author: BROCK, Chief Justice.

text:
    Mildred P. HORNE v. E. B. PAYNE, Sr. and J. P. Stanley, Trustees, and Union Protective Life Insurance Company.
    Supreme Court of Tennessee.
    Sept. 4, 1979.
    Clay N. Saunders, Memphis, for petitioner; Pittman, Clay, Morgan, Gilliland & Saunders, Memphis, of counsel.
    Erich W. Merrill, Memphis, for respondents.
   OPINION

BROCK, Chief Justice.

In February, 1974, the petitioner, Mildred P. Horne, joined in a deed of trust executed by her son, Onzie 0. Horne, Jr., and his wife, Doris Horne, which was given to secure an indebtedness in the sum of $79,-073.72 owed by Onzie O. Horne, Jr., to Union Protective Life Insurance Company. Petitioner, Mrs. Horne, did not assume the indebtedness of her son but merely pledged her home, a house and lot located at 1602 South Parkway East in Memphis, as a part of the security for that indebtedness. The deed of trust also included three parcels of land owned by Onzie 0. Horne, Jr., and his wife, Doris Horne. Trustees under the deed of trust were E. B. Payne, Sr., and J. P. Stanley, respondents herein.

The deed of trust was in the customary form and contained the provisions usually found in such documents but, in addition, contained an addendum which, in pertinent part, provided as follows:

“Mortgagor shall have the right to have any of the foregoing parcels released from the lien of this deed of trust by a partial release, if he should sell such parcel, upon payment to the mortgagee of the balance due with respect to such parcel. The following balances are now due with respect to each parcel:
(1) 1602 South Parkway East, $19,879.09,
(2) . . .A pro rata portion, based on such balances, of each principal payment hereinafter made on the note secured hereby shall be credited toward reduction of the balance due with respect to each parcel for this purpose . . . .”

Payments were made upon the promissory note secured by said deed of trust until July, 1975. Thereafter, Onzie 0. Horne, Jr., defaulted in making the payments required by the note and deed of trust and the trustees began publication of foreclosure notice on November 26, 1975. However, the foreclosure was delayed by the filing of a petition of bankruptcy by Onzie 0. Horne, Jr., and his wife. In May, 1976, the bankruptcy court granted permission for the foreclosure to continue and the properties were again advertised for sale by foreclosure in June, 1976.

After publication of these foreclosure notices, but prior to foreclosure sale, the petitioner, Mildred P. Horne, in August, 1976, procured a bona fide purchaser for her property at 1602 South Parkway East and tendered to the trustees payment of the sum required by the addendum clause for release of her property under the partial release provisions of the addendum to the deed of trust. The beneficiary under the deed of trust, Union Protective Life Insurance Company, and the respondent trustees refused to accept the tender and demand for partial release.

The petitioner immediately filed suit in the Chancery Court seeking to restrain further foreclosure proceedings against her property and praying for a decree requiring that she be granted the rights provided for partial release under the addendum clause. The Chancellor granted an injunction against foreclosure and entered a final decree approving the proposed sale of her property by the petitioner and a release of her property from the lien of the deed of trust.

The beneficiary and trustees appealed to the Court of Appeals asserting (1) that the Chancellor erred in holding that the petitioner was entitled to a partial release under the addendum clause after a foreclosure had begun and (2) that the Chancellor erred in holding that the proposed sale by the petitioner of her property at 1602 South Parkway East to Mr. Forrest Hamilton was a bona fide sale. The Court of Appeals pretermitted the second issue but decided the first in favor of the appellants, holding that the right of partial release under the addendum to the deed of trust was terminated by the beginning of the out of court foreclosure proceeding. This Court granted the property owner’s petition for certiorari review.

The respondents have filed a cross assignment of error preserving the issue pretermitted by the Court of Appeals, viz., that the Chancellor erred in holding that the property owner, Mrs. Horne, had procured a bona fide purchaser of her property at 1602 South Parkway East. We have considered this assignment of error and reached the conclusion that the evidence supports the finding and determination by the Chancellor that the proposed sale to Forrest Hamilton was a bona fide one and, therefore, sufficient to entitle Mrs. Horne to have her property released from the deed of trust upon compliance with the other requirements of the addendum clause. The fact that Mr. Hamilton was a “friendly buyer” who did not intend to personally reside in the property is of no consequence and does not remove the proposed sale from the bona fide class.

The principal issue presented is whether the commencement of proceedings for foreclosure by the exercise of a power of sale, as provided in the deed of trust, terminated the right of an owner of property covered by the deed of trust to have that property released under a partial release provision upon tender of payment of the sum allocable to that particular piece of property, plus accumulated interest and costs, provided the tender is made prior to an actual foreclosure sale. We conclude that in such a case the right of partial release is not thus terminated.

