text:
    STATE of Tennessee v. Ronald MADDUX and Ruby Wanda Gibson Maddux. In re Petition of Robert T. BYRD, III.
    Supreme Court of Tennessee.
    Oct. 9, 1978.

      E. E. Edwards, III, Nashville, Jerry H. Summers, Chattanooga, for petitioner, Robert T. Byrd, III.
    Brooks McLemore, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, for respondent, State of Tennessee.
   OPINION

COOPER, Justice.

We granted certiorari in this case to consider a judgment of the Court of Criminal Appeals, which affirmed, with modifications, an order of the Criminal Court of Bradley County adjudging the petitioner to be in contempt. For the reasons set forth below, we reverse, and dismiss.

This controversy arose in connection with the criminal case, of State v. Ruby Wanda Gibson Maddux. The petitioner, Byrd, is an attorney practicing in Bradley County, where the Maddux case originated. He also is the state senator from the district which includes Bradley County. The petitioner was appointed by the trial judge to represent Mrs. Maddux. Upon learning of his appointment, the petitioner immediately moved that he be relieved, giving as the reasons for his request certain alleged conflicts of interest, as well as his personal prejudice against the defendant and his prejudgment of the case. The trial judge denied the motion. Some two weeks later the petitioner renewed his motion to be relieved as counsel for the defendant. During the course of the discussion, the trial judge questioned the petitioner concerning several out-of-court statements. In those statements the petitioner allegedly had stated that he believed his appointment had been politically motivated, and he had discussed reducing the trial judge’s district so as to remove Bradley County from it. After learning from the petitioner that he had not as yet worked on the case, and after a further assertion by the petitioner that he did not feel able to represent the defendant, the trial judge summarily held the petitioner in contempt. When the cause came before the Court of Criminal Appeals, that court, with one judge dissenting, affirmed the judgment of the trial court, but reduced the punishment imposed.

In so far as is material to this petition, there are two species of contempt, direct and indirect, which differ, among other ways, in the minimal procedures that will satisfy the requirements of due process in the case of each. Direct contempt is based upon acts committed in the presence of the court, and may be punished summarily. Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888). Cf. Taylor v. Hayes, 418 U.S. 488, 497, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974). Indirect contempt is based upon acts not committed in the presence of the court, and may be punished only after the offender has been given notice, and the opportunity to respond to the charges at a hearing. Johnson v. Mississippi, 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971); Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925). See generally, Am.Jur.2d Contempt, §§ 6-7, 88. With respect to these criteria, an act not committed in the presence of the court is treated as indirect contempt even though the act may be admitted by the offender in open court. In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925).

With the exception of the petitioner’s supposed refusal to accept appointment in this case, which will be discussed below, the acts which prompted the citation for contempt did not take place in the presence of the court, and constituted indirect contempt. The petitioner had neither notice of nor a hearing on the charges stemming from these alleged out-of-court acts. As a result, under the rule set forth above, the petitioner’s conviction may not be predicated on those acts and, if it is to stand, must rest upon some other ground.

The sole remaining ground relied upon by the trial judge in his order citing the petitioner for contempt was the petitioner’s refusal to accept appointment in the cause. Upon consideration of the record, we can find no material evidence to support this finding by the trial judge. To the contrary, the record shows rather that the petitioner did accept the appointment. Although the record shows as well that, up to the time that he was cited for contempt, the petitioner devoted most, if not all, of his efforts to seeking to be relieved of that duty, his actions in this respect were not such as would support a citation for contempt on the ground set forth by the trial judge. We would have scant sympathy for an attorney who sought to avoid representing a defendant merely because his cause was unpopular, or the crime of which he was accused, distasteful. Cf. Code of Professional Responsibility, Canon 2, EC 2-29. However, the record here shows, at worst, an earnest, if misconceived, effort on the part of the petitioner to convince the trial judge that his continued representation of the defendant was not in her best interests. While we may not agree with his contention, we have no cause to believe that it was not pressed in good faith. The petitioner’s arguments were presented forthrightly and respectfully, and had not yet become an unreasoning and contumacious refusal to abide by the rulings of the court, so as to make him subject to punishment for contempt. Compare Gallagher v. Municipal Court of the City of Los Angeles, 31 Cal.2d 784, 192 P.2d 905, 913 (1948); with Sacher v. United States, 343 U.S. 1,72 S.Ct. 451, 96 L.Ed. 717 (1952); and United States v. Schiffer, 351 F.2d 91 (6th Cir. 1965).

Thus, none of the petitioner’s acts upon which the trial judge based his holding that the petitioner was in contempt were such as would support that finding in a summary proceeding. Accordingly, the judgment of the Court of Criminal Appeals, affirming the action of the trial judge, is reversed. As, from our review of the record, it does not appear that any purpose would be served at this date by remanding the case for hearings on whether a judgment for contempt might be based on any out-of-court acts committed by the petitioner, the case is dismissed.

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

      . The final order states, in pertinent Part:
      [I]t appears to the court that [the petitioner] .. . has refused and does refuse appointment in the above cause, and that he has made public statements declaring that he cannot represent the . . defendant because he is convinced of her guilt and is prejudiced against her and all defendants charged with child abuse.
      And also that he had expressed himself as believing that the court was motivated by politics in appointing him in this cause and that he, as state senator would divide the [judicial circuit] so as to rid Bradley County of the judge of this court.

        For these reasons, the Court does hereby find the said attorney guilty of contempt of court and fixes his punishment at a fine of ten dollars and ten days in jail, and further that he will not be allowed to practice law in this court for a period of six years.

      . The punishment was reduced by the Court of Criminal Appeals to a ten dollar fine and a ten day sentence, with the latter suspended on the condition that the petitioner abide by further orders of the court.


source: Caselaw Access Project

author: HARBISON, Justice. HENRY, Chief Justice,

license: Public Domain

text:
    Coy RAMSEY, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Oct. 9, 1978.
    R. Bruce Ray, Burnett, Ray & Ramsey, Jamestown, appellate counsel, John E. Appman, Jamestown, trial counsel, for petitioner.
    Brooks McLemore, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, Arzo Carson, Dist. Atty. Gen., Robert T. Beaty, Asst. Dist. Atty. Gen., Jamestown, for respondent.
   OPINION

HARBISON, Justice.

Petitioner Coy Ramsey was convicted of burglary. His petition for certiorari primarily challenges the sufficiency of the evidence.

In the opinion of the majority, both the credibility of the witnesses and the weight to be given their testimony were involved in the case. The jurors, who saw and heard the witnesses, resolved the issues in favor of the State. Their verdict was concurred in by the trial court and by the Court of Criminal Appeals. In our opinion there was sufficient evidence to justify the conviction of the petitioner, and we are unable to sustain the assignments that the evidence preponderated against the verdict.

By his own admission to the owner of the burglarized premises, petitioner was present at the time of the offense in an automobile parked near the premises. The automobile had been obtained by the petitioner from his sister, and earlier in the evening he had driven it. During the day preceding the burglary petitioner’s confederate, Langley, had discussed burglarizing the premises in question and had requested a cousin of petitioner to assist him. The cousin had refused. However, the petitioner thereafter obtained an automobile and accompanied Langley to the premises and admittedly was in or near the automobile when the burglary took place.

The principal witness for the state was Sheriff Cecil Byrge of Morgan County. On the night of the burglary, at about midnight, while on routine patrol, he observed an automobile parked on the side of the Old Crossville Road, near the burglarized premises. His automobile was equipped with aircraft landing lights, and he turned these onto the parked automobile. He saw petitioner with one Terry Langley at the rear of the automobile, the petitioner being crouched down behind it. They immediately started running away from the automobile.

The trunk of the car was open, and some of the property stolen from the burglarized premises was inside it; some was on the ground outside, and a stolen motorcycle was on its side behind the automobile. The sheriff testified that he saw both the petitioner and Langley flee from the automobile and run up the road. He testified that he searched the entire area diligently and remained in the vicinity for more than an hour and a half without ever discovering the petitioner.

The entire defense offered by the petitioner was that he was too intoxicated to aid or abet Langley or to have any knowledge that a burglary had taken place. Langley undertook to assume full responsibility for the burglary, and testified that the petitioner was too drunk to run but only stumbled off to the side of the road. This testimony was contradicted by the sheriff, and the jury was not obligated to accept Langley’s version.

Petitioner was not found anywhere in the area after a diligent search lasting for a considerable period of time. He admitted that on the next day he went to his brother’s home where he hid for several days and then went to Florida and stayed for six weeks.

The degree and extent of the intoxication of the petitioner were issues of fact. If he were too drunk to participate in the burglary or to assist in putting the stolen merchandise in the trunk, and if he were too drunk to know what he was doing, then a jury might have also concluded that he would have been unable to recognize the sheriff or to make an effective escape.

Langley was the principal witness offered for the defense, but his credibility was open to attack. The State proved that he had pleaded guilty to burglary in connection with the present incident, and it also established a prior larceny conviction.

