text:
    Nancy Holland WOODS, Appellant, v. Frank WARREN, d/b/a Warren House Apartments and United States Fidelity and Guaranty Company, Appellees.
    Supreme Court of Tennessee.
    March 28, 1977.

      Joe P. Binkley, Jr., Nashville, for appellant.
    Lawrence E. Levine, Gary A. Brewer, Nashville, for appellees.
   OPINION

HENRY, Justice.

The sole question presented in this Workmen’s Compensation action is the correctness of the action of the trial judge in denying benefits pursuant to his finding that appellant was not injured while acting within the course and scope of her employment.

Claimant was employed as a maid in the Warren House Apartments where she also resided. Her normal modus operandi was that she would walk from her apartment to the manager’s office or apartment, “clock-in’’, and pick up a master key, her cleaning supplies, and a list of apartments to be cleaned. Her apartment was at the opposite end of the complex from the manager’s office and apartment, which were located adjacent to each other. Normally she walked to her work, but, on occasions, she drove her automobile. No particular route was prescribed.

On the day of the accident she drove her automobile to work because it had been snowing and snow and ice covered the sidewalks. She parked near the office, in a space of her own selection, where she was permitted, but not required, to park. She emerged from her automobile, took a few steps along the icy sidewalk and fell, severely injuring her knee. All this occurred at approximately 8:00 o’clock, a.m. The sidewalk is owned by, and located upon, the premises of the apartment complex. The basic facts are not in dispute.

The only issue on this appeal is the correct principle of law to be applied to these established facts. An adherence to established and controlling Tennessee case law demands that we support the conclusion reached by the Chancellor.

A compensable injury must arise out of and occur in the course of employment. Sec. 50-902(d), T.C.A. The general rule is that an injury sustained en route to or from work is not compensable. Little v. Johnson City Foundry & Mach. Co., 158 Tenn. 102, 11 S.W.2d 690 (1928). Phrasing it another way, generally speaking, an employee is not in a compensable status until he shall have reached his duty station or place of employment. Travelers Indem. Co. v. Charvis, 221 Tenn. 593, 428 S.W.2d 797 (1968). There are notable exceptions to these rules. For example, the “required route” rule coupled with special or inherent hazards, as set forth in Charvis and those cases where the journey itself is a substantial part of the employment undertaking. Douglas v. Lewis Brothers Bakeries, Inc., 477 S.W.2d 202 (Tenn.1972).

The controlling principles of law have gradually emerged and have been clarified in a series of opinions beginning in the early days of the Workmen’s Compensation Act.

In Washington County v. Evans, 156 Tenn. 197, 299 S.W. 780 (1927), this Court in allowing a recovery to a rock quarry employee en route home after the completion of his day’s work, quoted, with approval, the following language from Corpus Juris:

As a general rule accidents which happen to an employee on his way to and from work are not regarded as in the course of his employment, except while he is at or so near the place of employment as reasonably to be regarded as in effect at the place; or where, if not on the employer’s premises, he is at or near the place of work and on a road or other way intended by the contract of employment as being the means of access to the work. (Emphasis supplied). 156 Tenn. at 199-200, 299 S.W. at 781.

Thus, this Court in 1928 adopted, or at least followed, the “so near” or “so close” doctrine.

In Little v. Johnson City Foundry & Mach. Co., 158 Tenn. 102, 11 S.W.2d 690 (1928), the Court declined to extend coverage to an employee who was injured on a public street while en route to work. The Court’s action was predicated on the general rule of non-liability in such cases coupled with the fact that the claimant had not reached his employer’s premises and voluntarily chose his route of travel. The Court distinguishes Washington County v. Evans, supra.

Specifically, the Court said:

If the place at which the injury occurred is brought within the contract of employment by the requirement of its use by the employee, so that he has no discretion or choice as to his mode or manner of coming to work, such place and its use seem logically to become elements or factors in the employment, and the injury thus arises out of the employment and is incurred in the course thereof. But, on the contrary, if the employee, at the time of the injury, has gone beyond the premises of the employer, or has not reached them, and has chosen his own place or mode of travel, the injury does not arise out of his employment, nor is it within the scope thereof. 158 Tenn. at 106-7, 11 S.W.2d at 692.

The Court, in Central Sur. & Ins. Corp. v. Court, 162 Tenn. 477, 36 S.W.2d 907 (1931) recognized an exception to the general rule in cases where “risks of travel are directly incident to the employment itself.” 162 Tenn. at 480, 36 S.W.2d at 908.

In Free v. Ind. Ins. Co. of N.A., 177 Tenn. 287, 145 S.W.2d 1026 (1941), the Court again recognized the “so near” exception to the general rule, but denied benefits to an automobile salesman who slipped on an icy sidewalk en route to his parked automobile near his employer’s place of business. It was claimant’s intention to go to a grocery store to purchase groceries for his own use and then to visit a prospective purchaser. The Court held that there was a “break” in the course of his employment and that the injury was sustained during that break. Hence, he was not injured during the course or scope of his employment.

In Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771 (1951), the factual situation was that the employee, while en route to work, slipped and fell on an icy public sidewalk only a few feet from his employer’s doorway. In holding that the accident did not arise out of and in the course of the employment, the Court, without reference to Washington County v. Evans, supra, and Free v. Ind. Ins. Co. of N.A., supra, specifically rejected the “so close” rule.

In pertinent part the Court then held:

if a process of going to and from is furnished by the employer, or is required by the employer to be done in a certain manner or over a certain way, and this submits the employee to a definite special hazard, then in such event such accidents are compensable, the employee is not to be considered in the course of his employment until he has actually arrived at his place of employment ready to begin his activities in the employer’s work unless those qualifications last above said are applicable. (Emphasis supplied). 192 Tenn. at 680, 241 S.W.2d at 775.

Subsequent cases have accepted this as a correct current statement of the law in this jurisdiction. This rule, however, does not precisely fit a situation where the employee is already on the premises of the employer but has not reached his particular post of duty.

The landmark case of Bennett v. Vanderbilt University, 198 Tenn. 1, 277 S.W.2d 386 (1955), partially answers this question. There the employee was injured when she tripped and fell in a parking lot maintained by her employer for the use and convenience of its employees. The employee was permitted, but not required, to use the parking lot. Recovery was denied.

After noting that “the mere fact that the employee is on the premises or property owned by the employer at the time the employee is injured, is not determinative”, the Court defined “premises” as being

the part of the property where the employee is to do his work, including that part which he is required to use for ingress and egress. (Emphasis supplied). 198 Tenn. at 7, 277 S.W.2d at 388.

In the instant case claimant also had other parking lots she could have used and, therefore, several other routes she might have taken. She chose her own parking place and selected her own route.

In McKinney v. Hardwick Clothes, 217 Tenn. 457, 398 S.W.2d 265 (1965), the claimant was injured when she slipped and fell in a parking lot owned by the employer and operated for the benefit of its employees. The Court denied coverage. The factual situation, as presented by the late Chancellor Glenn W. Woodlee, whose opinion the Court adopted, was as follows:

The question therefore, is whether or not an employee is entitled to compensation for injury on the premises of the employer before she had started her day’s work and while she was walking to that part of the premises where she is required to be for her work, following a route which she chose, but was not required to take, in going from her automobile which was parked on premises of the employer where she was permitted, but not required, to park and when the use of the automobile was for her own convenience. 217 Tenn. at 463, 398 S.W.2d at 267.

This case is closely analogous to the case at bar. The Court held that the injury did not arise out of and in the course of the employment.

This whole area of the compensation law was further clarified in Travelers Indemnity Co. v. Charvis, 221 Tenn. 593, 428 S.W.2d 797 (1968). There the petitioner was injured while en route to work, in a hallway adjacent to the cafeteria in which she was employed. The Court, relying upon Camel Mfg. Co. and Bennett, supra, held, in effect that the use of a required route is not sufficient, but the “usage of the route must also subject the employee to a special or inherent hazard of that route.” 221 Tenn. at 599, 428 S.W.2d at 800.

Charvis all but seals the doom of the claimant in this case. She simply does not meet the dual standard announced in this ease. And under this case, as well as Bennett, supra, the fact that she was on the premises owned by the employer at the time of the injury is not determinative.

This Court, as presently constituted, in Tri-City Towel & Linen Service v. Cope, 529 S.W.2d 51 (Tenn.1975), reversed an award to an employee who fell in a public alley while returning to work after lunch, holding that the injury occurred while she was performing no service for her employer.

Lastly, in Aluminum Company of America v. Baker, 542 S.W.2d 819 (Tenn.1976), the employee was injured when he stepped in a hole in a company owned and maintained parking lot.

