this case. In any case where contributory negligence would be a complete defense you may find there is not contributory negligence in the sense of it being a direct or proximate cause or concurring cause, but you may find that there was remote contributory negligence .

The Trial Judge thus presented proximate cause as being a necessary requisite of contributory negligence. In this light, the expression “contributory negligence” would mean “proximate contributory negligence” or “negligence that proximately caused

If it was conceived that the jury was being misled by an inadvertence in the charge, there was opportunity to call same to the attention of the Trial Judge and to submit a request for a correcting instruction. Rush v. Lick Creek Watershed District, 50 Tenn.App. 28, 359 S.W.2d 582 (1962).

The verdict of the jury demonstrates that plaintiff-appellant Parker was not prejudiced by the charge on contributory negligence. Before the jury could render a verdict for damages against appellant as cross-defendant, under the law and the charge it was necessary to find the cross-defendant (Appellant Parker) guilty of negligence proximately causing the collision. Therefore, the verdict against the cross-defendant, Parker, contained the finding of fact that cross-defendant, Parker (ergo, plaintiff Parker) was guilty of negligence which proximately caused the collision. Since the jury, in its verdict on the countersuit, found proximate negligence on the part of plaintiff Parker, the omission from the charge of the necessity of proximate cause became immaterial.

In view of the other correct statement of the law in the charge, it is not considered that the inadvertence was prejudicial, ergo, was not reversible error. T.C.A. §§ 27-116, 117.

The first assignment of error is respectfully overruled.

The second assignment of error is as follows:

“The Trial Court erred in charging the jury as follows:
‘In ascertaining where the preponderance of all the evidence is you will not be guided alone by the number of witnesses who have testified in favor of or against any party because evidence must be considered and weighed with reference to its value and not merely with reference to the number of witnesses who may have testified. In weighing the testimony of the witnesses you should consider their intelligence and motives, their means of knowing whereof they speak, reasonableness or unreasonableness of the testimony given, the interest or lack of interest that any witness may have in the result of the case, the relationship of any witness by blood or marriage or business association between any witness and any of the parties together with the witnesses appearance, conduct while on the witness stand and any other circumstances that may show a leaning towards one side or the other. It is for you to judge credibility of the witnesses and to reconcile all conflict and discrepancies, if any, in their testimony upon the supposition that all of them have spoken the truth if you can do so, but if you can not do this it is your duty to believe that evidence which you think worthy of belief and to ignore such evidence that you can not believe. If any witness has behaved in such a manner as to make you doubt his testimony then the weight to be given to the testimony of such witness or any part thereof, is a matter which the law leaves to the sound discretion of the jury. You may accept or reject any part or all of such testimony according to its degree of credibility.’ (B.E. 172-173).”

Appellants insist that, by suggesting criteria for evaluating the truthfulness of witnesses, the Trial Judge invaded the fact-finding province of the jury.

Appellants cite Morgan v. Tenn. Cent. Ry. Co., 31 Tenn.App. 409, 216 S.W.2d 32 (1948), wherein this Court stated that the credibility of witnesses is for the jury, not the judge, to determine. However, said statement was made in reversing a directed verdict and not in criticism of an instruction as to the standards for evaluating Credibility-

Appellants also cite Finks v. Gillum, 38 Tenn.App. 304, 273 S.W.2d 722 (1954) wherein this Court stated credibility was for the jury, but the statement was made in affirming the refusal of a Trial Judge to direct a verdict and not in criticism of a jury charge.

Appellants further cite Clark v. Engelberg, 58 Tenn.App. 721, 436 S.W.2d 465 (1968), however that ease also affirmed a jury verdict for the plaintiff and did not involve a challenge of a jury instruction.

In McClure v. Felts (1965), 252 Miss. 234, 172 So.2d 549, cited by appellants, the Trial Court instructed the jury as follows:

“. . . as a matter of law and irrespective of the testimony of any particular witness for either party, you are the sole judges of the weight and worth of the testimony and of the credibility of the witnesses, and that it is within your province, in making up your verdict in this case, to accept or reject, in whole or in part, the testimony of any witness or witnesses; * * 172 So.2d, p. 552.

The Mississippi court held that the quoted instruction contravened the duty of the jury “to honestly and fairly consider all of the testimony offered.” The entire charge is not quoted in the cited opinion, hence it is impossible to evaluate the quoted portion of the charge in the light of the charge as a whole.