Langley was contradicted not only with respect to whether petitioner was unable to run when the sheriff arrived. He testified that he and petitioner sat in the car near the burglarized premises for several hours, drinking, before Langley made the first of his three unassisted trips to loot a garage, a truck and a desk of such items as a motorcycle, several guns, a money box, cartons of cigarettes and a CB radio. Yet the sheriff said that he searched in and around the car and found neither beer cans, whiskey bottles nor any other containers of intoxicants. The jurors were not compelled to infer that petitioner and Langley, fleeing unceremoniously from the scene as the sheriff testified, or stumbling drunkenly a few feet into a nearby wood as Langley said, carried their empty beer or whiskey bottles with them. They might not have believed the parties sat in the car for that length of time, since no evidence of their drinking was found— and they might not have believed that petitioner was as drunk as he claimed.

Petitioner undertook to place an innocent cast upon his flight from the scene and his subsequent absence from the state. His testimony becomes less convincing, however, in light of the fact that both he and Langley knew the next day that warrants were outstanding for their arrest. Both admitted meeting the next day, and Langley testified:

“Q. And Mr. Ramsey knew there was a warrant for him, too, didn’t he?
“A. Yes, I’d say he did.”

Ramsey’s sister was aware shortly after the event that a warrant had been issued. The jury was not bound to accept Ramsey’s testimony at trial that he had not discussed the burglary and his use of her car with his sister in the eleven months intervening between the burglary and the trial — although they lived in the same house.

Nor was it bound to accept Ramsey’s testimony that he had “been drunk about six years.” He was twenty-one on the trial date — about twenty when the burglary occurred.

In their testimony both petitioner and Langley referred to numerous persons who allegedly saw them during the evening before the burglary and who should have been in position to verify petitioner’s alleged drunken stupor. None of these witnesses, however, was called to testify.

Concededly the State did not offer a witness who saw the petitioner break and enter the burglarized premises. This, however, is certainly not required in order to convict. T.C.A. § 39-109 provides:

“All persons present, aiding and abetting, or ready and consenting to aid and abet, in any criminal offense, shall be deemed principal offenders, and punished as such.”

Petitioner in this ease obtained the vehicle used to transport him and Langley to the scene of the burglary. The burglary had been discussed in his presence earlier in the day. He was not too drunk to drive the car when it was turned over to him by his sister. He was not too drunk to be out in the rear of the vehicle with Langley, crouched down behind it, and apparently aiding in putting stolen merchandise into it. He was not too drunk to flee from the sheriff and effectively escape. If he and his companion drank extensively at the scene, they carefully removed all evidence of doing so. Petitioner fled the jurisdiction after learning of a warrant for his arrest.

In our opinion, there were issues made for determination by the jury and sufficient evidence to support its verdict. The judgment of the Court of Criminal Appeals is affirmed at the cost of petitioner.

COOPER and FONES, JJ., concur.

HENRY, C. J., and WILLIAM I. DAVIS, Jr., Special Justice, dissent.

HENRY, Chief Justice,

dissenting.

I respectfully dissent.

We granted certiorari in this criminal action, wherein petitioner was convicted of burglary, in order to examine the sufficiency of the evidence. We examine it in the light of the limited nature of our scope of review and with full regard given to the rule that in a criminal case a jury verdict, approved by the trial judge, thrusts upon an appealing defendant the burden of showing that the evidence preponderates against his guilt, Martin v. State, 542 S.W.2d 638 (Tenn.Cr.App.1976), and that this rule prevails in circumstantial evidence cases. State v. Townsend, 525 S.W.2d 842 (Tenn. 1975). In my view, the evidence does preponderate against petitioner’s guilt.

I.

The State called three witnesses.

The first of these was the owner of the burglarized premises who testified as to the fact of the burglary but whose testimony contains nothing that would tend to incriminate petitioner.

The principal witness was Sheriff Cecil Byrge of Morgan County. On the night of the burglary, at about midnight, he was on routine patrol in the area of the burglarized premises. He observed an automobile parked on the side of the Old Crossville Road, directly above the burglarized premises. He threw his aircraft landing lights onto the parked vehicle and, upon doing so, saw petitioner and Terry Langley behind the car “hunkered over.” They started running up the road.

After looking into the open trunk and generally about the car and observing various items of merchandise, he followed them on foot, searching along the side of the road with his flashlight. The Sheriff’s search was apparently impeded by the fact that “on the banks there’s pines and evergreens and bushes and it’s kind of in the woods like.” The woods reach a point to within ten feet of the road. From the time he first saw petitioner and Langley “hunkered over” until they were out of sight was “just a few seconds.”

The State’s final witness was Wilda McCarty, petitioner’s sister, who owned the automobile in and around which the stolen merchandise was found. Petitioner had borrowed her car around seven or eight o’clock in the evening and was “red-eyed” drunk. She says petitioner lived with her and that he was in Fentress County “a long time” before he was arrested, driving about, “going anywhere he wanted to,” and making no effort to hide.

The State closed and the petitioner made a motion for a directed verdict. At that time the State had proved:

a. that a burglary had been committed
b. that petitioner and a companion were in the immediate vicinity around midnight
c. that the fruits of the burglary were in an automobile borrowed by petitioner from his sister
d. that petitioner and Langley ran when the Sheriff approached.

While the proof, at this stage was marginal, the trial judge overruled the motion and the petitioner elected to put on proof. This cured the error, if any, in failing to sustain the motion for a directed verdict.

Petitioner’s proof, however, puts an entirely different light upon the matter.

The record shows that Langley had pleaded guilty and was confined in the state penitentiary. The able and experienced District Attorney General apparently knew that his case was on fragile foundation without Langley’s testimony. He, therefore, procured a subpoena for Langley and obtained an order from the trial judge directing that Langley be delivered to the custody of the Sheriff of Morgan County for his appearance as a witness.

The record shows that on the trial date the District Attorney conferred with Langley. The details of the conversation are not shown in the record, but it is evident that his testimony was not to the General’s liking so he did not call him as a witness. Instead, he was called by petitioner.

Langley testified unequivocally that he, and he alone, unaided and unabetted, committed the burglary. He testified that he and the petitioner, who is shown in the record to have a drinking problem and to have been “on pills”, met up at around 10:00 o’clock, a. m. on the date of the burglary, at a package beer store and they were together the rest of the day and night. He says they drank “quite a bit” during the day and were “drinking all day.”

Around seven or eight o’clock they borrowed Wilda McCarty’s car and with petitioner, who “wasn’t in a condition to drive”, at the wheel they went back to the beer joint and purchased two more six packs of beer. At some point not clearly revealed by the record Langley took over the driving.

After driving around at random, they parked on the side of the Old Crossville Road. After drinking beer for a while, petitioner “passed out" and, as Langley put it, “I got to thinking that I’d just go down to Mr. Smith’s and break in his premises.” He did not discuss it with petitioner; petitioner did not accompany him or help in any way. As Langley said of petitioner, “[t]he man did not know where he was at,” and “he didn’t have the ability to go any place with me.” When the Sheriff approached and after Langley had warned him, petitioner “did stumble and went over to the left and laid down.” By way of further explanation Langley says that petitioner “went off on the weeds” and “on the passenger side” of the car.

Langley testified that while petitioner was passed out in the ear he made three trips to and from the burglarized premises. The first trip was around 9:30 or 10:00 o’clock and all three trips were completed when the Sheriff arrived on the scene sometime around midnight or shortly thereafter. Upon his return from the third trip petitioner was no longer “passed out” but was “sitting in the car with the door open with his head bent over.”

The petitioner, testifying in his own behalf, says he was drunk and doesn’t know what happened. He does remember the Sheriff’s arrival and trying to run. He went over into the woods at the edge of the road and stayed there all night.

Petitioner says that he “hid out in this little trailer for about two or three, days, and then I went to Florida,” where he stayed for about six weeks. When asked on cross-examination why he did not go to the Sheriff and tell him what happened, he responded:

Well, see, like when you been drunk about six years, you don’t take a chance on going to jail. I mean, I like I would, more than likely, I believe I would have probably or could have died.

The State called the Sheriff on rebuttal to testify that he found no beer cans in or around the car.

At the conclusion of this rebuttal testimony the defendant renewed his motion for a directed verdict.

II.

Petitioner was indicted for burglary and larceny. The jury found him guilty of burglary in the third degree, and, by its failure to respond to so much of the indictment as charged larceny, acquitted him of that charge. Conner v. State, 531 S.W.2d 119 (Tenn.Cr.App.1975). Thus we deal only with a burglary conviction. The elements of third degree burglary are:

a. the breaking and entering into a business house, etc.
b. with intent to commit a felony.

There is no direct evidence that petitioner committed any act of burglary. To the contrary the proof shows without contradiction that petitioner was drunk and passed out at the time the burglary was committed; that he had no advance knowledge of it; that he did not go into the building; that Langley did not discuss it with him; that petitioner did not help, assist, aid or abet in any way; and that at the time of the commission of the burglary he didn’t even “know where he was at.”