At the threshold of our consideration, we said:

Adopting a more strict approach to an employer’s liability than the vast majority of courts, this court consistently has limited recovery of workmen’s compensation benefits for injuries sustained by an employee while on his way to or from his work station to factual situations showing (1) the process of going to or from work is furnished by the employer or is required by the employer to be done in a certain manner or over a certain way, and (2) this submits the employee to a definite special hazard. (Emphasis supplied). (citing McKinney, Bennett and Camel Mfg. Co., supra). 542 S.W.2d at 820.

The questions, as posed by the Court in Aluminum Company of America, are precisely the same as presented in the instant case: (1) Was the route used one required by the employer and (2) if so, did it subject the employee to a definite special hazard. We recognized in Aluminum Company of America that the “premises” included “the part of appellant’s property which the ap-pellee is required to use for ingress and egress.” 542 S.W.2d at 821.

We held the parking lot to be a part of the premises which employees are required to use for ingress and egress and that the use of the required route subjected the employee “to a special hazard known to ALCOA, the very hazard that caused appellee’s fall.” 542 S.W.2d at 821.

Harmonizing these authorities the rule emerges that in order to avoid the application of the general rule of nonliability for an injury sustained en route to or from work, the employee must show that:

a.at the time of the injury he was using a route required or furnished by the employer; Charvis, supra, and such route was on the premises of the employer, Little, Camel Mfg. Co., Aluminum Co. of North America, supra, and
b. the use of the required route subjects the employee to a definite special hazard. Camel Mfg. Co., Charvis, Aluminum Co. of North America, supra, or
c. that the risks of travel are directly incident to the employment itself. Central Sur. & Ins. Corp., Douglas, supra.

All of this is qualified by the fact that the “premises” are that part of the property where the employee actually works or which he is required to use for ingress and egress. Bennett, and McKinney, supra.

When we apply these rules to the instant case wherein the employee was unquestionably on the premises of her employer, we must reluctantly hold that there was no coverage under the act. She was not pursuing a required route, but was on a way of her own selection.

Assuming arguendo that the employee was, in effect, on a required route, coverage would not attach in view of the fact that her injury was not attributable to a definite special hazard. It is to be borne in mind that the phrase “rising out of employment” refers to “the origin of the injury”, while “in the course of employment” refers to “time, place and circumstances” of the injury. Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765 (1966).

It takes a combination of these criteria to establish coverage under the act. Sec. 50-902, T.C.A. Therefore, the fact that the injury arises in the course of employment, standing alone, is insufficient. It must also rise out of the employment.

The oft-cited case of Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270 S.W.2d 389 (1954) makes it clear that an injury “purely coincidental, or contemporaneous, or collateral, with the employment”, does not arise out of the employment unless “the causative danger [is] peculiar to the work and not common to the neighborhood.” 197 Tenn. at 137, 270 S.W.2d at 390.

Further the Jackson Court held:

Acts of God are held compensable when the employee, by reason of his employment, is subjected to a hazard from some act of God not common to the general public, but peculiar to the nature of the employment and to the conditions under which that employment is required to be performed. 197 Tenn. at 141, 270 S.W.2d at 392.

The rule, as phrased in Knox, supra, and quoted with approval in Hill v. St. Paul Fire and Marine Insurance Co., 512 S.W.2d 560 (Tenn.1974) is as follows:

Injury or death of an employee from an exposure which is no more or different of [sic] any other member of the public similarly situated in place and time is not compensable. 512 S.W.2d at 563.

See also, 82 Am.Jur.2d, Workmen’s Compensation, See. 327.

We cannot in good conscience hold that general snowy and icy conditions were definite special hazards of employment in this case. We must hold that these conditions were common to the general public and not peculiar to the nature of the employment or to the conditions under which that employment was required to be performed.

The judgment of the trial judge is

Affirmed.

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

       Residence within the apartment complex was not a condition of employment.


source: Caselaw Access Project

author: COOPER, Chief Justice.

license: Public Domain

text:
    Perry A. CHAPDELAINE, Appellant, v. Henry W. HAILE, II, Appellee.
    Supreme Court of Tennessee.
    March 28, 1977.

      Perry A. Chapdelaine in pro per.
    John E Buffaloe> jr>> Nashville, for ap-penee
   OPINION

COOPER, Chief Justice.

This is an appeal from an order entered in the Circuit Court of Davidson County dismissing a petition filed by Perry Chapde-laine in an effort to have the court discipline Henry W. Haile, II, an attorney licensed to practice law in Tennessee.

Mr. Chapdelaine filed a Petition for Disbarment or Disciplinary Action levelling numerous charges of professional misconduct against Henry W. Haile, an attorney, and asked the court:

“1. On the Jury finding Defendant guilty, on one or more points as charged, herein and in other cases as the Court directs its inquiry, that the Defendant be recommended for summary disbarment and/or disciplined according to the measure of the Court’s findings. Defendant to be suspended during the interim.
“2. That the Court direct the Defendant to make such other restitution and recompense as necessary, feasible, and appropriate, according to the Jury’s inquiry and the Court’s findings.”

Mr. Chapdelaine did not have professional assistance in writing the petition; consequently, it is an unusual amalgam of allegations, evidence, argument, conclusions, legal principles and citations to legal authorities, and references. The net effect of the amalgam is to make a simple issue complicated. If such a petition had been filed by one learned in the law, undoubtedly it would have been summarily dismissed, or so much of the petition would have been stricken that it would have been necessary for Mr. Chapdelaine to begin the action anew.

Shortly after the petition was filed, it was brought to the trial judge’s attention by way of a motion, that Mr. Chapdelaine had filed a complaint against Mr. Haile with the Nashville Bar Association and that the Association then was investigating the charges. On August 5, 1975, an order was entered in the circuit court continuing the case indefinitely. Cf. 29-309.

In January, 1976, Mr. Chapdelaine filed a motion asking the circuit court to take the case off the indefinite docket in view of the fact that the Nashville Bar Association had not filed a report showing the results of its investigation of the charges against Mr. Haile. The trial judge granted the motion and, at the same time, appointed counsel to assist Mr. Chapdelaine. (Shortly thereafter, the Nashville Bar Association reported that it “found no merit to the disbarment proceeding filed in this case against Henry Haile.”)

In March, 1976, counsel was permitted to withdraw as counsel of record for Mr. Chapdelaine on the strength of his representation, by motion, that he had discussed with Mr. Chapdelaine at length the merits of the case and had failed to reach a satisfactory agreement with him and that Mr. Chapdelaine had expressed his preference for other counsel.

The trial judge then recused himself, and the Honorable John H. Henderson was designated to hear the complaint of Mr. Chap-delaine to its conclusion.

On hearing the complaint on representations of Mr. Chapdelaine and counsel for Mr. Haile and the entire record, Judge Henderson concluded:

“1. That the proceedings herein were stayed pending an investigation of the Defendant’s conduct by the Nashville Bar Association but that prior to the date of that report in February, 1976, the Plaintiff moved for, and was granted, permission to recall said investigation from the Nashville Bar Association and no other investigation has been conducted; therefore, the case stands as filed before that investigation was ever started.

“2. That counsel should not be appointed for the Plaintiff, his having refused the services of a highly reputable member of the Nashville Bar.

“3. That the general allegations filed under the protection of the pauper’s oath are not sufficient to justify any suspension of the Defendant.

“4. That any further investigation of this matter should proceed in accordance with Rule 42, Rules of the Supreme Court of Tennessee.

“5. That the present case being strictly a private charge, the Motion to Dismiss heretofore filed by the Defendant should be granted.

“6. That the Plaintiff’s deman ⅛ for a jury and personal restitution be stricken and that the allegations of the petition alleging acts in which the Plaintiff is not the ‘individually aggrieved party’ should be stricken.”

Appellant appealed, taking issue with the trial judge’s finding that (1) further investigation of this matter should proceed in accordance with Rule 42 of the Supreme Court; (2) that the present case being strictly a private charge, Motion to Dismiss by defendant should be granted; (3) that the plaintiff’s demand for a jury and personal restitution be stricken and that the allegations of the petition alleging acts in which the plaintiff is not the “individually aggrieved party” should be stricken; and (4) that counsel should not be appointed for the plaintiff.

It is conceded by all parties that Supreme Court Rule 42 is not intended to supplant T.C.A. § 29-309 (Disciplinary Proceedings) but intended to provide an additional, orderly, and, we think, more efficient method of investigating complaints against attorneys and imposing sanctions on those attorneys found to be guilty of unethical practices. Under Rule 42, the person making the complaint against an attorney admitted to the Bar of Tennessee is not faced with the onerous task of drawing an adequate complaint, nor in monitoring the progress of the case through the court system as he is under T.C.A. § 29-309. To the contrary, Rule 42 places at the complaining party’s disposal trained investigators and counsel, competent to investigate and prosecute the charges against the attorney. But despite the obvious advantages to prosecuting a complaint against an attorney under Rule 42, the individual aggrieved has the option of proceeding under T.C.A. § 29-309.