In the present case, the Trial Judge charged the duty “to reconcile all conflicts and discrepancies . . upon the supposition that all . . . have spoken the truth if you can do so . . .” The substance of the admonition just quoted is to the effect that the jury should “honestly and fairly consider all of the testimony offered.” In the light of such admonition it can hardly be said that the jury was authorized by the court to arbitrarily disregard the testimony of one or more witnesses. The jury was authorized to “ignore such testimony as you cannot believe” only in event of a conflict with other testimony which the jury considered more credible.

The charge used by many judges, including the writer of this opinion, has included the following:

“In weighing the testimony of a witness, the jury should also consider whether all the testimony of the witness is consistent or whether it contradicts itself or is contradicted by the testimony of other credible witnesses. Immaterial contradictions or discrepancies in the testimony of a witness do not necessarily affect his or her credibility, unless there is something to show that they originate in willful falsity. The jury cannot and must not arbitrarily disregard the testimony of any witness, unless it should plainly appear that he or she has willfully sworn to a falsehood regarding some material matter involved in the case. If and when it should appear to your satisfaction that a witness has thus falsely testified, then you would be justified in disregarding his or her testimony entirely, except such portions as may be corroborated by other reliable and credible evidence.”

The foregoing would have elucidated the charge that was given; however, the failure to include same in the charge is not deemed reversible error in the present case.

Appellants cite Valente v. H. P. Hood & Sons, Inc. (1971), 108 R.I. 558, 277 A.2d 505. That case involved a particular witness (the plaintiff) who was shown to have suffered a loss of memory. The basis of reversal is stated in the opinion as follows:

“That the credibility to be given to the testimony of witnesses is exclusively within the province of the jury and that this function may not be infringed by the giving of instructions which disparage the testimony of a witness or which minimize its value is universally held. 1 Reid Branson, Instructions to Juries, § 37, at 121 (3d ed.) We are persuaded after carefully scrutinizing plaintiff’s brief that he views this as a question of improper comment upon the weight of evidence by a trial justice. That, in our opinion, is not the precise question presented to us here. Rather, here we are confronted with the question whether the trial justice so instructed the jury as to infringe upon its exclusive authority to determine questions of credibility by conveying to it the impression that in his opinion the testimony of plaintiff was not reliable, because of his other testimony that immediately after the accident he had suffered a loss of memory which continued for several months.
“We are constrained to conclude, when we examine the challenged portion of the charge, that it would tend to convey to ordinarily intelligent jurors the impression that the trial justice was directing their attention to plaintiff’s testimony and questioning its credibility or reliability because of his testimony concerning a lapse of memory. .
. it is clear from the record that the instruction concerning the capacity of the witness to recall accurately what happened had application only to the plaintiff. It is our opinion, then, that in this peculiar circumstance we cannot assume that such curative language would serve to erase from the minds of the jury the impression that the trial justice was questioning the credibility of the plaintiff on the basis of his testimony as to his subsequent loss of memory. Because we reach this conclusion, it is our opinion that justice requires that a new trial be ordered.” 277 A.2d, pp. 506, 507.

Appellants also cite Ripp v. Riesland (1964), 176 Neb. 233, 125 N.W.2d 699, wherein the Trial Court instructed the jury:

“. . . you should proceed upon the theory that all witnesses have tried to testify truthfully.”

In the present case, the Trial Judge charged:

“. . . upon the supposition that all of them have spoken the truth if you can do so, but if you cannot do this, etc.”

Clearly, the emphasized words and those that follow leave the ultimate decision of credibility to the jury.

Appellants insist that the charge imposed upon the jury a set of standards supplied by the judge, thereby depriving the jury of the full exercise of its judgment as to credibility. The charge contains the words,

“and any other circumstance which may show a leaning toward one side or the other.”

These words are sufficient to license the jury to apply any standard of credibility which may seem reasonable to them under the evidence.

The second assignment of error is respectfully overruled.

The third assignment of error is as follows:

“The Trial Court erred in charging the jury as follows:
‘The rules of evidence ordinarily do not permit the opinion of witnesses to be received as evidence. The exception to the rule is the case of expert witnesses. A person who by education, study and experience has become an expert in the arts, sciences or position may give his opinion to any such matter. You should consider any expert opinion, however, you are not bound by any such opinion. You give it the weight you think it’s entitled to.’ (B.E. 173).”

Appellants point out that the only expert testimony was a medical deposition and the testimony of a police officer who stated that neither party had been drinking, whereas there was testimony that the defendant Jackson had been drinking. Appellants complain that the charge on expert testimony required or influenced the jury to give special weight to the testimony of the police officer in preference to that of the other witnesses.