Quite aside from the defendant’s own version of the facts, this was the sworn testimony of Langley who was subpoenaed by the State to testify as a witness for the State. His testimony stands without contradiction and his credibility was not attacked. Where the testimony of a witness is not contradicted, either by direct proof or by circumstances inconsistent with its truth, it must be taken as true. Cleveland Wrecking Co. v. Butler, 57 Tenn.App. 570, 421 S.W.2d 380 (1967). The appellate courts will not permit the uncontradicted testimony of a witness to be discarded or disregarded arbitrarily. Frank v. Wright, 140 Tenn. 535, 205 S.W. 434 (1918).

The State, having been responsible for bringing Langley into court, is hardly in a position to attack his testimony. In point of fact it does not do so. The only area wherein the State takes specific issue with Langley is his testimony that “petitioner was incapable of running from the sheriff and only managed to stumble to the side of the road” whereas the Sheriff said that “both men ran up the road.”

We do not regard this seeming inconsistency as being significant. The Sheriff testified that he saw them for “just a few seconds.”

The only evidence tending to indicate petitioner’s guilt was (1) that the automobile belonged to his sister, (2) that the stolen goods were found in and about his car and (3) flight. All three of these, even if accepted fully and given their most unfavorable implications, fall far short of establishing guilt beyond a reasonable doubt.

It is true that the automobile belonged to petitioner’s sister, but it is undisputed that he was in no shape to operate it and had ceded all possession and control of it to Langley.

It is true that the articles of stolen merchandise were found in and around the automobile. That this is an incriminating circumstance there can be no doubt, but again the undisputed proof shows that Langley burglarized the premises and “toted” the loot back to the car.

It is true that Tennessee follows the general rule that “proof of possession of recently stolen goods gives rise to the inference that the possessor has stolen them.” Bush v. State, 541 S.W.2d 391 (Tenn.1976). But, as said in Bush :

A legal presumption is a fiction of the law and is an assumption for convenience, but where proof to the contrary is introduced, the assumption is waived for it is no longer logical to assume a fact which is refuted by positive testimony. Id. at 395.

However, the inference is not completely destroyed by positive proof but remains to be weighed by the jury along with other facts and circumstances. In the case at bar, there are no other convincing facts and circumstances against which to weigh the uncontradicted proof, unless flight may be so regarded.

The record shows, first, that the petitioner ran from the Sheriff. This initial flight is susceptible of two interpretations. First, it is arguable that he ran because he was guilty. Second, it is equally plausible to say that he was innocent but ran to avoid involvement in a suspicious operation; however, in the context of this case it is more plausible to say that he ran because he was then and there guilty of the offense of public drunkenness. The State argues that his ability to run is indicative that he was not drunk. This argument is without merit. Any drunk has the gumption to run from the high Sheriff. This might properly be characterized as a prevailing and prudent practice.

Again, the trip to Florida may have been the flight of a guilty man or it may have been the flight of an innocent man caught in a web of suspicious circumstances and feeling it expedient to disappear until things cooled down. The record doesn’t show why he ran. Neither does it show why he elected voluntarily to return and move openly in and around Morgan County. If the flight be construed as an act of guilt, the voluntary return must be treated as an act of innocence. The record does not establish with any degree of clarity the reasons for the sojourn in Florida.

In order to sustain this conviction, we must assume that the petitioner did that which the proof, without contradiction, shows he did not do and that which the State wholly failed to prove he did. This we cannot do.

This conviction rests wholly upon circumstantial evidence. The rule in Tennessee, as approved in Overton v. State, 521 S.W.2d 229, 232 (Tenn.Cr.App.1974), is that

the evidence must be not only consistent with the guilt of the accused but it must also be inconsistent with his innocence and must exclude every other reasonable theory or hypothesis except that of guilt, and it must establish such a certainty of guilt of the accused as to convince the mind beyond a reasonable doubt that he is the one who committed the crime.

We recognize that normally this is a jury question, but the fact remains that the jury in this case did not have before it evidence sufficient to “exclude every other reasonable theory or hypothesis except that of guilt.”

At the very outset we recognized the correct standard of review. This rule, however, “presupposes record proof presenting a factual basis for consideration and determination by the jury.” Hughes v. State, 3 Tenn.Cr.App. 602, 465 S.W.2d 892, 896 (1970). Here, there was no such factual basis. I would, therefore, hold that the evidence preponderates against the verdict of the jury.

I am authorized to state that Special Justice WILLIAM I. DAVIS, Jr., concurs in this dissent.

      . We consider this case upon certiorari notwithstanding the flagrant violation of Rule 12 of this Court in that no assignments of error have been filed. The respondent’s brief, extracting a statement from the petition, comes up with three assignments, all attacking the sufficiency of the evidence. In view of this position taken by the State, and in the interest of justice, we consider the case on its merits.

      . As a matter of fact his testimony was favorable to petitioner. He says that a month or two after the burglary petitioner came to his place of business and told him that petitioner was in the car drunk and passed out, that he took no part in the burglary, that he would help him try to find the stolen property, and that after the Sheriff came “he laid off up there in the woods.”


author: BROCK, Justice.

text:
    Helen Paris BRACEY, Executrix of the Estate of J. O. Paris, Appellant, v. Jayne Ann WOODS, Commissioner, Department of Revenue, Appellee.
    Supreme Court of Tennessee.
    Oct. 10, 1978.
    George F. Henry, Jr., Cookeville, for appellant.
    Jim G. Creecy, Asst. Atty. Gen., Nashville, for appellee; Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

BROCK, Justice.

The plaintiff, Bracey, brought this action to recover inheritance taxes levied against the estate of J. 0. Paris and paid under protest. The theory of the plaintiff expressed in her complaint was that the defendant Commissioner had appraised the property of the estate at an excessive amount. The complaint also disclosed that the plaintiff had filed an appeal with the State Board of Equalization contesting the assessment and appraisal made by the defendant Commissioner and that this appeal was pending at the time the instant suit was instituted.

The defendant Commissioner defended the complaint by filing a motion to dismiss upon the ground that the circuit court was without jurisdiction of the subject matter by reason of the failure of the plaintiff to exhaust her administrative remedy before the State Board of Equalization as set out in T.C.A., § 30-1620. The trial judge found the motion to dismiss to be meritorious and accordingly dismissed the complaint and the plaintiff has appealed from that order of dismissal.

The pertinent provisions of T.C.A., § 30-1620, are as follows:

“Upon receipt of such sworn return and inventory from the executor, administrator or trustee, the commissioner shall proceed to make an appraisal of the various items of the gross estate and to investigate deductions claimed by such representative of the estate.
“In making said appraisal, the commissioner shall direct his deputies, agents or assistants to investigate the valuation placed upon each item of the estate, with a view to determining its fullness and fairness, and, in the absence of written objection upon the part of the representative of the estate, his appraisal shall be final and binding upon the estate; provided, however, that such representative shall have the right to file with the state board of equalization, within thirty (30) days from the date of such appraisal, an appeal from the appraisal. A copy of the appeal shall be filed with the commissioner of revenue who shall file with the state board of equalization his findings concerning the appraisal; the board shall have authority to consider the exceptions filed, hear proof and determine the valuation in dispute, and the findings by a majority vote, of said board shall be conclusive as to all parties in interest, subject only to the constitutional right of review in the courts.”

As above stated, the plaintiff invoked the right of administrative review as set out in the foregoing statute by filing her appeal with the State Board of Equalization and the Commissioner filed a response to that appeal, but the plaintiff did not exhaust the administrative remedy, choosing, instead, to file the instant suit, before the State Board of Equalization had conducted a hearing and determined the merits of her claim of excessive appraisal and assessment. This she may not do under the facts of this case and the express provisions of T.C.A., § 30-1620, and T.C.A., § 67-2303. The latter code provision permits a taxpayer to pay disputed taxes under protest and sue for their recovery but only “in all cases where [a remedy is not] otherwise provided . . .” Of course, in this case, the taxpayer’s remedy is otherwise provided by T.C.A., § 30-1620, above quoted.

It is a settled rule in this State and is the general rule in other jurisdictions that “where an administrative remedy is provided by statute, relief must be sought by exhausting this remedy before the courts will act.” Tennessee Enamel Mfg. Co. v. Hake, 183 Tenn. 615,194 S.W.2d 468 (1946); Elliott v. Equalization Board, 213 Tenn. 33, 372 S.W.2d 181 (1963); Fentress County Bank v. Holt, Tenn., 535 S.W.2d 854 (1976); 2 Am.Jur.2d Administrative Law § 595 (1962); 73 C.J.S. Public Administrative Bodies and Procedures § 41 (1951). Of course, the mere initiation of the prescribed administrative procedure is not a compliance with this rule; the administrative remedy must be pursued to an appropriate conclusion, it must be exhausted. The courts will not interfere at intermediate stages of an administrative proceeding. 73 C.J.S. Public Administrative Bodies and Procedures § 41a, b, and cases there cited.