We also agree with appellant that there is no basis for characterizing the charges in this case as strictly private charges and to dismiss the complaint on that basis. If, as suggested in the briefs, the complaint is a “private charge” since it was not investigated by commissioners appointed under the Supreme Court rules or the state or the local bar association, the lack of such an investigation should not be charged to appellant since the duty to order the investigation rests on the trial judge. See T.C.A. § 29-309.

In taking umbrage with the trial judge’s order that appellant’s demand for a jury and personal restitution be stricken, appellant does so on the basis that he had conceded that “there is no demand for jury or personal restitution in a monetary sense” and that findings on the issue are “moot and irrelevant.” Under these circumstances, it was not error for the trial judge to order the pleadings be made to conform with the concession of appellant.

Appellant also contends that the finding by the trial judge -that “counsel should not be appointed for appellant, his having refused the services of a highly reputable member of the Nashville Bar” was evidence of distortion and bias and that, in any event, the issue “is moot, irrelevant, and immaterial.” We see no basic bias in the court’s finding on the issue, nor can there be error in view of appellant’s concession that the issue is moot, irrelevant, and immaterial.

We have commented on these assignments of error relied on by appellant, though none of them are material to the disposition of this case on appeal. We note that, in addition to the findings complained of, the trial judge found that the general allegations in the complaint “are not sufficient to justify any suspension of the Defendant,” which is the lesser of the punishments sought by appellant against Mr. Haile. In the face of this finding, which is not contested in this court, we have no alternative but to affirm the order of the trial judge dismissing the complaint.

We note also that appellant complains in his brief that his “experience in applying T.C.A. § 29-309 has been one of frustration through judicial neglect of legislative intent, disenchantment with self-serving maneuvers of the Nashville Bar Association, and dismay at the general tone of the memorandum written by the lower court, which seems to attack simply the form of [appellant’s] complaint while ignoring not only substance, but the possibility of substance.”

We think it apparent from the technical record and from the briefs filed by appellant that much, if not all, of appellant’s frustration, disenchantment, and dismay must be attributed to his lack of legal training and to the fact that he elected to proceed under T.C.A. § 29-309 rather than Rule 42 of the Supreme Court, where investigators and counsel would be available to aid him in prosecuting his complaint against Mr. Haile. Having chosen to proceed under T.C.A. § 29-309, appellant is required to file a complaint, in reasonable compliance with the rules of pleading, which contains allegations that support the relief sought. This requirement is more than form.

The order dismissing the complaint is affirmed.

FONES, HENRY, BROCK and HARBI-SON, JJ., concur.

      . T.C.A. § 29-309 provides, among other things, for the appointment of a special master to conduct an investigation in those cases where charges are preferred by an individual and there has not been a preliminary investigation of the charges by either the state or local bar association or by commissioner appointed under the supreme court rules.


author: HENRY, Justice.

text:
    Ruth Elizabeth BROWN, Petitioner, v. Billy Wayne BROWN, Respondent.
    Supreme Court of Tennessee.
    March 28, 1977.
    Thomas D. Steele, Nashville, for petitioner.
    James C. Vance, Nashville, for respondent.
   OPINION

HENRY, Justice.

The sole question before the Court is the authority of a trial judge, pursuant to Rule 60.02, Tenn.R.Civ.P., to amend a final decree after the expiration of thirty days from the entry thereof. The trial judge allowed a motion that alleged an omission of an item of property from the final decree in this divorce action as a result of mistake, inadvertence, surprise, excusable neglect, and fraud.

The Court of Appeals found:

. the record clearly reflects that the [respondent] deliberately set out to mislead and deceive the [petitioner] by promising shortly after the divorce decree was entered that he would transfer the title to the automobile to her. He first promised to sign the title over after the $2,800.00 provided for in the original decree was paid to him or to his mother by [petitioner], but after said amount was paid, he then postponed it on another lame excuse, all the time realizing that after the expiration of thirty days the decree of the Court would become final. After the expiration of said thirty days he then filed suit in the General Sessions Court to regain possession of the car. While it seems that the Special Judge was fully justified in his decision that Mrs. Brown was entitled to the automobile, nevertheless, we are of opinion that the original decree had become final and that Rule 60.02 should not be extended to cover a situation such as is revealed by this record, especially, where a plain and adequate remedy is available to the plaintiff by separate action to claim said automobile by reason of the agreement of the parties and the promises solemnly made by the [respondent], to transfer title to her, which promises he does not deny.

We respectfully disagree with the legal conclusion reached by the Court of Appeals. This is a classic case for the application of Rule 60.02, Tenn.R.Civ.P., which reads, m pertinent part, as follows:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party

This portion of the rule is enforceable by motion made within one year after judgment or by an independent action. The rule came under our scrutiny in Jerkins v. McKinney, 533 S.W.2d 275 (Tenn.1976), where we pointed out that it was designed to strike a proper balance between the competing principles of finality and justice. After recognizing the old 30-day rule on modification of judgments, we stated:

the rigidity of this rule was substantially relaxed by the adoption of Rule 60, Tenn.R.Civ.P., which facially provides relief against final judgments. To hold otherwise would cut the heart out of the rule and destroy all reason for its existence. (Emphasis supplied). 533 S.W.2d at 280.

Judge Drowota, in his dissenting opinion recognized these principles.

We find the fact that petitioner might have pursued other, or different, remedies to be of no consequence. She was entitled to the benefits of the expeditious relief afforded by Rule 60.02.

Reversed.

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


author: MATHERNE, Judge.

text:
    H. P. CLEMMER [and wife, Pauline Clemmer], Appellee, v. FARMERS-PEOPLES BANK, Appellant.
    Court of Appeals of Tennessee, Western Section.
    Aug. 16, 1976.
    Certiorari Denied by Supreme Court Jan. 17, 1977.

      John F. Kizer, Milan, for appellant.
    Lloyd S. Adams, Jr., Adams & Albright, Humboldt, for appellee.
   MATHERNE, Judge.

The issue before the trial court was the amount of money for which a guarantor was liable under a contract of continuing guaranty.

I.

This lawsuit originated by complaint of Dr. H. P. Clemmer and wife, Pauline M. Clemmer, seeking a mandatory injunction requiring the Farmers-Peoples Bank to deliver a life insurance policy and certain municipal bonds which it held as security. The bank filed a counterclaim demanding judgment against H. P. Clemmer for $87,529.43 due the bank by overdrafts and notes of Clemmer Building Supply and Hubert P. Clemmer, Jr., guaranteed by H. P. Clem-mer.

The trial judge held that the contract of guaranty was valid. He allowed the guarantor Clemmer a discretionary appeal on that issue, reserving the issue of the amount due under the guaranty. This Court held that the contract of guaranty was ambiguous and remanded for proof of the intent of the parties to the contract. On grant of certiorari, the Supreme Court of Tennessee held that the contract of guaranty was not ambiguous, declared the contract to be one of continuing guaranty and remanded to the trial court for a determination of the amount due under the guaranty. Farmers-Peoples Bank v. Clemmer (Tenn.1975) 519 S.W.2d 801.

On remand the trial court permitted an amendment to the counter complaint wherein the bank sought judgment against the guarantor H. P. Clemmer in the total amount of $134,706.54, plus a reasonable attorney’s fee.

The trial judge held that the guarantee bank was entitled to recover from the guarantor, H. P. Clemmer, the sum of $104,-080.84 for all the overdrafts and notes of the principal obligors, Hubert P. Clemmer, Jr. and Clemmer’s Building Supply, together with 6% interest on the overdrafts until January 28, 1971, interest in the contracted amounts provided on the notes until January 28, 1971, and 15% attorney’s fee on the notes only. The trial judge disallowed interest on the notes and overdrafts after January 28, 1971, because he held that the filing of the counterclaim by the guarantee bank on that date revoked the continuing guaranty.

The record further reveals that Hubert P. Clemmer, Jr. took bankruptcy. The bank as lienor took possession of the stock of goods and accounts receivable of Clemmer’s Building Supply. A public sale was held and the bank recovered the gross sum of $21,601.18 for the assets sold. Thereupon, the federal government asserted a claim to that fund based upon certain claimed obligations of Hubert P. Clemmer and/or Clemmer’s Building Supply. The fund was then, by agreement between the bank and the government, placed in escrow with John F. Kizer pending the determination of the priorities of the parties. The bank thereupon filed a lawsuit in federal court which ultimately resulted in a judgment awarding $1,300 of the fund to the federal government and the balance of $20,301.18 to the bank. The escrow agent, who was also the attorney for the bank in the federal litigation, withheld attorney’s fee, expenses of litigation and an item for rent in the total amount of $5,684.18, paying to the bank the net amount of $14,617.00 to be credited against the guaranteed obligations of Clem-mer’s Building Supply. The trial judge allowed a credit against the guaranteed obligations in the amount of $19,308.30. That figure represents the difference between the $20,301.18 recovered in the federal court and the sum of $992.88 which the trial judge found as expended by the bank for rent, insurance, advertising and utilities. The trial judge did not allow the guarantee bank its attorney’s fee and litigation expense out of the $20,301.18 recovered in the federal court.