Whitaker v. Pullen, 22 Tenn. (3 Humph.) 466 (1842), cited by appellants, does hold that a judge is not required to charge on facts not in evidence (the Trial Court was affirmed); but it does not hold that it is reversible error to charge the law on facts not in evidence. The correct rule is stated in Dixie Feed and Seed Co. v. Byrd, 52 Tenn.App. 619, 376 S.W.2d 745 (1963) to the effect that a charge on law inapplicable to the facts in evidence is not reversible unless it appears that the charge affected the result.

The opinions of experts are generally admitted and considered only as to those matters which are not of common knowledge or as to which an ordinary person might form a reliable opinion. Nashville & C. R. Co. v. Carroll, 53 Tenn. (6 Heisk.) 347 (1871); Ellis v. Ellis, 63 Tenn.App. 361, 472 S.W.2d 741 (1971); Nash. Ry. & Lt. Co. v. Harrison, 5 Tenn.App. 22 (1927).

Intoxication is generally regarded as being within the ken, ergo ability to evaluate and competency to testify, of the ordinary individual. See authorities listed in 32 C.J.S. Evidence § 546(27), pp. 175-177.

Appellants would have been entitled to an instruction to this effect, which would have assured full consideration of the opinion of their non-expert witness. Such was not requested; and, in the absence of a special request, it was not error to fail to thus charge.

Under the circumstances, it does not appear that the jury was misled into giving unwarranted consideration to the testimony of the officer because of the charge.

The third assignment of error is respectfully overruled.'

The fourth assignment of error is as follows:

“The Trial Court erred in charging the jury as follows:
‘Where a person is confronted by a sudden emergency not of his own making that is not occasioned by his negligence such person is not chargeable with negligence if he acted according to his best judgment or because of want of time in which to form a judgment, omitted to act in a most judicious manner, but one may not excuse his bad judgment if his own negligence caused the emergency or contributed the bringing it about.’ (B.E. 174).”

Appellants insist that it was error to so charge without also charging the doctrine of “last clear chance.” There is no indication in the record that appellants made any request to the Trial Court to charge “last clear chance.” Generally, the reviewing court will not reverse for meagerness, inadequacy, etc., or failure to give a charge unless a special request is submitted. Bluff City Buick Co. v. Davis, 204 Tenn. 593, 323 S.W.2d 1 (1959).

The fourth assignment of error is respectfully overruled.

The fifth assignment of error is as follows:

“The Trial Court erred in charging the jury as follows:
‘In this case there are certain charges of violations of statutes. Ardis Parker in his complaint alleges that the Defendant Jackson in the operation of his motor vehicle violated T.C.A. Section 59-824, the first paragraph thereof which provides as follows. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent having due regard for the speed of such vehicle and the traffic upon and the condition of the highway. In considering the evidence in this case you must determine whether the Plaintiff Parker has proved that the Defendant Jackson failed to comply with the quoted statute. If you find that the Defendant Jackson violated the statute such violation constitutes negligence, you can not disregard violations of a statute and substitute some standard of care other than that set forth in the statute.’ (B.E. 175-176).”

Appellants urge that the quoted instruction constituted an erroneous comment upon the evidence and that its effect was to confine the jury to consideration of statutory negligence to the exclusion of common law negligence. Such does not appear to be the case; however, if appellants deemed the charge to be deficient in respect to possible theories of recovery or defense, it was their privilege and duty to specially request appropriate additions to the charge. Not having done so, they may not complain of the omission on appeal. Bluff City Buick Co. v. Davis, supra.

The fifth assignment of error is respectfully overruled.

The sixth assignment of error is as follows:

“The Trial Court erred in charging the jury as follows:
‘The same instructions apply to the averment in the pleadings by Oak Constructors. It’s counter-claim to the effect that Ardis Parker as a counter-defendant violated T.C.A. 59-824 paragraph B thereof which provides as follows. I’m sorry. That should have been Section 817, the following Rule shall govern the overtaking and passing of a vehicle proceeding the same direction. Subject to those limitations, exceptions and special rules herein after stated except when overtaking and passing in the right is permitted the driver of an overtaken vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaken vehicle.’ (B.E. 176).”

Appellants insist that the foregoing summary of the statute (§ 59-817, T.C.A.) is incomplete in that only subsection b was charged, omitting subsection a of said statute. It is also insisted that the charge was inapplicable to the facts. There was no request for a clarifying or enlarged charge of the statute.