We hold that the plaintiff must exhaust the administrative remedy provided by T.C.A., § 30-1620; that is, she must await the hearing and determination of her appeal on the merits by the board before seeking relief in the courts. Elliott v. Equalization Board, supra; Fentress Counrty Bank v. Holt, supra; Rosewood, Inc. v. Garner, Tenn.App., 476 S.W.2d 273 (1972). The Fentress County Bank and Rosewood eases, supra, recognize an exception to this rule that is not applicable to the instant case, i. e., if the taxpayer raises only issues which are strictly questions of law, rather than questions of fact, respecting the assessment and valuation of his property he may raise such strictly legal questions by access to the courts without exhausting the administrative remedy provided by T.C.A., § 30-1620, provided he first pays the taxes in question under protest. That exception is not applicable in the instant case because the only issues raised by the taxpayer are factual ones respecting the alleged exces-siveness of the appraisal and valuation of the taxable property by the Commissioner.

The dismissal of the complaint by the trial court is affirmed and costs of appeal are assessed against the appellant and surety-

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


text:
    RUTHERFORD COUNTY BEER BOARD, Appellant, v. David ADAMS, d/b/a 96 Market, Appellee; RUTHERFORD COUNTY BEER BOARD, Appellant, v. Thomas McCLAIN and Frank McClain, d/b/a Eldorado Recreation Club, Appellees.
    Supreme Court of Tennessee.
    Oct. 10, 1978.
    Wm. T. Sellers, Murfreesboro, for appellant.
    John S. Lansden, John G. Mitchell, Jr., Murfreesboro, for appellees.
   OPINION

BROCK, Justice.

The Beer Board of Rutherford County appeals from the decree of the Chancery Court which granted to the plaintiffs in these consolidated cases permits for the sale of beer at retail.

The defendant beer board refused to issue permits to the plaintiffs upon the ground that their premises were located, in each instance, within 2,000 ft. of schools, churches, or other places of public gathering. T.C.A., § 57-205, authorizes counties to forbid the sale of beer within 2,000 ft. of such places of public gatherings and, pursuant to this statute, the Rutherford County Quarterly Court in 1939 adopted a resolution forbidding the issuance of permits to sell beer “within 2,000 ft. of any church, school or other place of public gathering.”

The plaintiffs, however, contend that the “2,000 ft. rule” has been invalidated by the action of the Rutherford County Beer Board in issuing permits for the sale of beer at retail to other applicants whose premises were located less than 2,000 ft. from a church, school or other place of public gathering.

This Court has held in clear and unmistakable terms that T.C.A., § 57-205, authorizes a county, in its discretion, to adopt or not to adopt the 2,000 ft. prohibition but that, once the prohibition is adopted, it must be uniformly applied to everyone and that any discretionary application of it is invalid. Serv-U-Mart, Inc. v. Sullivan County, Tenn., 527 S.W.2d 121 (1975); Seay v. Knox County Quarterly Court, Tenn., 541 S.W.2d 946 (1976); City of Murfreesboro v. Davis, Tenn., 569 S.W.2d 805 (1978). In the City of Murfreesboro case, this Court said:

“Discriminatory enforcement having been established, any distance ordinance is completely removed as a valid ground for denial of a beer permit. (Citation omitted.)
“In Serv-U-Mart, Inc. v. Sullivan County, supra, we held that the discriminatory enforcement of a 2,000 ft. rule, authorized by T.C.A. § 57-205, invalidates the rule. In Seay v. Knox County Quarterly Court, supra, we held that a showing that three establishments in the county retained their licenses in violation of the rules supported a finding of discriminatory enforcement, invalidating its 2,000-ft. rule.” 569 S.W.2d at 807.

The record in the instant case shows that in recent years several permits have been issued by the Rutherford County Beer Board for the sale of beer at establishments located within less than 2,000 ft. of a church, school or other place of public gathering, thus, under the above authorities, invalidating the 2,000 ft. rule in Rutherford County. This has been especially true since 1969. These being the facts, the defendant beer board cannot rely upon the 2,000 ft. prohibition in denying permits to the plaintiffs. No other reason is alleged or shown in the record for denial of permits to the plaintiffs.

The decree of a trial court granting or denying a beer permit comes to this Court accompanied by a presumption of correctness and the burden is on the appellant to show that the evidence preponderates against the judgment of the trial court. Gibson v. Ferguson, Tenn., 562 S.W.2d 188, 189 (1976); Adams v. Monroe County Quarterly Court, 214 Tenn. 270, 379 S.W.2d 769, 771 (1964); Cantrell v. DeKalb County Beer Board, 213 Tenn. 568, 376 S.W.2d 480 (1964). In this case the defendant has failed to carry that burden; the record abundantly supports the finding of the Chancellor that the Rutherford County 2,000 ft. rule has been invalidated by discretionary, discriminatory application of it.

The defendant Beer Board argues that, as presently constituted, it has never issued a beer permit to an applicant whose place of business is located within 2,000 ft. of a school, church or other place of public gathering and that the discriminatory and discretionary application of the 2,000 ft. rule in Rutherford County was by their predecessors in office for whose conduct they are not accountable. This argument is without merit; the Rutherford County Beer Board is the legal entity, the instrument of government, rather than the individual members constituting the board at any given time. The issue is not whether the present members of the Rutherford County Beer Board have discriminatorily and dis-cretionarily applied the 2,000 ft. rule but whether the board, as a continuing entity of government, has engaged in such discriminatory and discretionary application.

The decree of the Chancellor in these cases is affirmed and the costs are assessed against the appellant, the Rutherford County Beer Board.

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


text:
    STATE of Tennessee, Petitioner, v. Billy Wayne CABBAGE, Respondent.
    Supreme Court of Tennessee.
    Oct. 10, 1978.

      Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville (Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel), for petitioner.
    Edward H. Stevens, University of Tennessee Legal Clinic, Knoxville, for respondent.
   OPINION

HARBISON, Justice.

Respondent, Billy Wayne Cabbage, was convicted of selling and delivering a Schedule II controlled substance in violation of T.C.A. § 52-1432(a)(1)(B) and received a sentence of not less than five nor more than seven years in the state penitentiary. Upon post-trial motion, the trial judge approved the verdict and overruled all assignments of error.

The Court of Criminal Appeals, however, reversed the conviction, finding that the evidence preponderated against the verdict, and remanded the case for a new trial. It found that the testimony of respondent and of an alibi witness who corroborated him outweighed the testimony of the undercover agent for the State, whose evidence was otherwise conceded to be sufficient to support the conviction.

With utmost deference to the Court of Criminal Appeals, our reading of the record, in light of fundamental and well-settled rules governing appellate review of criminal eases, leads us to a different conclusion. Further, as hereinafter discussed, the procedure followed by the Court of Criminal Appeals, in ordering a re-trial because it found the evidence to preponderate against the verdict, is no longer available under recent decisions emanating from the Supreme Court of the United States.

Other than a toxicologist who identified the tablets sold by respondent to the undercover agent as controlled substances, and a stipulation as to the chain of custody and delivery of the tablets to him, the only witness offered by the State was a 23-year-old undercover agent, Alan Taylor Smith. He testified positively that the respondent and one Robin Daniels sold him the drugs in question at a mobile home occupied by Daniels in the early afternoon of March 29, 1975. He testified in detail as to conversations he had with respondent and Daniels, and stated that respondent gave him without charge some blue “speed” tablets as samples to see if Smith might want to purchase some of these in the future.

Smith testified as to labeling and preserving the evidence, turning it over to narcotics officers of the Knoxville Police Department, and to the subsequent arrest of respondent in April. When recalled in rebuttal, he testified that he remembered seeing some boxes of shirts in the partially opened trunk of respondent’s automobile as he was leaving the premises. He said that respondent asked Smith if the latter would like to purchase any of the shirts. Respondent told Smith that he was planning to leave the mobile home to make delivery of some of the shirts.

Respondent testified that he was engaged in selling irregular shirts which he purchased from a factory in Claiborne County. He testified that Robin Daniels was a relative by marriage and that he had visited the mobile home on a few occasions. On direct examination, he testified to a prior felony conviction in connection with worthless checks.

Respondent denied that he was at the Daniels trailer on March 29, 1975, denied making or participating in the drug sale, and testified that he did not know and had never talked to the undercover agent prior to the preliminary hearing following his arrest. He was arrested April 28,1975, and the preliminary hearing was held in June. He was indicted on September 2.

Respondent said that he learned at the preliminary hearing that the alleged date of the drug sale with which he was charged was March 29, 1975. He testified that he then searched for records and found that he had been in Chattanooga, Tennessee on that date, ánd had had his automobile repaired there. He testified that he had left his father’s home in Union County about 10 a. m. on the morning of March 29,1975, drove to Chattanooga to sell shirts in that area, and that he experienced car trouble shortly before reaching Chattanooga. He said that he arrived in that city about noon and took his car to Cox’s Garage on Wilder Street for repairs. He testified that Mr. Jack King worked overtime on that Saturday afternoon to repair the automobile, and completed the work about 6:30 p. m. He stated that he then returned to his father’s home in Union County. Because King had worked overtime and had stayed after the usual closing time for the garage, respondent had bought some Easter baskets for King to give to the latter’s children, the date in question being Saturday immediately preceding Easter Sunday. He introduced in evidence a repair bill from Cox Auto Parts, in the amount of $90.52, bearing the date of March 29, 1975.