It is the general rule that, unless the contract provides to the contrary, an owner of property subject to a mortgage or deed of trust may exercise a right of partial release set out in the mortgage or trust instrument, even though default has occurred and foreclosure proceedings have been commenced. Fidelity Mortgage Investors v. Louisiana Pur. Corp., La.App., 297 So.2d 772 (1974); Empress Homes, Inc. v. Levin, Fla.App., 201 So.2d 475 (1967); Norris v. Schwartz, 114 Fla. 248, 153 So. 910 (1934); Gammel v. Goode, 103 Iowa 301, 72 N.W. 531 (1897); Sacramento Suburban Fruit Lands Co. v. Whaley, 50 Cal.App. 125, 194 P. 1054 (1920); Annot., Mortgage—Partial Release Provisions, 41 A.L.R.3d 67 et seq. (1972). See also, Lambert v. Jones, Tenn.App., 540 S.W.2d 256 (1976). This rule is a fair and just one which we approve. To hold to the contrary would amount to our adding an important limitation to the right of partial release which the parties themselves had not agreed to.

The Court of Appeals relied upon Lee v. Security Bank & Trust Co., 124 Tenn. 582, 139 S.W. 690 (1911). That case, however, did not deal with a provision for partial release of mortgaged property and, thus, is not in our view, authority contrary to our decision herein.

The petitioner, Mildred Horne, tendered performance of every condition required of her to be entitled to have her property released from the lien of the deed of trust; the Chancellor was correct in awarding her relief. We, therefore, reverse the judgment of the Court of Appeals and affirm that of the Chancery Court. Costs are taxed against the respondents. The cause is remanded to the Chancery Court for such further action as may be proper in the premises and is in conformity with the conclusions expressed in this opinion.

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


source: Caselaw Access Project

author: FONES, Justice.

license: Public Domain

text:
    Taylor Ted EMERY and Claude Bellar, Appellants, v. The ROBERTSON COUNTY ELECTION COMMISSION et al., Appellees.
    Supreme Court of Tennessee.
    Sept. 4, 1979.
    Rehearing Denied Sept. 17, 1979.

      Arthur E. McClellan, Gallatin, William B. Vest, Kelly, Jones & Vest, Hendersonville, J. Travis Price, Springfield, for appellants.
    Michael R. Jones, James E. Walton, Joe K. Walker, Springfield, for appellees.
   OPINION

FONES, Justice.

This appeal, in two consolidated cases, involves the validity of the August 1978 election contests for the office of Sheriff of Robertson County and for the two Fourth District positions on the Robertson County Commission.

The Election Commission certified that Dan King was elected Sheriff by a margin of eighty-two votes over plaintiff Taylor Ted Emery and that Charles Dorris, with 453 votes, and Russell Shedden, with 342 votes, were elected to the County Commission for the Fourth District. Plaintiff Claude Bellar received 341 votes and a fourth candidate received twenty-three votes in the County Commission race.

In a written opinion rendered on 22 September 1978 the learned Chancellor voided sixty-eight votes and found that two eligible voters were illegally barred from casting their ballots. In addition, the Chancellor found five categories of irregularities, but concluded that the vote totals were not affected thereby. The Chancellor’s comments about those irregularities are significant:

“The Court, upon a review of the testimony involving these five irregularities does not believe there has been a showing, by a preponderance of the evidence, that any one of these five instances or occurrences did in any wise effect the outcome of the election or influence the vote of any person who voted where these things occurred. This does not mean that these acts are to be condoned; it is this Court’s position as it should be the position of all persons charged with the responsibility of fair elections, that no person should be within the 100 foot distance and be in a position to have someone believe that he may or may not be trying to influence a vote or the operation of the election process. These statements are directed to the Election Commission and/or the officials that operate the polls for Robertson County. The acts such as these five cannot be tolerated nor can they be condoned with the thought that they may or may not affect the outcome of any election. No Court should be charged with the responsibility of having to find a fact as to whether any of these five improprieties did affect the popular election of any candidate. The Court has determined that these five occurrences did not violate the election process so as to cause any ballot to be cast out, but how sad it is that it was necessary for this decision to be made and for those of another persuasion to believe that this affected the outcome of any race in Robertson County.”