On the basis of principles and authorities already cited, the sixth assignment of error is respectfully overruled.

The seventh assignment of error is as follows:

“The Trial Court erred in charging the jury as follows:
“In the case of Phillip McCandless against Bob C. Jackson and Oak Constructors he is not charged with negligence and the negligence, if any, of Ardis Parker is not chargeable to him as a guest passenger and therefore he can recover whether you find that the accident was a result solely of Ardis Parker — no, solely of Jackson or if it occurred through the concurrent negligence of the two automobile’s drivers.’ (B.E. 171-172).”

It is stated that this instruction “suggested . .a preoccupation ... of the Court with negligence ... of plaintiff Parker,” and that where a Trial Judge singles out a fact or emphasizes particular evidence, there is error.

In Stevens v. Moore, 24 Tenn.App. 61, 139 S.W.2d 710 (1940), cited by appellants, the Trial Judge instructed the jury that “your verdict must be for $50.00 or nothing.” This was held to be an invasion of the province of the jury because of other evidence worthy of consideration as to value.

In Carman v. Huff, 32 Tenn.App. 687, 227 S.W.2d 780 (1949), cited by appellants, this Court affirmed and approved the refusal to charge certain specially requested instructions because:

“ . . . it is not considered good practice ... to single out ... or emphasize particular evidence in the charge . . .

The cited case is not authority for the insistence that it is reversible error to state a rule in the abstract which calls attention to particular evidence. To the same effect is Gulf Compress Co. v. Ins. Co. of Penna., 129 Tenn. 586, 167 S.W. 859 (1914), cited by appellants.

The seventh assignment of error is respectfully overruled.

The eighth assignment of error is as follows:

“The Trial Court erred in charging the jury as follows:

‘Now, with respect to each claim whether it’s on original complaint or counter-claim if you find in favor of the Plaintiff Parker then you will go further and assess the amount of such parties’ damages and in doing this you will take into consideration the nature and extent of the personal injury that they claim, the amount of mental and physical pain suffered on account of injury, the loss of time, decreased capacity for earning money, loss of earnings, expenses incurred on account of such and said injuries including doctor’s bills, hospital’s bill and such other medical expenses that have been proven and award a verdict for such matters that would compensate the claiming parties for the pain sustained.’ (B.E. 177).”

There is, indeed, an ambiguity in the quoted portion of the charge, created by the inclusion of the name of the plaintiff, Parker, without including or referring to the other plaintiff and the cross-plaintiff. In a literal and unnatural interpretation, it might be said that the jury was told that no party could recover unless the jury found in favor of the plaintiff, Parker. Such was not the intent of the Trial Judge; and, in view of the entire charge, it is not likely that 12 intelligent jurors were misled by the inadvertence. Moreover, if a clarifying statement were needed, it was the duty of counsel to supply same by special request.

The eighth assignment of error is respectfully overruled.

The ninth assignment of error is as follows:

“The Trial Court erred in charging the jury as follows:
‘When you retire you should first elect a foreman to lead you in your deliberations and discussions and to report your verdict back to the Court and when you return I will ask for actually three verdicts in the order that I gave you the claims, in other words I will first ask you in the claim of Ardis Parker how do you find and if you find for the Defendant you will simply say we find for the Defendant. If you find for the Plaintiff Parker you will then state we find for Ardis Parker on his claim and assess his damages at such and such. Then I will ask you for your verdict in the claim of Phillip McCandless and then ask you your verdict on the claim of Oak Constructors. Any questions? You may retire and consider your verdict.’ (B.E. 117-179).”

This Court cannot agree with appellants’ insistence that the foregoing improperly suggests that the jury must find in favor of plaintiff Parker before finding in favor of plaintiff McCandless. The Trial Judge simply used the plaintiff, Parker, as an example and then stated that the same process would be used in respect to the other plaintiffs.

The ninth assignment of error is respectfully overruled.

The tenth assignment of error is as follows:

“The Trial Court erred in charging the jury as follows:
‘An injury may be caused by the negligent act or omissions of more than one person. If conduct of two or more persons combined to cause an injury and if the causes of injuries are effectively inse-parateable in the result each person is responsible individually and jointly for having contributed concurrently to the resulting accident. Causes to are considered to be concurrent if the forces set in motion by each cause are still operative at the moment of injury and if these causes combined individually to produce the result.’ (B.E. 174-175).”