Respondent was corroborated in many respects by the testimony of Mr. Edward Jack King, the automobile mechanic employed by Cox Auto Parts in Chattanooga. This witness said that respondent arrived at the garage shortly before noon. The shop usually closed at about 3 p. m. on Saturday, but Mr. King remained late in order to repair respondent’s automobile. He and respondent engaged in conversation while the repair work was being done, and he told respondent that he needed some money to buy things for his children for Easter. Respondent then went out and purchased two Easter baskets for the children.

The jury apparently rejected the alibi testimony offered on behalf of respondent, strong and persuasive though it may have appeared, and resolved the disputed factual issues in favor of the State. The jury was faced with the alternative of accepting the testimony of the undercover agent or that of respondent, a once-convicted felon, and his alibi witness. No other witnesses were produced by either side. The Court of Criminal Appeals found that the testimony of the alibi witness was totally unim-peached, was absolutely trustworthy, and that it was therefore of controlling significance.

In this regard, we are constrained to differ with that Court. There was one glaring discrepancy in the testimony of the alibi witness, which is pointed out to us by the State and may well have impressed the jury. This involved the testimony of Mr. King to the effect that respondent returned to King’s shop at some time after the present criminal proceedings had been instituted. King testified that he recognized respondent. Both he and respondent said that this visit was in August or September, 1975. King testified:

“No, it was the same year, you know, when he first come back. I didn’t recognize the car at first when he first come back, and then I recognized the car. You know, I thought maybe he was having more car trouble. You know, I told him any time he was in town if he had more car trouble I’d be glad to work on it.” (Emphasis supplied.)

Earlier he had also testified:

“Yes, sir. I didn’t recognize the car when it first pulled in. When I seen Mr. Cabbage, I recognized the car and him too.” (Emphasis supplied.)

The.principal difficulty with this testimony is that the Rambler automobile which respondent Cabbage was driving when he went to Chattanooga on March 29, 1975, was seized in April when Cabbage was arrested, confiscated by State officials and sold, so that Mr. Cabbage could not possibly have been driving the same automobile when he returned to Chattanooga to contact his alibi witness. Cabbage testified, “I never did get the car back.”

This, in our opinion, is a circumstance which a finder of fact was entitled to consider, and which leads us to disagree with the conclusion of the Court of Criminal Appeals that the alibi testimony was totally and completely uncontradicted, credible, and worthy of belief in every respect.

Further, even if the alibi witness should not be totally discredited and the trier of fact should believe that respondent did in fact go to Chattanooga and did have his car repaired on March 29, the time sequences are such that the jury might conclude that respondent still made the drug sale as claimed by the State. In other words, they might partially accredit respondent’s proof and still convict.

Respondent said that it took about two hours for him to drive to Chattanooga. Smith testified that the drug sale occurred about 1:40 and that he left the mobile home at 1:55. Respondent was then about to leave to sell shirts.

Cabbage first said that when he got to the garage where King was employed,

“He worked on my car a couple of hours, yes sir.” (Emphasis added.)

Both he and King said that the work was completed at about 6:00 or 6:30. King said that the repairs performed ordinarily could be done very quickly but he was delayed by having to send out for parts.

The jury could have believed that Cabbage arrived at the garage nearer to 4 p. m. than noon under the proof in the record, and this would have left time for the drug sale to have occurred as alleged.

We are unable to reconcile the disposition of this case by the Court of Criminal Appeals with the well-settled rule that all conflicts in testimony, upon a conviction in the trial court, are resolved in favor of the State, and that upon appeal the State is entitled to the strongest legitimate view of the trial evidence and all reasonable or legitimate inferences which may be drawn therefrom. The Court of Criminal Appeals recognized and quoted this rule, but, in our opinion, did not apply it here.

We are of the opinion that a classic question for the jury was presented by the testimony offered on behalf of the State and of the respondent in this case. The jury rejected the testimony of the respondent and accepted that of the State. The trial judge was in the second-best position to evaluate the trial testimony, since he, like the jury, saw and heard the witnesses and was able to form an impression of their credibility. He concurred in and approved the jury verdict.

It has been stated in innumerable cases: “Neither this Court, nor the Court of Criminal Appeals, is free to re-evaluate the evidence as it pleases. A guilty ver-diet by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

In Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768 (1966), the Court said:

“This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in this Court.”

Respectfully, we reverse the decision of the Court of Criminal Appeals and reinstate the judgment of the trial court.

Because of a series of decisions rendered by the United States Supreme Court on June 14, 1978, however, we feel it appropriate to note that the previous procedure in this state under which trial and appellate courts could set aside jury verdicts and award new trials simply upon the preponderance of the evidence, is no longer permissible. In the case of Burks v. United States, - U.S. -, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the Supreme Court held that when a conviction is set aside for insufficiency of evidence, principles of double jeopardy prevent re-trial of the accused. In reaching this decision, the Court overruled a number of earlier cases to the contrary.

On the same date, the Court released an opinion in the case of Greene v. Massey, -U.S.-, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), and held that the standard announced in Burks was fully applicable to state criminal proceedings.

In State v. Thompson, 549 S.W.2d 943 (Tenn.1977), this Court discussed in some detail the rules of practice and procedure governing directed verdicts in criminal cases. The Court noted that because of the nature of criminal cases, there could not be a complete analogy between civil and criminal procedure as to the functions of judge and jury. Heretofore in Tennessee the “thirteenth juror” rule, familiar in civil cases, has also been applied in criminal cases. Under that rule a trial judge could set aside a jury verdict upon grounds of preponderance alone and direct a retrial of the action without entering judgment of acquittal (or, in civil cases, a directed verdict). This procedure can no longer be followed in criminal cases, either at the trial or the appellate level.

The rule governing judgment of acquittal is contained in Rule 29, Tenn.R.Crim.P. as follows:

“The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.”

Sufficiency or insufficiency to convict would henceforth seem to be the appropriate test or standard by which both trial and appellate courts must view the adequacy of the evidence, because of the double jeopardy principles enunciated in Burks and Greene, supra. In our opinion, however, the basic rules governing appellate review quoted above, in which conflicts in the evidence are resolved in favor of the State and the strongest legitimate view of the convicting evidence afforded it, are not affected and should continue to be applied in the review of criminal convictions.

Costs in this cause are taxed to the respondent.

COOPER, J., and DAVIS, Special Justice, concur.

HENRY, C. J., and FONES, J., dissent.

HENRY, Chief Justice,

dissenting.

I respectfully dissent. In reversing the conviction, Judge Wayne Oliver, in a characteristically comprehensive, convincing and exhaustive opinion, held:

The defendant was completely corroborated in every essential detail by Mr. King, the mechanic who repaired his car, including identification of the copy of the repair bill dated March 29,1975, which he prepared himself when the job was completed. Neither the defendant nor Mr. King was impeached in any material aspect of their testimony. And most significant, that repair bill (Exhibit 3) stands unshaken in this record. (Emphasis supplied).

In my view, this record clearly and conclusively establishes it to be a fact that while an undercover agent was making a drug purchase in Knoxville, the respondent was at a garage in Chattanooga.

The majority seizes upon an infinitesimal, undeveloped and all but irrelevant discrepancy in the testimony of the alibi witness, viz his statement that he recognized respondent’s car on an occasion subsequent to its having been confiscated.

The record does not disclose any significant consideration to this testimony during the trial. In fact, counsel did not even question respondent as to what car he acquired after the confiscation of his turquoise Rambler. The record contains no description of the replacement automobile. We can assume that it bore some similarity to his former automobile or we can assume that it bore none. It is difficult for me to understand the materiality of this discrepancy or its significance. The sole relevancy of the line of testimony containing this statement was to establish the identity of the respondent.

The next straw grasped by the majority is an isolated statement by respondent to the effect that King worked on his car a “couple of hours.” From this the majority reasons that Cabbage could have “arrived at the garage nearer to 4 p. m. than noon . and this would have left time for the drug sale to have occurred” in Knoxville.

This ignores the consistent testimony of respondent and King that respondent arrived at the garage around noon. It ignores the undisputed testimony that the garage closed at 3:00 p. m. on Saturdays, with the result that had respondent arrived at 4:00 p. m., the garage would have been closed. It ignores the proof that a significant portion of the some six or more hours was spent in endeavoring, on a Saturday afternoon, to obtain parts for a Rambler automobile.

The rejection of this documented alibi defense solely on the basis of the testimony of a paid informer, in a case where the arrest was made thirty days after the fact, and where admittedly respondent neither possessed nor sold the drugs listed in the indictment is disturbing.

I would affirm the unanimous decision of the Court of Criminal Appeals, and dismiss this prosecution.

I am authorized to state that Mr. Justice FONES concurs in this dissent.

      . Now referred to as judgment of acquittal under the Rules of Criminal Procedure. Rule 29, Tenn.R.Crim.P.

      . Helton v. State, 547 S.W.2d 564 (Tenn.1977).


text:
    Terry L. OVERTURF, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Oct. 10, 1978.
    Kelly, Leiderman, Cameron & Kelly, J. Harvey Cameron, Jasper, for petitioner.

      Linda Ross Butts, Asst. Atty. Gen., Nashville, for respondent; Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

BROCK, Justice.