The bank appeals to this Court and raises two issues: (1) the trial judge erred in disallowing interest after January 28, 1971 on the ground that the filing of the counter complaint revoked the continuing guaranty; and (2) the trial judge erred in failing to deduct the attorney’s fee and litigation expense from the credit allowed the obligor out of the fund realized from the federal court litigation.

The guarantor does not appeal, and the above issues are the only questions before this Court.

II.

Generally, absent provisions in the contract to the contrary, a guarantor may revoke a continuing guaranty for which the consideration for the guaranteed obligation has not passed; but the guarantor cannot thereby escape liability for obligations which have been incurred on the strength of the guaranty before the notice of revocation. 38 C.J.S. Guaranty § 36, pp. 1174-1175.

It appears from the record that all obligations allowed against the guarantor were incurred by the principal obligor prior to the filing of the counterclaim. The guarantor does not question that fact.

We hold, therefore, that under this continuing guaranty, regardless of revocation or the lack of same by the filing of the counter complaint by the guarantee, the guarantee is entitled to interest from the guarantor from the time the principal obli-gor became bound under the guaranteed obligation to the date of payment or judgment. This holding is based upon the proposition that the liability of the guarantor under a continuing guaranty is measured by the liability of the principal obligor. Compare: Villines v. Parham-Lindsey Grocery Co. (1927), 6 Tenn.App. 254. The trial court erred in refusing to allow interest to the date of judgment.

For the same reason we hold that the guarantee bank is entitled to its attorney’s fee and litigation costs as a result of the lawsuit it brought in the federal court. That lawsuit inured to the benefit of the guarantor because the recovery there realized was credited against a guaranteed obligation. The lawsuit was properly instituted, and had the principal obligor brought the lawsuit it would have been liable for the attorney’s fee and the litigation expenses. We hold that, under the circumstances, the guarantee bank had the right to bring the lawsuit for the benefit of itself and the guarantor. We conclude that the trial judge erred in not allowing as a claim against the guarantor reasonable attorney’s fees and litigation expenses incurred in the federal court litigation.

It results that the judgment of the trial court is reversed and this lawsuit is remanded to the Law and Equity Court of Gibson County, Tennessee for a finding of interest due to the date of judgment and the amount of attorney’s fee and litigation expenses incurred in the federal litigation, and for a total judgment against the guarantor H. P. Clemmer which will include those amounts.

The cost in this court is adjudged against the original plaintiff Dr. H. P. Clemmer, for which execution may issue.

CARNEY, P. J., and NEARN, J., concur.


text:
    PERCY GALBREATH & SON, INC., Appellant, v. DEHYCO COMPANY, INC. and Albert F. Harris, Appellee.
    Court of Appeals of Tennessee, Western Section.
    Aug. 23, 1976.
    Certiorari Denied by Supreme Court March 14, 1977.
    James E. Harpster and Henry L. Klein, Rickey, Shankman, Blanchard, Agee & Harpster, Memphis, for appellant.
    John S. Richbourg, Owen & Lail, W. Frank Crawford and Robert V. Redding, Thomason, Crawford & Hendrix, Memphis, for appellee.
   MATHERNE, Judge.

The issue on appeal is whether, under the terms of two lease contracts and the proof in the record, the plaintiff agent is entitled to a commission on rentals to be paid under renewals of the original leases, which renewals were effected by the defendant lessor and not by the plaintiff agent.

I.

In 1969 the plaintiff, engaged in the business of acting as agent in the sale and leasing of commercial and industrial property, negotiated for the defendant-owner the two lease agreements now in controversy.

One lease to the Cawthon Steel Company, Inc. provides at paragraph 40 thereof as follows:

This lease was negotiated by Percy Gal-breath & Son, Inc., acting as Agent for the Lessor, and Lessor agrees to pay Percy Galbreath & Son, Inc., the usual commission (in accordance with the Schedule of Minimum Commissions recommended by the Memphis Board of Realtors) for services in negotiating this lease; also to pay Percy Galbreath & Son, Inc., the usual commission for any subsequent lease that may be entered into by the Lessor with the Lessee.

The other lease to Kiger & Jackson, Inc. has an identical provision designated as paragraph 38 thereof, except the wording enclosed by parenthesis reads as follows: “(in accordance with the rules of the Real Estate Board of Memphis).”

Both leases contain a provision that there are no other promises, agreements, conditions or understandings, either oral or written, between the parties other than as set out in the written lease.

The record establishes that the two leases expired in 1974 and the defendant entered into another lease agreement with each lessee. The new Kiger & Jackson, Inc. lease was entered into with Ralph L. Jackson, Inc., the successor corporation to Kiger & Jackson, Inc., on June 28, 1974 for a period of five years at a total rental of $76,500. The new Cawthon Steel Company, Inc. lease was entered into on the same date for a five year term, providing for a total rental of $76,500.

Under the original leases the plaintiff collected the rentals, retained a commission of 5% and forwarded the balance to the defendant lessor. The plaintiff claims it is entitled to 5% of the total rentals as reflected in the two new leases. The plaintiffs did not negotiate the new leases.

The plaintiff’s position is that it is entitled to the 5% commission under the paragraphs of the leases as heretofore quoted regardless of whether it negotiated the new leases. The plaintiff insists the commission is due based upon its service in negotiating the original leases.

The defendant claims the terms of the contract and the acts of the parties thereunder contemplate a negotiation of the new lease by the plaintiff as agent before any commission is due the plaintiff based upon the new lease.

There is no proof of a “Schedule of Minimum Commissions recommended by the Memphis Board of Realtors” as might have existed on the date of the new leases. There is no proof of what a “usual commission” might have been on that date.

II.

We hold that the lawsuit of E. O. Bailey & Co. v. Union Planters Title Guaranty Co. (1949) 33 Tenn.App. 439, 232 S.W.2d 309, controls this lawsuit on the issue of the plaintiff’s right to a commission based upon the new leases. In Bailey, the lease contained a provision identical to those here under consideration plus the following sentence:

The Lessor also agrees to pay to E. O. Bailey & Co., Inc. (the agent), the usual sales commission in the event the within leased premises are sold to Lessee herein.”

The leases under consideration in this lawsuit also have the above sentence as relate to sales to the lessees, in Bailey the owner-lessor sold the premises to the lessee; whereas, here the owner-lessor entered into new leases with the lessee. The Court in Bailey held that the agent was entitled to a commission on the sales price received by the lessor-owner.

On this point there is no ambiguity in the terms of the contract. If a subsequent lease is entered into between the lessor and lessee the plaintiff agent is entitled to a commission. The consideration to the defendant lessor is the service performed by the plaintiff agent in obtaining the original lease. It can be readily assumed that any lessee is a prospective tenant for a renewal of the lease under terms satisfactory to the parties. Bailey, supra.

In the absence of fraud or mistake, neither being present in this lawsuit, a contract must be enforced as it is written, even though containing terms which may be thought harsh and unjust. Bailey, supra.

It results that the trial judge erred in holding that under the facts and circumstances the parties intended that the plaintiff agent must have negotiated the new leases before it would be entitled to a commission based upon the rentals to be paid under the new leases.

III.

In order to prevail under its contracts, the plaintiff agent had only to prove three elements: (1) the terms of the contract as contained in the original leases; (2) the execution of the new leases and the rentals due thereunder, and (3) the commission due it. We hold that the plaintiff agent has failed to prove the third element necessary for a judgment.

There is no proof of what a “usual commission” was on the date of the original leases nor on the date of the new leases. There is no proof of a “Schedule of Minimum Commissions as recommended by the Memphis Board of Realtors.” The parties apparently agreed to a 5% commission under the original leases. The plaintiff in its brief makes the following statement as to its demand for a 5% commission:

What the contract calls for is the usual commission as defined by the Memphis Real Estate Board at that time. This could be 4%, it could be 5%, it could be 6%, or it could be any other percentage, depending upon the action of the Real Estate Board and the state of the economy. It happens that the Real Estate Board at that time prescribed 5% and it is for that which Appellant prays.

The plaintiff, therefore, admits that the contract allows a commission that may vary from time to time, and that the amount contemplated to be paid must be determined by proof adduced in conformance with the terms of the contract.

The defendant’s payment of a 5% commission for five years under the original leases and the testimony of the defendant’s official that he was satisfied with that arrangement do not constitute proof of commission due under the new leases.