Appellants find fault with the expression “inseparateable in result.” Apparently “inseparateable” is a typographical error or slip of the tongue, for no such word can be found in Webster’s Third New International Dictionary. Evidently, the word, “inseparable” was either used or intended by the Trial Judge. This word is not found in the leading authorities on concurrent negligence, and its meaning must have been somewhat obscure to the jury. However, other portions of the quoted instruction clarify and elucidate the intended meaning, that a concurrent cause must have a direct causal connection with the resultant injury.

As was stated in McDonald v. State, 89 Tenn. 161, 14 S.W. 487 (1890), the Courts, in charging juries, should not depart from the long-settled, oft-repeated, and well understood language in which the Court of last resort has declared the law.

Nevertheless, it is not considered that the departure complained of was prejudicial or reversible error.

The tenth assignment of error is respectfully overruled.

The eleventh assignment of error is as follows:

“The Trial Court erred in accepting the following verdict of the jury:
THE COURT: Who is your foreman? Mr. Arnold, has the jury reached a verdict on the claim of Ardis Parker against Defendant Oak Constructors and Jackson?
THE FOREMAN: We have.
THE COURT: What is that verdict?
THE FOREMAN: We have found for Mr. Jackson and Oak Constructors.
THE COURT: You find for the Defendant?
THE FOREMAN: Yes, sir.
THE COURT: Have you reached a verdict in the case of Phillip MeCandless versus Oak Constructors and Jackson?
THE FOREMAN: Yes, we have found for Jackson and Oak Constructors.
THE COURT: Have you reached a verdict in the case of Oak Constructors against the Defendant and Defendant parties?
THE FOREMAN: We have, Your Honor. We found for Oak Constructors.
THE COURT: In what amount?
THE FOREMAN: In the amount of damages claimed on the truck.
THE COURT: Were you all aware of how much that was?
THE FOREMAN: Seventeen Hundred eighty-eight dollars and some change.
THE COURT: That verdict will go down for seventeen hundred and eighty-eight dollars. (B.E. 179-180).”

Apparently appellants are offended because the Trial Judge accepted a verdict for “seventeen hundred eighty-eight dollars and some change” and entered judgment for $1,788.00, ignoring the “change.”

Appellants cite Neville v. Northcutt, 47 Tenn. (7 Coldw.) 294 (1869); however, in that case, the jury reported, “we find . in favor of the plaintiffs for the amount of the account.” This verdict specified no particular amount, whereas the verdict in the present case specified $1,788.00, leaving uncertain the number of cents. There is no error in entering judgment for the specified amount and ignoring the unspecified number of cents.

Moreover, there was no prejudice to plaintiffs in the action of the Trial Judge. It was the cross-plaintiff who was deprived of the verdict for “some change,” and only the cross plaintiff could complain.

This is an appropriate situation for the application of the “De Minimis Rule.” (De Minimis non curat lex, the law cares not for trifles). Peoples v. Hagaman, 31 Tenn.App. 398, 408, 215 S.W.2d 827 (1948).

The eleventh assignment is respectfully overruled.

The twelfth, and last, assignment of error is as follows:

“The Trial Court erred in overruling the first and second ground of plaintiffs’ Motion for a New Trial, to-wit:
1. Because there is no evidence to support the verdict.
2. Because the verdict is contrary to the law applicable to the case.
This was error because there was no evidence to support the verdict of the jury on the claims of plaintiffs, Ardis Parker and Phillip McCandless, against defendants, Bobby Jackson and Oak Constructors, Inc., and on the claim of Oak Constructors, Inc., against Ardis Parker.”

According to appellants’ theory of the case and interpretation of the evidence, the operator of the truck of the defendant-cross-plaintiff had ample opportunity to see the movements of plaintiffs’ vehicle and avoid it.

The theory of the defendant-cross-plaintiff was that the movement of plaintiffs’ vehicle was confusing to him and that he did all that a reasonable person would have done to avoid the collision. Unfortunately, the brief of appellees does not cite parts of the record to support the verdict as required by the rules of this Court, however, the Court has made its own search of the record and finds evidence to support the theory of the defendant-eross-plaintiff and the verdict in its favor.