The trial court then expressed the opinion that in the absence of fraud, the election could only be voided in those races in which the number of void votes cast could mathematically affect the result. Thus, in the Sheriff’s race, sixty-eight votes deducted from King’s total and two added to Emery’s total left King with a twelve-vote margin of victory, and Emery’s suit was dismissed. In the County Commission race in the Fourth District, the trial court dismissed the suit as to Dorris, without comment, but implicitly, because Dorris’ 112-vote margin would require the same result as King’s eighty-two-vote margin, plus the fact that of the seventy rejected votes, many were cast outside the Fourth District. With respect to the second position from the Fourth District, the trial judge directed a recount between Bellar and Shedden by the Election Commission (which he noted would only be possible with absentee ballots) or, if a recount proved to be impossible, that their names be placed on the ballot as contestants in the November election. On that same day, September 22, 1978, the Court entered a decree in the County Commission case directing the Election Commission to place the names of Bellar and Shedden on the November ballot, presumably having made the determination that a recount was impossible.

On October 11, 1978, the trial judge filed a supplemental opinion, prefaced as follows:

“In rendering the original opinion on September 22, 1978, this Court failed to give specific reference and treatment to the reasons for the setting aside of the Commissioner’s election in the 4th district of Robertson County, Tennessee.”

After discussing and analyzing a number of reported decisions, the Chancellor’s opinion concludes as follows:

“The Court would list those voter irregularities in the 4th District Commissioner’s race of Robertson County, Tennessee as follows:
1. Absentee ballots counted which were admittedly void.
2. The disenfranchisement of two voters without cause.
3. Allowing votes to be cast by persons residing outside the 4th District for more,than 90 days prior to the election date.
4. Allowing votes to be cast by persons who were residents of another county for more than 90 days prior to the election date.
If only one of these irregularities had occurred, it might well be said that it was, or they were honest mistakes as the term was used in the case of Ingram v. Burnette [204 Tenn. 149], 316 S.W.2d 31, 33:
It is not any easy task for the courts of our State to set aside and declare elections void. The Courts appreciate the fact that honest mistakes will be made in the conduct of elections.
What we have are a multiplicity of mistakes and/or irregularities and the magnitude of these causes this Court to order a new election as between Mr. Shedden and Mr. Bellar.”

Emery contends that in the Sheriff’s race there was sufficient evidence of fraud and illegality to require a declaration that the election was void because of incurable uncertainty. Bellar makes the same contention with respect to the Fourth District race. In addition, Bellar insists that the Chancellor, in his supplemental opinion, expressly found that the magnitude of the mistakes and irregularities in the Fourth District required a new election because of incurable uncertainty, but erred in failing to void the election as to Dorris; that an election could not be valid as to one candidate and void as to others, in the same race, for the same offices, at the same ballot box.

I.

Included in the sixty-eight witnesses who testified in this case were the following election officials: Martha Ralph, Chairman of the Absentee Counting Board; Mary Sprouse, Registrar at Large; and Joe Henry Carter, Chairman of the Robertson County Election Commission.

The evidence revealed that Martha Ralph had been Chairman of the Absentee Counting Board for seven years and that in the August General Election a total of 628 absentee votes were cast and only four were rejected. The Chancellor rejected twenty-three additional absentee ballots, based upon various irregularities appearing on the face of the voters’ affidavits to their absentee ballot. Mrs. Ralph testified that she thought only one witness was required to the signature of a person signing for an absentee voter unable to write his signature or make his mark. But see T.C.A. § 2-605. However, a number of such absentee ballots having no witness’ signatures thereon were counted by the Absentee County Board. She also was unaware of the provisions of T.C.A. § 2-618(b) requiring the Absentee Counting Board to compile a list of rejected absentee ballots so that the Registrar could advise the voters of such rejections. The Chancellor rejected an additional twenty-two absentee ballots, but the reasons for said rejection were not facial defects that should have been discovered by the Absentee Counting Board. Also included among the absentee ballots counted by the Board and rejected by the Chancellor was the absentee ballot of Mary Sprouse, the Registrar at Large, who took her own oath and signed her own absentee ballot as an attesting official.

Mary R. Sprouse had been employed by the Robertson County Election Commission for almost fourteen years at the time of the trial. The evidence showed that she failed to record the answers to five questions on the applications for permanent registration of 279 voters who voted in the August 1978 election. We agree with the Chancellor that those voters should not be disenfranchised because of failure of the Registrar to perform her duties properly.