The contracts require proof to establish the amount of the commission. The courts cannot assume, as did the plaintiff, that a particular percentage figure meets the requirements as set out for determining the commissions due. If the rate prescribed by the Real Estate Board was 5% as stated by the plaintiff, there is no proof of that fact in the record.

The plaintiff cannot prevail, having failed to prove the amount of commission to which it is entitled. The plaintiff’s lawsuit is dismissed. The cost in this Court is adjudged against the plaintiff-appellant.

CARNEY, P. J., and NEARN, J., concur.


author: SHRIVER, Judge.

text:
    SEAGRAM DISTILLERS COMPANY, a division of Joseph E. Seagram & Sons, Inc., Plaintiff-Appellee, v. Carl A. JONES et al., Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Sept. 3, 1976.
    Certiorari Denied by Supreme Court Feb. 7, 1977.

      Thomas Wardlaw Steele and Joel M. Lee-man, Gullett, Steele, Sanford, Robinson & Merritt, Nashville, for plaintiff-appellee.
    R. A. Ashley, Jr., Atty. Gen. of Tenn., William C. Koch, Jr., Asst. Atty. Gen. of Tenn., for appellant Tennessee Alcoholic Beverage Commission.
    Daniel W. Oehmig, Chattanooga, for defendant-appellant Southern Distributors Corp.
    Tyree B. Harris, Hooker, Keeble, Dodson & Harris, Nashville, for defendant-appellant Lipman Bros., Inc.
   OPINION

SHRIVER, Judge.

The Case

This is an appeal by the Tennessee Alcoholic Beverage Commission and other named defendants from the action of the Sixth Circuit Court of Davidson County, Tennessee, in granting a motion for summary judgment and entering an order holding that Rule No. 0100-8-13(7) of the Rules of the Tennessee Alcoholic Beverage Commission violates the due process clauses of the Federal and State Constitutions and, hence, is void.

The Pleadings and Proceedings Below

On March 7th, 1975, Seagram Distillers Company filed its “Original Complaint and Petition for Writ of Certiorari” in the Circuit Court of Davidson County, seeking a review of the decision of the Alcoholic Beverage Commission wherein the request of petitioner to transfer its distributorship of certain brands of vodka was denied. The petition also prayed for a declaratory judgment as to the rights of the parties.

Said complaint, in pertinent part, recites that on or about November 1,1974 petitioner requested permission of the respondent Commission to transfer its distributorship of Wolfschmidt Vodka from íipman Bros., Inc., in Nashville, Tennessee to the Tennessee Wine & Spirits Company in Nashville, and from Southern Distributors Corp., in Chattanooga, Tennessee, to Athens Distributing Company of Chattanooga.

It is averred that at its regular monthly meeting on January 10, 1975, held in Nashville, Tennessee, the Commission denied petitioner’s request for the above mentioned transfers of distributorships and it is alleged that said action was erroneous and illegal in that:

(a) It was arbitrary and not supported by material evidence.

(b) The laws of Tennessee do not confer on the Commission power to require its permission for the transfer of a distributorship by a manufacturer from one distributor to another and its rules and regulations which require its permission to make such transfer is an illegal effort to exercise legislative power.

(c) The denial of petitioner’s request violates petitioner’s rights under the Fifth and Fourteenth Amendments to the Federal Constitution and Article 1, Section 8, and Article 11, Section 8, of the Constitution of Tennessee, the same being an unconstitutional interference with the right of petitioner to contract freely.

Under these circumstances it is alleged that petitioner is entitled to have a Court declare its rights in the premises and to have a declaratory judgment to the effect that the action of the respondent Commission is void and, further, that petitioner is entitled to an injunction restraining the Commission from attempting to interfere with petitioner’s right to contract with such persons as it may choose.

On April 4, 1975 defendant, Lipman Bros., Inc. filed a motion to dismiss the petition for certiorari and a similar motion was filed by Southern Distributors Corporation.

On September 23, 1975, the Trial Judge held that the petition for certiorari should be dismissed. His Order states:

“The Court is of the opinion that the question raised by the complaint is properly before the Court in accordance with the prayer for a declaratory judgment. The writ of certiorari is unnecessary for consideration of all matters raised. The writ of certiorari is a discretionary writ and should not be issued unless necessary.
It is, therefore, ORDERED that the writ of certiorari is dismissed as improvidently granted. The cause is retained for consideration of a declaratory judgment.
It is further ORDERED that the record before the Commission be retained as evidence for the use of any party.”

The Tennessee Alcoholic Beverage Commission, hereinafter referred to as the Commission, filed its answer on October 22, 1975. Thereafter, Lipman Bros, and Southern Distributors Corp. filed their answers and Lipman Bros, filed interrogatories directed to Seagram Distillers.

On January 2, 1976 Seagram Distillers filed a motion for summary judgment and, on January 5th, filed its answers to the interrogatories.

The motion for summary judgment, pursuant to Rule 56, Tennessee Rules of Civil Procedure, asserts that the ground for such motion is that there is no genuine issue as to any material fact in this cause and that it presents a pure question of law and, further, that petitioner, as a matter of law, is entitled to a judgment to the effect that the action of the Commission in refusing permission to transfer certain wholesale distributorships, as alleged in the complaint, is void as being in excess of the lawful powers of that administrative agency or, alternatively, that such action denies the plaintiff rights guaranteed under the Constitution of the United States and the State of Tennessee.

Certain affidavits were filed in support of the motion and interrogatories and responses thereto were filed.

After a hearing the Court entered the following order:

“Order on Motion for Summary Judgment
This cause came on to be heard upon plaintiff’s motion for summary judgment ‘to the effect that the action of the Alcoholic Beverage Commission in refusing to it permission to transfer certain wholesale distributorships, as alleged in the complaint ... is void as being in excess of the lawful powers of that administrative agency or, alternatively, that such action denied to the plaintiff rights guaranteed under the Constitution of the United States and the State of Tennessee.’
The action involved was taken pursuant to a regulation which was stipulated by all parties to be in these words:
‘(7) Approval Required to Transfer to Another Wholesaler. — No manufacturer, importer or other person shall be permitted to transfer a brand from one wholesale distributor to another without written approval of the Commission. Requests for approval of a transfer must be submitted in writing and a copy of said request must at the same time be sent to the wholesale distributor in whose name the brand is then requested.
After due consideration the Commission shall either approve or disapprove the transfer . .
If it be unclear, the above refers to the marketing of liquor and the word ‘brand’ refers to a particular brand of liquor.
The motion for summary judgment can only be granted if the above quoted regulation, read in conjunction with the statutes relating to liquor, is in violation of a Constitution on its face. The Court is of the opinion that the regulation does violate the due process clauses of both the Federal and State Constitutions.
A careful search of the statutes reveals no provision regulating the relationship between manufacturer and wholesaler. Nothing is required of the relationship. No standards for sales, contracts, or dealings are stated.
The motion for summary judgment is granted.
It appears to the Court that the maintenance of the status quo will not cause any irreparable loss. It is, therefore, ORDERED that, for the full protection of rights of appeal, the plaintiff will make no change in its distributor relationship for a period of sixty (60) days.
This decision is based upon the statutes, the stipulated regulation and principles of law. Therefore, an appeal is granted to the Supreme Court upon proper bonds being filed.
Enter this 12th day of January, 1976.
/s/ James M. Swiggart JUDGE”

Motions for a new trial were filed by the defendants and, pursuant to said motions, the order of the Court was amended by including in full the regulation of the Commission which is in question.

The order was further amended by providing that the Commission and its members be permanently enjoined from enforcing or attempting to enforce the foregoing regulation against plaintiff in connection with the transfers of distributorships complained of in the original petition.

Assignments of Error

Appellants, Lipman Bros., Inc., and Southern Distributor Corp., each filed five assignments of error which are essentially identical. The Commission filed four assignments which are, in substance, the same as four of the assignments filed by the other appellants. These assignments will be discussed together.

Assignment No. 1 by all three appellants is that the Court erred in failing to hold that the plaintiff is estopped to challenge the constitutionality of the Commission Rule 0100-3-13(7) because of the Company’s repeated acceptance of the rule’s benefit in the past.

In support of this assignment, appellants assert that one who accepts a statute by acquiescing in it after its passage, or by accepting benefits under it is estopped to deny its validity, citing and relying on Waldauer v. Britton, 172 Tenn. 649, 113 S.W.2d 1178 (1938), where the Court quoted with approval from Am.Jur. as follows:

“The general rule, supported by many authorities, is thus stated in 11 American Jurisprudence, 767:
‘Estoppel is most frequently applied in cases involving constitutional law where persons, in some manner, partake of advantages under statutes. The rule is well settled that one who voluntarily proceeds under a statute and claims benefits thereby conferred will not be heard to question its constitutionality in order to avoid its burdens.’ ”

In 16 Am.Jur.2d, pp. 331-332, in discussing this question, it is said:

“Certainly such a person will not be allowed to retain his advantage or keep his consideration and then repudiate the act as unconstitutional. This principle applies also to questioning the rules or actions of state commissions.
From the foregoing discussion, the rule naturally develops that one who invokes the provisions of a law, in proceedings or otherwise, may be denied the right to question its constitutionality. Thus, one who brings a suit under a statute thereby concedes its validity.”