The driver, Mr. Jackson, testified that, as he approached the scene at about 55 miles per hour, he saw plaintiffs’ vehicle about one-fourth mile away either stopped or moving very slowly on the paved shoulder on the extreme right side of the road; that there was no indication of any emergency or danger until he (the witness) was “real close”; that he (the witness) moved to the center of the highway to pass to the left of plaintiff; that, when he (the witness) was about 150 feet away, plaintiff turned across the road; that he (the witness) then tried to avoid plaintiff by passing to the right instead of the left as originally planned, but was unable to do so, and the collision occurred. The testimony of Mr. Jackson includes the following:

“A. I swung over on the center line giving him the right lane because as I got closer I noticed he was moving slowly.
Q. All right.- Where was the ear when you started swinging over into the — across the center line?
A. On the paved shoulder.
Q. How close were you on the car when you said it turned in front of you?
A. I was about a hundred and fifty feet when ever he swung out and I saw he was coming out in front of me.
Q. A hundred and fifty feet?
A. A hundred and fifty, hundred and seventy-five.
Q. Would you describe exactly just exactly what movement you say that car made?
A. Just easing along on that shoulder road and, of course, I swung out towards the middle when he was up here and he just started out like that and when I saw him starting out I whipped my truck back, whipped it back to the right and hit my brakes.
Q. Did you testify that this car got cross ways in the road?
A. He was coming across the road.
Q. Did you testify that it was cross ways in the road at some point there you could see the door?
A. I could see the door, yeah. I could see him in the window there.
Q. Did you have a side view of that car? Did you see the side of that car?
A. I had a side view of the car.
A. I applied my brakes.
Q. What else did you do?
A. I whipped it back to the right to try to go behind him.
Q. So, you had gone across the center line before—
A. Right.
Q. —you whipped it back before the hundred and seventy-five feet?
A. Right.
Q. Yes, sir. All right, sir. Now, did I understand you to testify that you cut your car to the right on Direct Examination, you said you cut your car to the right? Now, on the question as to whether you had tried to go around the ear on the right you said that there was room to go behind him and go around him and you would have if he hadn’t stopped, is that your testimony?
A. Yes, hit his brake or we would have went behind him, right.”

It may easily and logically be said that a vehicle approaching another from the rear on a clear dry day with no other vehicles present ought to be able to avoid colliding with the vehicle being overtaken.

On the other hand, it must be recognized that a vehicle may lawfully travel at a speed of 55 miles per hour upon the open highway; that the mere fact that one other vehicle is some distance ahead moving slowly or stopped on the right shoulder does not necessarily obligate the overtaking vehicle to reduce speed; that the reasonable reaction of a driver under the circumstances would be to move to the left to pass the slow-moving or stopped vehicle “giving him plenty of room”; that a sudden and unexpected movement of the leading vehicle across the path of the overtaking vehicle presents an emergency which must be dealt with by “snap judgment”; that it would be reasonable to try to “go behind” (to the right of) the turning vehicle, rather than to continue on a course which would inevitably produce a collision; that a sudden stopping of the turning vehicle as it crossed the road would tend to frustrate the plan to “go behind him” by passing to his right.

If the movements of plaintiff were as described by Mr. Jackson (sudden left turn across the road from the extreme right side and sudden stop as he crossed the road) then such movements were such as to produce the collision in spite of the exercise of reasonable care by Mr. Jackson. This is the theory which was evidently accepted and adopted by the jury. Being supported by evidence, it is ground for affirmance.

The factual findings of the jury and the verdict are not necessarily those which would have been reached if the members of this Court had been sitting on the jury. However, this Court is not authorized to substitute its judgment for that of the jury where the verdict is supported by material and substantial evidence. Lowe v. Preferred Leasing Service, (Tenn.App.1975), 528 S.W.2d 38.

Under the facts as found by the jury, the collision was unavoidable so far as the defendant-cross-plaintiff was concerned. Under such a finding, neither appellant was entitled to recover.

The verdict and judgment of the Trial Court are affirmed. Costs of this appeal are taxed against appellants.

Affirmed.

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

SHRIVER, Presiding Judge,

partially dissenting.

I concur in the Opinion written by Judge Todd in overruling all assignments except the assignment that there is no substantial material evidence to support the verdict wherein plaintiff McCandless, the passenger in Parker’s car, was denied a recovery in any amount.

He was not charged with any negligence, remote or proximate, and none was shown. On the other hand, it cannot be successfully contended that the defendant truck driver was pure, lily-white and completely free of negligence which proximately contributed to the collision in which McCandless was injured.

The day was clear, the stopped car in which McCandless was a passenger was plainly visible opposite a driveway on the left, so that ordinary care dictated that Jackson, the truck driver, slow down and be on the alert for a movement of the car which might be reasonably anticipated. Instead he pulled first to his left and then to the right but was going too fast to avoid striking the rear of the Parker car.

I would sustain the assignment, reverse as to McCandless and remand for a new trial of his case.