The defendant, Terry L. Overturf, was convicted of grand larceny and received a sentence of three years imprisonment in the penitentiary. The Court of Criminal Appeals affirmed the judgment and the defendant petitioned this Court for certiorari.

Although other issues are raised, we deem it necessary to consider only the claim of the defendant that the lower courts erred in failing to sustain his plea of former jeopardy.

The defendant has been subjected to two trials for this offense and has been convicted at each trial. During the first trial in November, 1974, and at the conclusion of the introduction of evidence by the State the defendant moved the court for a directed verdict of acquittal upon the ground that the State’s evidence was insufficient to warrant a conviction. The trial judge denied the motion but the defendant elected to stand upon it and did not introduce any evidence in his defense. However, his code-fendant did introduce evidence and at the conclusion of all the evidence in the case the defendant again moved the court for a directed verdict of acquittal because of insufficiency of the evidence. Although the trial judge expressed grave doubt of the sufficiency of the evidence respecting the defendant, he elected to overrule the motion for a directed verdict of acquittal and submitted the case to a jury which returned a verdict of guilty. After the verdict the defendant again attacked the sufficiency of the evidence by “Motion For a New Trial and/or Directed Verdict” and also filed separately a “Plea of Former Jeopardy” as follows:

“Defendant for plea of former jeopardy, would show to the court that he has already been tried on this same identical charge in this court previously.”

On January 20,1975, the court considered both the defendant’s motion for a new trial and/or directed verdict and his plea of former jeopardy. It overruled the motion for a directed verdict of acquittal and the plea of former jeopardy but proceeded to grant the defendant’s motion for a new trial, making this finding:

“The Court, after hearing argument of counsel and after due consideration, is of the opinion, that the evidence in this case is insufficient to warrant the conviction in this cause, and that the motion for a new trial is well taken and should be sustained.”

The defendant duly excepted to the action of the court, prayed an appeal to the Court of Criminal Appeals, which was for the time being denied, and obtained permission to file and did timely file a wayside bill of exceptions.

In due course the defendant was tried again in April, 1975, upon the same charge and was again found guilty and sentenced to the term of three years. Following this second judgment of conviction, the defendant filed another motion for a new trial and/or directed verdict in which he, among other errors, alleged that the court had erred in overruling his plea of former jeopardy. This motion was denied and defendant appealed.

Prior to 1968 the trial judges of this State were not authorized by statute to direct verdicts of acquittal in criminal cases, although some judges were of the opinion that they possessed such a power as an inherent part of the judicial function and, accordingly, granted motions for directed verdicts of acquittal without statutory authority. In 1968 the legislature enacted T.C.A., § 40-2529, which provided:

“Directed Verdict — In a criminal prosecution the trial judge shall direct the jury to acquit the defendant if at the close of the evidence for the prosecution, or at the close of all the evidence, the court is of the opinion that the evidence is insufficient to warrant a conviction.”

It was this statute which the defendant invoked in the instant case.

Prior to the enactment of T.C.A., § 40-2529, it was considered that the only remedy available to the trial judge, when the evidence in a criminal case was, in his opinion, insufficient to support a conviction, was to grant the defendant a new trial. State v. Ferguson, 165 Tenn. 61, 52 S.W.2d 140 (1932).

Clearly, however, T.C.A., § 40-2529, fully authorized the trial judge to direct a judgment of acquittal when in his opinion the evidence is insufficient to warrant a conviction, whether at the close of the evidence for the prosecution or at the close of all the evidence.

Moreover, in our opinion, when the evidence is insufficient to warrant a conviction the trial judge has no alternative but to direct a verdict of acquittal; in such a situation, it is no longer permissible for him to deny the motion for a judgment of acquittal and, after verdict, to grant a new trial instead. See State v. Cabbage, Tenn., 571 S.W.2d 832 (1978), decided and released along with this opinion. This is so because of the recent decisions of the United States Supreme Court in Burks v. United States, - U.S. -, 98 S.Ct. 2141, 57 L.Ed.2d 1 and Greene v. Massey, Correctional Superintendent, - U.S. -, 98 S.Ct. 2151, 57 L.Ed.2d 15, both decided June 14, 1978. In Burks, which was a federal prosecution, it was held:

“The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.”

And in Greene, a state prosecution, the court said:

“In Burks v. United States, - U.S. -, 98 S.Ct. 2141, 57 L.Ed. 1 decided today, we have held that the Double Jeopardy Clause precludes a second trial once a reviewing court has determined that the evidence introduced at trial was insufficient to sustain the verdict. Since the constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings, Benton v. Maryland, [395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)] we are bound to apply the standard announced in Burks to the case now under review.”

The rule of the Burks and Greene cases, supra, applies only to those cases in which the conviction in the first trial is set aside because of insufficiency of the evidence; a second trial is not prohibited if the original conviction is set aside because of errors in the first trial other than insufficiency of the evidence. The Court in Burks stated:

“In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e. g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecu-torial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished (citation omitted).
“The same cannot be said when a defendant’s conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.”

It is clear that the Burks and Greene rule is applicable to the case at bar since the only reason given by the trial judge for setting aside the original conviction and ordering a new trial was . . that the evidence in this case, is insufficient to warrant a conviction in this cause, . Insufficiency of the evidence is the only error which the trial court found in the original trial and was the only ground upon which the new trial was ordered. In these circumstances it was error for the trial court to overrule the defendant’s plea of former jeopardy and for the Court of Criminal Appeals to affirm that decision.

Accordingly, the judgment of the Court of Criminal Appeals and that of the trial court are reversed and the cause is remanded to the trial court for entry of a judgment of acquittal. Costs incurred on appeal are assessed against the State.

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

      . In the Court of Criminal Appeals the defendant asserted that the trial court had erred in denying his motion for a directed verdict of acquittal in the first trial, but the Court of Criminal Appeals refused to consider this contention on the ground that it was not contained in the motion for a new trial following the second trial and conviction. This Court, in Overturf v. State, Tenn., 547 S.W.2d 912 (1977), held that the defendant had properly preserved the issue by wayside bill of exceptions and remanded the case to the Court of Criminal Appeals for its consideration on the merits. Upon the remand that court found no error in the judgment of conviction and affirmed it.

      . This subject is now controlled by Rule 29, Tennessee Rules of Criminal Procedure.

      . The criterion by which the motion for acquittal should be determined is whether, considering the whole record, the evidence fails to establish guilt beyond a reasonable doubt. See Rule 13(e), Tennessee Rules of Appellate Procedure (Proposed).


author: NEARN, Judge. NEARN, Judge.

text:
    Blondell FULLER, Administratrix of the Estate of Robert Fuller, Deceased, and Blondell Fuller, Individually, Appellant, v. Dean SPEIGHT, Executor of the Estate of Louise R. Speight, Appellee.
    Court of Appeals of Tennessee, Western Section.
    Feb. 14, 1978.
    Rehearing Denied March 13, 1978.
    Certiorari Denied by Supreme Court Sept. 11, 1978.

      Avon N. Williams, Jr., Nashville, for appellant.
    James D. Senter, III, Humboldt, for ap-pellee.
   NEARN, Judge.

Louise R. Speight ran a stop sign at the corner of Vine Street and Sixth Avenue in the City of Humboldt, Tennessee and her vehicle collided with one being driven by Robert Fuller and owned by his wife, Blon-dell Fuller. (Louise R. Speight died prior to suit being filed against her. She died of cancer and not from any injuries sustained in the accident.) The uneontroverted testimony of the passenger in the Fuller vehicle was that the impact from the side threw the passenger’s body into that of the driver. About five or ten minutes after impact, while Mr. Fuller and Mrs. Speight were discussing the matter at the scene, Mr. Fuller slumped down to the ground; was taken to the hospital and there pronounced dead.

Blondell Fuller filed suit against Dean Speight, executor of the estate of Louise R. Speight, seeking recovery in her own right for damages to her vehicle. As administra-trix of her husband’s estate, she sought recovery for his alleged wrongful death. The matter was tried before a jury and a verdict was returned in favor of Mrs. Fuller, individually for her property damage, but a defendant’s verdict was returned in the wrongful death action.

The only real issue was whether or not the death of Fuller was caused by the collision. Prior to the collision Fuller had suffered from generally poor health and heart difficulties. The death certificate of Fuller, issued without benefit of autopsy, listed the cause of death as “coronary thrombosis”. Nineteen months after Fuller’s death the body was exhumed and an autopsy performed by Dr. Jerry Francisco. The autopsy finding was that death was caused by external trauma to the chest which produced a tear in the aorta and resulting internal bleeding.

Twenty-four Assignments of Error are made in this Court. There is nothing to the first twenty-three and they are therefore all overruled. The twenty-fourth is valid and will be sustained.

The twenty-fourth Assignment of Error is to the effect that there is no other evidence but that the death of Robert Fuller was caused by the collision with the Speight vehicle and therefore, there is no evidence from which the jury could find otherwise.

The jury awarded Mrs. Fuller recovery for the full damages to her vehicle. This could not be accomplished without a finding of negligence on the part of Mrs. Speight and no negligence on the part of Fuller. Therefore, in order to find against Fuller in the wrongful death action, the jury of necessity would have to conclude that the collision with the Speight vehicle caused no injury to Fuller which proximately caused his death. We hold that under this record, the jury could not so find.