It is also urged that the Alcoholic Beverage Commission is vested with broad powers to regulate alcoholic beverages, which powers are further broadened by the fact that ordinary rules of construction do not apply to statutes regulating intoxicating liquor, citing McCanless v. Klein, 182 Tenn. 631, 188 S.W.2d 745 (1944); McQueen v. McCanless, 182 Tenn. 453, 187 S.W.2d 630 (1944); and Terry v. Evans, 189 Tenn. 345, 225 S.W.2d 255 (1949).

It is argued that the record shows that the regulation in question has been in effect for more than a quarter of a century and that as long ago as May, 1960, Seagram started switching distributors and on the last fourteen occasions prior to the matters involved in the case at bar changed its distributors of various alcoholic beverages and on each occasion the consent of the Commission, or its predecessor, the Commissioner of Finance and Taxation of Tennessee, was obtained for such transfers. The record also shows that over the past ten years Seagram has been sued on four occasions with respect to the transfer of distributorships.

It is argued that Seagram, after having acquiesced in the validity of the regulation for more than twenty-five years and having accepted its benefit for that period of time, cannot now attack the validity of the regulation.

On the other hand, counsel for appellee argue that the doctrine of estoppel does not affect the right of a party who has obeyed the mandatory provisions of an administrative regulation to contest the validity of that regulation in a subsequent Court proceeding. It is forcefully argued that the power or authority of the administrative agency either exists or does not exist and that such authority may not be conferred upon an agency by the conduct of the parties before it. See 2 Am.Jur.2d, Administrative Law, § 331; East Ohio Gas Co. v. Federal Power Commission, 84 U.S.App.D.C. 312, 173 F.2d 429 (1949), and Union Electric Co. v. Federal Power Commission, 8 Cir., 326 F.2d 535 (1964).

It is pointed out that the doctrine of estoppel is an equitable one to be ordinarily applied where one party misrepresents the facts or misleads another with resulting detriment to the party who is misled and a benefit to the other party. 28 Am.Jur.2d, Estoppel and Waiver, § 27.

Jurisdiction cannot be conferred upon a Court by the party before it. Mayhew v. Mayhew, 52 Tenn.App. 459, 376 S.W.2d 324 (1963); James v. Kennedy, 174 Tenn. 591, 129 S.W.2d 215 (1939).

It is pointed out by counsel that the argument of appellants, if followed to its logical conclusion, means that any party who is required by an apparently valid regulation of an administrative agency to take some particular action and chooses to obey that regulation, does so at his peril in that, after he has obeyed that regulation by taking the action it requires, he may not subsequently be heard to question its validity. This would seem to place a burden upon any party required to take some action by an administrative regulation to contest its validity through litigation prior to his first act of obedience, otherwise he would be permanently barred from taking such action and this is true even though his first act of obedience may not have adversely affected his interest.

It must be remembered that the fundamental principle of Administrative Law as we know it in Tennessee is that a person affected by the rulings or regulations of an administrative body must first present his case to that body and seek relief and then, if the decision of that agency is adverse to his interest, he has a right to seek a Court review of that decision.

In 2 Am.Jur.2d, Administrative Law, § 331, it is stated:

“An administrative agency cannot enlarge its own jurisdiction, nor can jurisdiction be conferred upon the agency by parties before it. Accordingly, it is held that deviations from any agency’s statutorily established sphere of action cannot be upheld because based upon agreement, contract, or consent of the parties, nor can they be made effective by waiver or estoppel.”

The rule is similarly stated in 73 C.J.S. Public Administrative Bodies and Procedure § 116, and in East Ohio Gas Co. v. Federal Power Commission, 84 U.S.App.D.C. 312, 173 F.2d 429 (1949).

As shedding some light on this question, see Polk County v. State Board of Equalization, Tenn.App. (1972), 484 S.W.2d 49, where this Court, speaking through Judge Todd, affirmed the Chancellor’s decision to the extent that it invalidated the Board’s action and held that no waiver had taken place by the mere failure to raise this issue during the administrative proceedings.

As is pointed out in 28 Am.Jur.2d, Estoppel and Waiver, § 27, the doctrine of estoppel is based upon the grounds of public policy, fair dealing, good faith and justice and its purpose is to forbid one to speak against his own act, representations, or commitments to the injury of another who reasonably relied thereon and such an es-toppel cannot arise against the party except when justice to the rights of others demands it.

In considering the case before us, the question of Seagram Distillers having accepted benefits under the questioned regulation provokes the inquiry as to the nature of the alleged benefits and we are unable to find in this record anything that would support the conclusion that Seagram did accept specific benefits under this regulation which, as an equitable proposition, would raise an estoppel as is contended by the appellants.

The benefits to the distributor of the questioned regulation are readily apparent but its restrictions on the producer are not shown to be beneficial to it.

As to Waldauer v. Britton, supra, herein-above referred to and quoted from, the parties seeking relief in that case had clearly derived benefits from the statute which they were challenging and this benefit came in a very tangible form of pay received for their services, prestige, and other perquisites of office which they had enjoyed under the statute. Also,' it is to be noted that in Waldauer the Court was concerned with a challenge to the validity of a statute enacted by the Legislature as opposed to an administrative regulation with which we are concerned in the ease at bar.

Counsel for appellee in this connection make the following plausible argument:

“Stripped of excess verbiage and unsupported contentions about imaginary ‘benefits’, the appellants’ so-called ‘estop-pel’ argument amounts to nothing less than a claim that, if a firm has at some time abided by a purportedly valid regulation of an administrative agency and submitted an application to that agency to do something which, in the absence of such regulation, it would have had a clear right to do, and has received favorable action on that application, that firm may never be heard to question in' Court the validity of such regulation.”

On the whole, we are persuaded to believe that the doctrine of equitable estoppel should not be applied in the case at bar so as to prevent the plaintiff from seeking a declaration by the Court of its rights and duties with respect to the regulation in question. It results that Assignment No. 1 is overruled.

Assignment No. 2 is:

“The Trial Judge erred by deciding the constitutional questions raised herein on Seagram Distillers’ motion for summary judgment because all facts material to the resolution of these questions were not admitted or established.”

While the foregoing assignment was included in those filed on behalf of Lipman Bros, and Southern Distributors Corp., counsel for those two appellants do not discuss this assignment in their briefs and arguments. Said assignment is discussed by the Attorney General on behalf of the Commission.

It is pointed out that since the summary judgment is not intended to be a substitute for the trial of disputed fact issues, the Trial Court’s role in passing upon a motion for summary judgment is only to determine whether there are any material issues of fact to be tried.

It is argued by counsel for the Commission that the Trial Court was in error when he granted the motion for summary judgment because there existed genuine issues of material facts concerning the manner in which the Commission had applied its rule to Seagram Distillers. And, it is pointed out that many Courts, particularly the Federal Courts, treat summary judgments with great caution and it is argued by the Attorney General that the vagueness of the legal theory forming the basis of Seagram Distillers’ complaint together with the lack of certainty of the legal basis of the Trial Court’s opinion both indicate that a summary judgment was not proper in this stage of the proceedings.

The Trial Judge found that there were no material issues of fact before the Court and we are inclined to agree with him. A careful examination of the pleadings and the affidavits as well as the interrogatories filed in the cause show clearly that there are no genuine issues of fact with respect to the application on the part of the plaintiff for a transfer of distributorships and the action of the Commission in denying the request. The action of the Trial Judge in holding the regulation was invalid is clearly stated by him in his decree as above quoted.

The State chose not to put on any proof by way of affidavit or otherwise which controverts or disputes any allegation or statement of fact in the petition and supporting affidavits.

Under Rule 56.05 it is said that an adverse party may not rest upon the mere allegations or denials of his pleading but his response by affidavits or as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

We find no error in the action of the Trial Judge in this respect; consequently, Assignment No. 2 is overruled.

Assignment No. 3 filed on behalf of Lipman Bros. and Southern Distributors Corp., charges that the Court erred in holding as a matter of law that the regulation in question was unconstitutional as viola-tive of the due process clauses of both the Federal and State Constitutions.

In the assignments filed on behalf of the Commission, Assignment No. 3 is that the Trial Court erred by ruling that the Alcoholic Beverage Commission and its regulatory predecessors had no statutory basis upon which to promulgate Rule 0100-3-.13(7), and Assignment No. 4 is that the Trial Court erred in holding that the rule violated the State and Federal Constitutions.

In the brief filed by the Attorney General on behalf of the Commission it is pointed out that a history of the State’s method of regulating the purchase and sale of alcoholic beverages since the enactment of the Twenty-First Amendment is recounted in the case of Chattanooga v. Tennessee Alcoholic Beverage Commission, (Tenn.1975), 525 S.W.2d 470. In the opinion in said case by Mr. Justice Henry it is pointed out that when the Legislature legalized the sale of alcoholic beverages on a local option basis in 1939, the Commissioner of Finance and Taxation was given broad regulatory powers, including the power to promulgate and enforce rules and regulations. Under this authority, the Commissioner promulgated a number of rules, including the rule now designated as 0100-3-13(7).

It is pointed out that the Court construed a related rule in 1945 in McCanless v. Klein, 182 Tenn. 631, 188 S.W.2d 745, and held that said rule as promulgated by the Commissioner was valid.

The regulation remains unchanged and was administered by the Commissioner until the creation of the Alcoholic Beverage Commission in 1963, whereupon, the Legislature transferred many of the Commissioner’s duties with respect to alcoholic beverages to the Commission, including the power to promulgate rules.

In T.C.A. § 57-109(3)(d), et seq., the Legislature went farther and authorized the Commission to promulgate any and all of the regulations that had been in existence since 1939.

T.C.A. § 57-818 provides:

“The commission is hereby authorized to adopt and promulgate the present rules and regulations which are in existence pertaining to alcoholic beverages, and said commission may in its discretion alter, amend or repeal any of such parts of said rules and regulations as it deems necessary.”

Thus it is seen that the Legislature gave implicit approval to the rules governing the purchase and sale of alcoholic beverages which had already been promulgated prior to 1963.

It appears that on November 30,1964, the Commission repromulgated Regulation 13:70 which was designated as Rule 0100-3-.13(7).

In Richardson v. Reese, 165 Tenn. 661, 57 S.W.2d 797, 799 (1933), the Court specifically approved the delegation of rule-making authority by the Legislature to administrative agencies, pointing out that with the growing complexity of modern life and increased difficulty of administering the laws, the delegation of more and .more power by the Legislature to administrative agencies has become necessary and has gained the approval of the Courts. Also see Department of Public Welfare v. Natl. Help “U” Assn., 197 Tenn. 8, 270 S.W.2d 337 (1954); Tasco Corp. v. Long, 212 Tenn. 96, 368 S.W.2d 65 (1968) and other cases.

In McCanless v. Klein, supra, the validity of a very similar regulation was upheld. In said case the validity of a regulation promulgated by the Commissioner of Finance and Taxation concerning the distribution of liquor was involved, said regulation being as follows:

“From and after the effective date of this regulation no wholesale liquor distributor shall add an additional brand to his stock without first securing the written approval of the Commissioner.”

It will be seen that this regulation had substantially the same effect as does the regulation in question in the case at bar since it appears that there would be no practical difference in requiring Seagram Distillers to obtain permission to change distributors and in requiring new distributors to secure written permission of the Commission to add additional lines to their stock.

In an opinion by Justice Chambliss, the Court stated:

“It is difficult to conceive of a regulation of the sale and distribution of intoxicating liquor which could be said to be beyond the police powers of the State. Since the power of the State to prohibit such sales altogether is beyond question, no provision for its regulation is beyond the State’s power.
The Legislature has unlimited powers of regulation and restriction on the liquor traffic and may delegate these powers, as has been done to the Commissioner. His exercise of such delegated discretion will not be lightly interfered with by the Courts.”

It is pointed out in the opinion that the regulation in question requires registration of all brands sold by a dealer and forbids sale or transfers to any dealer of any brand without such registration and the obtaining of a permit therefor and that it is easy to conceive that such provisions will help to keep track of the liquors distributed by tracing responsibility when necessary and in collecting taxes thereon. It is also pointed out that the regulation provides an additional means of identification so essential to efficient administration. See Terry v. Evans, 189 Tenn. 345, 225 S.W.2d 255.

We regard the foregoing authorities as being conclusive of the question raised by Assignment No. 3 by Lipman Bros, and Southern Distributors Corp., and Assignments Nos. 3 and 4 by the Commission, and these assignments are sustained.

Lipman Bros. and Southern Distributors Corp. Assignment No. 4 is that the Court erred in holding as a matter of law that the authority of the Alcoholic Beverage Commission was not broad enough to permit it to adopt the regulation in question in its present form.

For reasons set forth hereinabove with reference to Assignment No. 3 of these appellants, this assignment is sustained.

Lipman Bros. and Southern Distributors Corp. Assignment No. 5 is that the Court erred in failing to stay the effect of its order in the event of an appeal until the appeal was finally disposed of in the Appellate Courts.

In view of the fact that on application Chief Justice Fones entered an order to the effect that the injunction permanently enjoining the Commission from enforcing the regulation at issue in this cause against the plaintiff in connection with the proposed transfer of distributorships is stayed until further orders of the Court, it becomes unnecessary to pass upon the foregoing assignment.

For the reasons hereinabove set forth, the judgment of the Trial Court is reversed and the cause is remanded for such other and further proceedings as may become necessary and proper in the premises.

REVERSED AND REMANDED.

TODD, J., concurs.

DROWOTA, J., not participating.


author: ONION, Presiding Judge. BROWN, Commissioner.

text:
    Carl WATSON, Appellant, v. The STATE of Texas, Appellee.
    No. 51936.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1977.
    Rehearing Denied March 30, 1977.
    Randy L. Schaffer, Jr., Houston, court appointed on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis M. Bell and David Crump, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for the offense of rape. V.T.C.A., Penal Code, § 21.02. Punishment was assessed by the court at twelve (12) years’ confinement in the Department of Corrections following a verdict of guilty.

Initially appellant challenges the sufficiency of the indictment on appeal contending that it was fundamentally defective. There was no motion to quash filed in the trial court.

The indictment, omitting the formal parts, alleged the appellant:

“. . . did then and there unlawfully intentionally and knowingly by force and threats to S_ D_ T_, a female not his wife and hereinafter styled the Complainant, have sexual intercourse with the Complainant and without the consent of the Complainant.”

V.T.C.A., Penal Code, § 21.02 (Rape), provides in part:

“(a) A person commits an offense if he has sexual intercourse with a female not his wife without the female’s consent.
“(b) The intercourse is without the female’s consent under one or more of the following circumstances:
“(1) he compels her to submit or participate by force that overcomes such earnest resistance as might reasonably be expected under the circumstances;
“(2) he compels her to submit or participate by any threat that would prevent resistance by a woman of ordinary resolution . .

Appellant contends the indictment is fundamentally defective because it merely alleges “force” and not “force that overcomes such earnest resistance as might reasonably be expected under the circumstances” and alleges “threats” and not threats “that would prevent resistance by a woman of ordinary resolution.”

He argues his contention is cognizable under Article 27.08, Vernon’s Ann.C.C.P. since there is a failure to allege the constituent elements of the offense of rape.

Under the former Penal Code (1925), indictments alleging rape “by force” or “by threats” or both without defining those terms in the indictment have been upheld as sufficient. Cooper v. State, 22 Tex.App. 419, 3 S.W. 334 (1886); Dyer v. State, 283 S.W. 820 (Tex.Cr.App.1926); Most v. State, 386 S.W.2d 537 (Tex.Cr.App.1965); Lucero v. State, 502 S.W.2d 750 (Tex.Cr.App.1973). Under the former Penal Code it was not necessary that an indictment for rape should allege the character of the force or specify the threats used. It was sufficient to allege in general terms that the rape was accomplished by force, or by threats, or fraud, or by all these means together. Cooper v. State, supra; Dyer v. State, supra; 4 Branch’s Anno.P.C., 2d ed., § 1937, p. 255.

The instant indictment would without question have been sufficient under the former Penal Code. Rape was defined in part in Article 1183, Vernon’s Ann.P.C., 1925, as “the carnal knowledge of a woman without her consent obtained by force, threats or fraud; . . . .” Article 1184, Vernon’s Ann.P.C., 1925, defined “force” as applicable to rape cases and provided, “it must have been such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case.” Article 1185, Vernon’s Ann.P.C., 1925, provided that the “threat” in rape cases “must be such as might reasonably create a just fear of death or great bodily harm, in view of the relative condition of the parties as to health, strength and other circumstances of the case.”

Do the changes wrought by the provisions of V.T.C.A., Penal Code, § 21.02, call for a different result so that the instant indictment is rendered fatally defective because the terms “force” and “threats” are not set out in the indictment as they are in said § 21.02? Does the fact that the definitions of “force” and “threats” are found in the same statute defining rape rather than in separate statutes call for a result different from that reached under the old Penal Code? We conclude that it does not.