After conducting an autopsy, Dr. Francisco unequivocably testified as to the cause of death, that is, a rupture or split of the aorta caused by traumatic event. This expert testimony is absolutely uncontradict-ed. The expertise or credibility of Dr. Francisco is not attacked in the record. True, the defense put on expert medical testimony; but not one word of it contradicts or attempts to contradict any of Dr. Francisco’s testimony. All is to the effect that Robert Fuller was a poor physical specimen before the collision, that is, he suffered from numerous frailties including a weak aorta. All that is undoubtedly true; as Dr. Francisco also testified to the same effect, but, a defendant takes a plaintiff as he finds him. The fact that a party is in a weakened condition at the time of the injury is not a causal defense available to the defendant. See Railroad v. Northington (1891) 91 Tenn. 56, 17 S.W. 880. Such condition may be material to the issue of life expectancy, but is not evidence as to the cause of the injury.

In the case of Reserve Life Ins. Co. v. Whittemore (1969 M.S.) 59 Tenn.App. 495, 442 S.W.2d 266, 275, it was held that “Neither the jury nor this Court is justified in ignoring the unimpeached, uncontradicted testimony of a physician in respect to scientific information of which a layman would not be expected to have any reliable knowledge.” In the case before us, it is evident that the jury did ignore the unimpeached and uncontradicted expert medical proof on matters in which they would not have any reliable information.

No one complains of the judgment for property damage rendered in favor of Blondell Fuller. Thus, we affirm that judgment. There is no doubt whatsoever in our mind of the negligence of Mrs. Speight, just as there was none in the jury’s mind. Mrs. Speight’s testimony taken by deposition was that she simply did not see the stop sign and continued through the intersection without stopping until she struck Mrs. Fuller’s vehicle. Therefore, we reverse the judgment below in favor of the Speight estate only and remand for the purpose of fixing the amount of damages for the wrongful death of Robert Fuller. See Perkins v. Brown (1915) 132 Tenn. 294, 177 S.W. 1158.

Costs of appeal are adjudged against the appellee.

Done at Jackson in the two hundred and second year of our Independence and in the one hundred and eighty-third year of our Statehood.

MATHERNE and SUMMERS, JJ., concur.

ON PETITION TO REHEAR

NEARN, Judge.

A petition to Rehear has been filed in this matter which raises no issues not previously considered by the Court and is therefore denied.

MATHERNE, and SUMMERS, JJ., concur.


author: NEARN, Judge.

text:
    STATE of Tennessee on relation of Robert F. SMITH, Commissioner, Department of Transportation, for and on behalf of said Department, Appellants, v. WILKINSON - SNOWDEN - McGEHEE, INC., Riley C. Garner, County Trustee, Glenn Foster, City Treasurer, Appellees.
    Court of Appeals of Tennessee, Western Section.
    March 3, 1978.
    Certiorari Denied by Supreme Court Oct. 2, 1978.
    Brooks McLemore, Jr., Atty. Gen., Charles H. Barnett, Asst. Atty. Gen., Nashville, and E. Brady Bartusch, Sp. Trial Counsel, of Memphis, for appellants.
    Edward G. Grogan and Ben C. Adams, Memphis, for appellee Wilkinson-Snowden-McGehee, Inc.
   NEARN, Judge.

This appeal of a condemnation matter presents the single issue of whether a party may prove that his expert witness was initially employed as such by adversary in the same matter.

The issue an.se in this manner. The State condemned 1.357 acres of the owner’s 23.707 acre tract for the improving of a portion of State Route 4. The State’s value witnesses testified as to land and damages to the remainder, viz.:

Name Land Damages
Owen $49,531.00 $ -0-
Phelps 41,378.00 17,424.00

The owner’s value witnesses testified, viz.:

Name Land Damages
Chandler $69,986.13 $413,120.00
Shepherd 79,799.85 • 362,569.97
Palmer 53,200.00 155,496.00

The jury found $53,200 as the value of the land taken and $155,496 as the damages to the remainder.

In his direct testimony, Palmer, over the objection of the condemnor, brought out that he had originally made this same appraisal for the condemning authority. The authority had chosen not to use Palmer as an expert witness.

There seems to be two out-of-state lines of authority on whether the owner may prove, either by the witness or independently, that the witness was first employed by the condemning authority to make the appraisal on the land condemned, or that he was paid by the condemning authority for making such appraisal. (Of course, the issue is the same, whichever party uses an expert value witness initially employed by the other.)

For the negative of the proposition we find the case of State v. Biggers (Tex.1962) 360 S.W.2d 516; and for the positive, we find City of Baltimore v. Zell (1977) 279 Md. 23, 367 A.2d 14.

We believe that the rule in this state should be that such proof is inadmissible and so hold. It is our view that the Texas Court based its holding to exclude such proof on sound legal principle when it stated:

“That proof could have no relevancy to the issues in the case. As we view the matter, its tender could only be for the purpose of supporting the credibility of the witness or of creating the impression with the jury that the State was suppressing evidence. It would not be admissible for either purpose. By calling Cowley to testify respondents make him their witness, and once his competency as an expert is established, they have no right to shore up his credibility until he is impeached or his credibility is attacked. [Citations omitted.] And a decision not to call as a witness one employed to investigate and evaluate facts and report an expert opinion is not a suppression of evidence.”

In addition to the legal reasoning, such holding is, in our opinion, supported by the soundest of practical reasons. We can perceive no real harm in the exclusion of such evidence, but foresee a great deal of mischief and harm in allowing such evidence to be introduced. Such practice could easily give rise to a class of “expert” value witnesses who intentionally give their initial employer false appraisals in hopes of being rejected by that employer and hired by the other side at a higher figure. To see the feasibility of such procedure and the desirability of such a witness, all that needs to be done is to look at the actual results of admitting such evidence in this case, and in Baltimore v. Zell, supra. (In Biggers, supra, the proof was not allowed to be introduced.) In each case the jury returned a verdict to the penny of the figure testified to by the expert who had initially been hired by the other side to the controversy. The jury in each case evidently ignored the testimony of all others feeling that the condemning authority was attempting to “pull a fast one”. The admission of such evidence could easily result in such mischief so as to promote a situation whereby, in reality, the least “expert” witness would become the most expert in the eyes of the jury.

We do not in any way intend to cast aspersions upon the character or expertise of the witness Palmer in this case. The record reflects that Mr. Palmer is a well-recognized expert in his field in his community and the record further reflects that he often does appraisal work for owners and condemning authorities. It just so happens that this is one case in which his appraisal for the condemning authority was not used by the authority and for the first time, insofar as we know, his initial employment in the matter was sought to be shown by counsel to a jury.

For the reasons stated we hold the Trial Judge erred in permitting such evidence to go to the jury. It is obvious that the error affected the verdict and we must therefore reverse and remand for a new trial.

Done at Jackson in the two hundred and second year of our Independence and in the one hundred and eighty-third year of our Statehood.

Costs of appeal are adjudged against the appellee.

MATHERNE and SUMMERS, JJ., concur.


author: MATHERNE, Judge.

text:
    Juliett WADDELL and Dorothy Waddell, Plaintiffs-Appellants, v. Fred L. DAVIS, Individually and d. b. a. Fred L. Davis Insurance Agency, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    July 24, 1978.
    Certiorari Denied by Supreme Court Oct. 10, 1978.

      Richard Glassman, Memphis, for plaintiffs-appellants.
    Leo Bearman, Memphis, for defendants-appellees.
   MATHERNE, Judge.

This lawsuit presents two basic issues for determination: (1) the proper application of the fourth paragraph of T.C.A. § 27-305, which permits a trial judge to direct entry of a final judgment in favor of one or more but fewer than all parties; and (2) whether a passenger in a motor vehicle which was not covered by uninsured motorists insurance because of the negligence of the insurance agent can sue the agent directly for damages sustained when the motor vehicle in which she was riding was struck by an unknown hit-and-run driver. The trial judge sustained the agent’s motion to dismiss, and the plaintiff appeals.

I.

Jacqueline E. Knight, the owner of a 1975 model Oldsmobile Cutlass automobile, applied to Fred L. Davis d. b. a. Fred L. Davis Insurance Agency for liability and uninsured motorist coverage in the amounts of $10,000 for each person and $20,000 for each accident. Knight paid a $119.00 premium for coverage from August 2 until November 2, 1975, and paid an additional $119.00 premium for the coverage to be extended to February 2, 1976. All contacts for insurance were made to the Davis agency and all premiums were paid to it. The policy was to have been issued by Cotton Belt Insurance Company, Inc.

On or about January 27, 1976, while a passenger in the Oldsmobile owned by Knight, the plaintiff Juliet Waddell was injured when an unknown driver of a hit- and-run vehicle struck the vehicle in which she was riding causing it to veer out of control and strike a lamp post. The plaintiff, on direction of Knight, contacted the Davis agency and was told that no policy of insurance had been issued to Knight covering the Oldsmobile.

The plaintiff sued Fred Davis, individually and d. b. a. Fred Davis Insurance Agency, alleging that: (1) Davis was negligent in his failure to obtain the uninsured motorist coverage on the Knight vehicle as agreed; and (2) that the plaintiff is a third-party beneficiary to the contract between Knight and Davis. The plaintiff also sued Cotton Belt Insurance Company, Inc. and the owner of the Oldsmobile, Jacqueline E. Knight. Dorothy Waddell, the mother of Juliet Waddell, joined in as party plaintiff to recover for medical expenses she paid on behalf of her daughter.

Davis filed a motion to dismiss upon the following grounds:

1. The Complaint on its face fails to state a claim upon which relief can be granted.
2. There is no privity between the plaintiffs and this defendant and, therefore, the plaintiffs have no cause of action against this defendant.

The trial judge in a memorandum opinion dismissed the lawsuit against Davis. The trial judge also held that Dorothy Waddell, the mother of the injured plaintiff, could not sue for medical expenses she paid on behalf of her daughter because the attorney for the plaintiff stated in open court that the daughter was sui juris.

II.

The trial judge, following the fourth paragraph of T.C.A. § 27-305, expressly ruled that the judgment of dismissal as to Davis was final and directed its entry as he found no just reason for delay in entering judgment. Under T.C.A. § 27-305, that ruling rendered the judgment final. Had the trial judge not so ruled, he could have revised the judgment at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. T.C.A. § 27-305.

The trial judge went further and certified certain controlling questions of law as to which he found substantial ground for difference of opinion, stated that he was of the opinion that an immediate appeal from the judgment may materially advance the ultimate determination of the litigation and allowed a discretionary appeal under the third paragraph of T.C.A. § 27-305.

We would like to attempt a clarification of the procedure under the third paragraph of T.C.A. § 27-305, as distinguished from the procedure under the fourth paragraph of that section.

The third paragraph of section 27-305 deals with appeals from interlocutory orders. When an appeal is granted under that paragraph on the ground of controlling questions of law, it has been held that the trial judge must specifically certify the controlling questions of law. Tenn. Dept. of Mental Health, Etc. v. Hughes (Tenn.1975), 531 S.W.2d 299; Frayser Assembly Christian School v. Putnam (Tenn. 1977), 552 S.W.2d 746. The trial judge must also certify that there is substantial ground for difference of opinion on those questions of law and he is of the opinion that an immediate appeal from the order may materially advance the ultimate termination of the litigation. With that certification, the trial judge may grant an appeal from an interlocutory order which he entered in the cause. The appellate court may in its discretion accept or reject the appeal. T.C.A. § 27-305.

When the legislature added the fourth paragraph to section 27-305, it put the litigants in a different “ball park” because that paragraph does not deal in any way with an appeal from an order of any kind, be it interlocutory or final. The word “appeal” is not to be found in the fourth paragraph. Yet, the paragraph was added to a statute formerly titled “Discretionary appeal before final decision.” This confusion apparently arose by reason of the fact that the Tennessee Rules of Civil Procedure omitted, or marked “reserved,” Rule 54.02 under the title “Judgments — Costs.” In 1975 the Supreme Court of Tennessee recommended to the legislature several amendments to the Rules, one of which was the inclusion of a proposed Rule 54.02. The legislature did not adopt the proposed amendments, but it did enact proposed Rule 54.02 as the fourth paragraph of T.C.A. § 27-305.

The fourth paragraph of T.C.A. § 27-305 sets out the manner by which an order as to one or more but fewer than all the parties may be made a final order as to those parties. Where an order is made final under the fourth paragraph, it is not necessary nor proper for the trial judge to certify controlling questions of law under the third paragraph of the statute. Such appeal is not a discretionary appeal from an interlocutory order; it is an appeal from a final judgment as to those parties.

When the trial court refuses or fails to render the order final under the fourth paragraph, a question arises as to whether an appeal will lie. The order is interlocutory in the sense that the trial judge can change the order at any time prior to his adjudging the claims, rights and liabilities of all the parties. In Loyd v. State Farm Mutual Automobile Ins. Co. (Tenn.1975), 521 S.W.2d 556, the Court refused to accept an appeal because the trial judge had failed to expressly render final a judgment as to one or more but fewer than all the parties. The Court on order of remand stated:

The trial judge, in his discretion, may certify the determination and direction required by T.C.A. § 27-305, as amended, under the fourth paragraph thereof, or he may certify the importance of the question presented under the third paragraph thereof or, of course, he is free to withhold the entry of any judgment until a final disposition of the case. (Emphasis added)

The Supreme Court has, therefore, held that where the judgment as to one or more but fewer than all the parties is not rendered final under the fourth paragraph, the appeal may be pursued under the third paragraph. We will, of course, follow that ruling. We do note, however, that this Court will be very reluctant to accept an appeal under the third paragraph from an order determining the claims of one or more but fewer than all the parties where that order is not made final. It would be rather futile for this Court to determine the questions certified when the trial judge can change his mind and rescind the order at any time prior to a settlement of the claims, rights and liabilities of all the parties.

We will, therefore, not consider the controlling questions of law as submitted by the trial judge, but we will review the record as on appeal from a final judgment.

III.

It must be here noted that the plaintiffs’ lawsuit is not based upon a contract of insurance; no policy was issued. The plaintiffs sue the agent Davis for damages based upon his negligent failure to have the policy issued. Plaintiffs sue Cotton Belt Insurance Company under the theory of respon-deat superior, seeking damages as a result of the negligent failure to act on the part of Cotton Belt’s agent, Davis.

The trial judge erred in basing his decision upon the cases of McCall v. Maryland Casualty Company (Tenn.1974), 516 S.W.2d 353 and Glover v. Tenn. Farmers Mutual Ins. Co. (1971), 225 Tenn. 306, 468 S.W.2d 727. The court in both of these cases held that the lawsuit by the insured based upon uninsured motorist coverage must be brought pursuant to T.C.A. § 56-1153 and a direct suit against the insurer was not allowed. Both lawsuits dealt with situations where a policy containing uninsured motorist coverage was, in fact, issued. In the case at bar, the policy was never issued and this fact is sufficient to except the present ease from the rule pronounced in McCall and Glover, supra.

The plaintiffs argue that they are third-party beneficiaries to the contract between the owner of the vehicle and Davis whereby Davis was to obtain uninsured motorist coverage for the owner. Third-party beneficiary contracts are recognized and enforced in Tennessee at the suit of the third-party beneficiary. National Surety Corp. v. Fischer Steel Corp. (1964), 213 Tenn. 396, 374 S.W.2d 372. Further, we hold that where a promise is made to benefit a third-party on the happening of a contingency, the third-party may sue on the contract upon the occurrence of the contingency. Compare Johnson v. Holmes Tuttle Lincoln-Mercury (1958), 160 Cal.App.2d 290, 325 P.2d 193.

This cause is presently being considered only upon the motion to dismiss which was filed by Davis. On motion to dismiss we take the averments of the complaint as true, therefore for the purposes of the motion we find that a contract did exist between the owner of the vehicle and Davis whereby the latter was to obtain a contract of uninsured motorist coverage for the owner, and the defendant Davis negligently breached that contract. The issue is whether the plaintiff, an injured passenger in the owner’s automobile, can establish that she is a third-party beneficiary to the contract between the owner and Davis.

The test is whether the plaintiff-passenger would have been an “insured” under the policy had it been issued as contracted for. In 12 Couch on Insurance 2d, § 45:645 (2d Ed. 1964); it is stated that the term “insured” under an uninsured motorist endorsement includes the named insured, his spouse, relatives living in the same household, operators with permission and occupants of the insured vehicle. The policy that should have been issued is not before the Court. We can not say on motion to dismiss whether the plaintiff-passenger would have been an insured under the policy contracted for, had it been issued. A fact question is presented which requires proof.

We hold that if the plaintiff-passenger establishes that she would have been an insured under the policy contracted for, she can maintain this action as a third-party beneficiary to the contract to obtain the insurance. If she would have been an insured under the policy contracted for, she would not be merely incidentally benefited by the contract to obtain the coverage because the contract to procure the coverage was made for the direct and immediate benefit of any person within the designation of an “insured” under the policy contracted for.

We hold that the plaintiff-passenger is entitled to bring this lawsuit and that the trial court erred in sustaining Davis’ motion to dismiss.

The trial judge dismissed the suit of Dorothy Waddell, the mother of the plaintiff Juliet Waddell, for medical bills she paid for her daughter. The trial judge took this action on his finding that Juliet Waddell was sui juris. The daughter might be of full legal capacity but facts may exist which would entitle the mother to recover for necessities furnished to the daughter. Compare Sayne v. Sayne (1955), 39 Tenn. App. 422, 284 S.W.2d 309. We feel that this matter should be factually explored before dismissing the suit of the mother.

The judgment of the trial court is reversed. This lawsuit is remanded to the trial court for such further proceedings as the law requires. The cost in this Court is adjudged against the defendant Fred L. Davis individually and d. b. a. Fred L. Davis Insurance Agency for which cost execution may issue, if necessary.

NEARN and SUMMERS, JJ., concur.