Article 21.02(7), Vernon’s Ann.C.C.P., which sets forth the requisites of an indictment, provides, “The offense must be set forth in plain and intelligible words.” Article 21.03, Vernon’s Ann.C.C.P., states, “Everything should be stated in an indictment which is necessary to be proved.” Article 21.04, Vernon’s Ann.C.C.P., provides, “The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.”

Article 21.11, Vernon’s Ann.C.C.P., provides in part:

“An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment . . . ."

Article 21.12, Vernon’s Ann.C.C.P., provides in part:

“When a statute defining any offense uses special or particular terms, indictment on it may use the general term which, in common language, embraces the special term. . . .”

Article 21.17, Vernon’s Ann.C.C.P., provides:

“Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”

In Gray v. State, 77 Tex.Cr.R. 221, 178 S.W. 337 (1915), this court passed on a similar situation to the present case. In Gray the abortion statute had been reenacted. Abortion was defined in a separate paragraph of the new statute. The defendant urged the indictment was fatally defective in that it alleged “abortion,” but did not allege the statutory definition thereof. The court upheld the indictment on the ground that the general term “abortion” embraced the special term found in the statute defining abortion. The court then wrote:

“. . .We think the indictment, as written, is unquestionably of that certainty which will enable the accused to plead the judgment herein given upon it in bar of any other prosecution for the same offense; also that it charges the offense in such ordinary and concise language as to have enabled appellant or any other person of common understanding to know what is meant, and to give her notice of the particular offense with which she was charged, and to enable the court to pronounce the proper judgment of conviction. . . . ” See also Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971).

Further and more recently, this court held in Baldwin v. State, 538 S.W.2d 109 (Tex.Cr.App.1976), that when a term is legislatively defined the necessity for placing a definition in an indictment is dispensed with if the substantial offense is alleged in terms of words that have been assigned a technical meaning.

We conclude the instant indictment is sufficient. The use in the indictment in the instant case of the general terms “force” and “threats” to describe why consent to sexual intercourse was lacking embrace the special terms or definitions in the statute giving adequate notice to the appellant of the elements of the offense with which he was charged. See Article 21.12, supra. The only type of “force” which will support a rape conviction is that which “overcomes such earnest resistance as might reasonably be expected under the circumstances.” The only type of “threat” which will support a rape conviction is that which “would prevent resistance by a woman of ordinary resolution.” The indictment in effect alleged what had to be proved. See Article 21.03, Vernon’s Ann.C.C.P. When the terms “force” and “threats” were used in the indictment, the appellant was given adequate notice of the offense with which he was charged and clearly the language of the Gray opinion and the holding in Baldwin are here applicable.

While generally it is better practice to describe the offense in the indictment in the words of the statute, the instant indictment was not fundamentally defective. It is not necessary that an indictment for rape allege the character of the force or specify the threats. The use of the general terms as in the instant indictment is sufficient. Appellant’s contention is overruled.

It is observed that the court submitted the case to the jury on the charge of rape by threats alone and defined “threat” as set out in V.T.C.A., Penal Code, § 21.02.

Appellant also contends that the evidence was insufficient to show penetration since the prosecutrix testified that the appellant had “intercourse” with her and failed to state that it was sexual intercourse. The rationale of this argument is that there was no way to determine the exact nature of the intercourse engaged in on the night in question.

The record reflects that on August 24, 1974, the prosecutrix awoke in her bedroom to find a man identified as the appellant standing over her. Excerpts from the prosecutrix’ testimony as it related to the issue of penetration are as follows:

“Q. And did the defendant have intercourse with you?
“A. Yes he did.
“Q. Against your will and without your consent?
“A. Uh-huh.
“Q. After having had intercourse with you — did the defendant take his pants off entirely?
“A. I don’t think he did because I sort of remember him just pulling up his britches and taking off.
⅜ sfc ⅜ ⅝: ⅜ *
“Q. And did a policeman come?
“A. Yes.
* * ⅜ * ⅝ *
“Q. Did you tell him that the defendant had threatened you and had had forcible sexual intercourse with you?
“A. Yes.”

Later in the record the prosecutrix added:

“Q: What were you wearing?
“A. I can’t recall. I know I had on my underclothes, but what else, I don’t know.
“Q. Did he take them off?
“A. Undergarment, yes.”

On cross-examination the prosecutrix stated, “I know that he is the one who raped me.” On redirect examination the following exchange took place:

“Q. Now he — I believe your testimony was that he came in and was talking to you and told you what to do, took your underwear off, raped you, went out and came back in again, is that correct, after saying several things to you, threatening your life?
“A. Yes.”

Appellant candidly admits cases holding that testimony of “sexual intercourse” alone would be sufficient proof of the element of penetration. Duckworth v. State, 63 S.W. 874 (Tex.Cr.App.1901); Harris v. State, 473 S.W.2d 37 (Tex.Cr.App.1971). In Clay v. State, 518 S.W.2d 550 (Tex.Cr.App.1975), this court held that the prosecutrix’ testimony that the defendant was “the man that raped me” was sufficient to prove penetration.

The questions and testimony of the prose-cutrix went far beyond the mere assertion that appellant had “intercourse” with her, including the terms “rape” and “sexual intercourse.” We find that the evidence was sufficient to support a finding by the jury that the element of penetration did occur.

The judgment is affirmed.

OPINION

ON APPELLANT’S MOTION FOR REHEARING

BROWN, Commissioner.

Appellant’s motion for leave to file a motion for rehearing was granted to allow a re-examination of this indictment question in light of our recent decisions in Reynolds v. State, 547 S.W.2d 590 (decided on February 23, 1977) and Victory v. State, Tex.Cr.App., 547 S.W.2d 1 (decided on November 3, 1976). We have determined that those cases are distinguishable from the instant case and have no effect on our original opinion.

Reynolds v. State, supra, is distinguishable in that the indictment merely alleged that the accused exercised control over property “unlawfully.” Under V.T.C.A. Penal Code, Sec. 31.03(b) “unlawfully” is given two different interpretations. We determined, therefore, that the Reynolds indictment was defective in that it failed to allege that the accused exercised control over the property “without the owner’s effective consent.”

In the instant case, however, the terms “force” and “threats” have only one meaning under thé rape statute, as discussed in our original opinion. It was, therefore, unnecessary to allege their definitions in the indictment.

Victory v. State, supra, is likewise distinguishable in that it was necessary to allege the specific intent “to arouse or gratify the sexual desire of any person” as an element of the offense of indecency with a child. We held that the requirements of Article 21.05, Vernon’s Ann.C.C.P. required the allegation of the specific intent.

Appellant relies on Posey v. State, 545 S.W.2d 162 (Tex.Cr.App.1977). In that ease, the indictment alleged' the acquisition of a controlled substance by misrepresentation, fraud, deception, and subterfuge, in that the accused presented a prescription which prescribed the substance for another person. We held that the allegation that he merely presented another’s prescription alleged “only a noncriminal act — not a criminal offense,” the reasoning being that it would not be unusual for persons to present prescriptions for other members of their families. It was, therefore, necessary to allege why the presentation of such a prescription amounted to “misrepresentation, fraud, etc.” under Section 4.09(a)(3) of the Controlled Substances Act. In the instant case the allegation of rape by force or threats is not subject to any interpretation other than that described in the statute.

Appellant’s second ground of error referring to the insufficiency of the evidence to show penetration is raised in a pro se document which is captioned “A Writ of Habeas Corpus,” but which the trial court deemed to be “in the nature of an appellate brief.” This contention was adequately disposed of in our original opinion.

Appellant’s motion for rehearing is overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . Article 27.08, Vernon’s Ann.C.C.P., provides:
      “There is no exception to the substance of an indictment or information except:
      “1. That it does not appear therefrom that an offense against the law was committed by the defendant;
      “2. That it appears from the face thereof that a prosecution for the offense is barred by a lapse of time, or that the offense was committed after the finding of the indictment;
      “3. That it contains matter which is a legal defense or bar to the prosecution; and
      “4. That it shows upon its face that the court trying the case has no jurisdiction thereof.”

      . The “Practice Commentary” to V.T.C.A., Penal Code, § 21.02, provides in part:
      “Subsection (b) is an exclusive enumeration of the circumstances under which sexual intercourse between male and female is without the female’s consent. The enumeration does not significantly alter prior law, but for the most part codifies case decisions defining nonconsent.
      “Subsection (b)(1), in defining force that negates consent, is substantially similar to Penal Code art. 1184. . . .
      “Subsection (b)(2) deals with threats and basically preserves Penal Code art. 1185
      See also 2 Branch’s Anno. Penal Statutes, 3rd ed., § 21.02, Explanatory Comment, p. 81.

      . The trial court should always include the statutory definitions in its jury instructions where applicable.

      . See Morrison and Blackwell, New Texas Penal Code Forms, § 21.02A, p. 14; 2 Branch’s Anno.Penal Statutes, 3rd ed., § 21.02, p. 84.