Perhaps the most appalling dereliction of duty in this record is exemplified by the evidence that the Registrar handed to Dan King, the incumbent Sheriff and candidate for re-election, twenty-five applications for absentee ballots, and she or a deputy registrar gave fifteen to one William Ellis, and she testified that she would have given anyone who asked for them as many as they requested. Such acts were in direct violation of T.C.A. § 2-607. The Registrar’s testimony about the handling of the absentee ballot applications is significant:

“Q. Did the Commission make you aware of the statute that provides that no more than one application for absentee voting may be furnished to any voter?
THE COURT: Mr. McClellan, there’s nothing wrong with your question. But sometimes when you ask too long a question, the witness will answer it; but otherwise they don’t understand it.
EXAMINATION CONTINUED BY MR. McCLELLAN:
Q. You haven’t received any instructions about the applications in terms of giving them out. Is that correct?
A. No.
Q. Have you or people within the office, from your personal observation, dispensed numerous applications for absentee ballots to one voter? What I’m asking is— A. Anyone came in to get an application, we let them have it. Is that what you’re asking me?
Q. No, ma’am. What I’m asking is did you give Mr. King over here a handful of applications?
A. I gave him as many as he asked for. Q. Did you give other people as many as they asked for?
A. Anybody that asked for them, we gave them.”

This Court in Hilliard v. Park, 212 Tenn. 588, 370 S.W.2d 829 (1963), gave extensive consideration to the question of absentee voting irregularities in applying the absentee voting laws then in effect. Ch. 380, 1963 Tenn.Pub.Acts, then codified at T.C.A. § 2-1601 et seq.

The purpose section of the 1963 Absentee Voting Act provided in part:

“It is declared to be the intent of the general assembly ... to prevent fraud in elections . . . election officers shall receive no absentee voter’s ballot unless the provisions of this Act shall have been literally complied with, all regulatory provisions hereof being made mandatory . . . .” Ch. 380, § 1,1963 Tenn.Pub.Acts.

The Hilliard court interpreted that language as evincing an intent on the part of the Legislature that the absentee voting statutes be given a strict rather than a liberal construction. The Court also examined and quoted from decisions of other states and concluded that the great majority of jurisdictions adhered to the same rule. Typical of the quotes approved is the following:

“ ‘Election laws should be construed liberally in favor of the right to vote but this is not the rule as to absentee voting laws. Being in derogation of the common law, they should be strictly construed. The reason for the difference is that purity of the ballot is more difficult to preserve when voting absent than when voting in person. Guice v. McGehee, 155 Miss. 858, 124 So. 643, 125 So. 433; Straughan v. Meyers, 268 Mo. 580, 187 S.W. 1159; In re Baker, 126 Misc. 49, 213 N.Y.S. 524; Opinion of Justices, 44 N.H. 633.’ ” 370 S.W.2d at 832, quoting from State ex rel. Whitley v. Rinehart, 140 Fla. 645, 192 So. 819 (1940).

The purpose section of the 1972 Act, applicable to this case, provides in part as follows:

“To prevent fraud in elections no voter’s absentee ballot may be received unless the provisions of this chapter are strictly complied with.” Ch. 740, § 1, 1972 Tenn. Pub.Acts.

Obviously, the language of the 1972 Act expressly requires a strict construction of the absentee ballot statutes, consistent with the Court’s ruling in Hilliard.

King admitted obtaining twenty-five applications for absentee ballots from the Office of the Robertson County Election Commission. He acknowledged delivering applications to Jeanette Swift, Ernest Crab-tree and Edna McClurkan and remembered, “carrying several applications to different people.” Edna McClurkan and William Ellis both work at the Springfield Healthcare Nursing Home. Sheriff King testified that when he delivered applications to Mrs. McClurkan, they “had already had a social worker to complete this process there.” Presumably that was William Ellis who had obtained fifteen applications. The Chancellor rejected fifteen absentee ballots cast by voters at the nursing home, apparently accounting for those applications obtained by Ellis.

The evidence shows that Jeanette Swift’s efforts resulted in seven absentee ballots cast by the Shannons, the Templetons and the Gruggs; that William Duffer, the Chief Deputy Sheriff and also a notary public, was dispatched by Sheriff King in a county vehicle to take the oaths of the Shannons, the Templetons and the Grubbs. Sheriff King testified that he “believed” that Mrs. Swift had handcarried those seven absentee ballots to his office and he carried them to the election office, another violation of the absentee voting statutes. Those seven ballots were also rejected by the Chancellor.

Joe Henry Carter, the Chairman of the Robertson County Election Commission, acknowledged that he was a known supporter of Sheriff King. From this cold record, it appears that it was with some reluctance that he acknowledged that it was improper for King and Ellis or anyone else to receive more than one application for absentee voting. He was asked about the extent of instructions and seminars given to commission members, registrars and election officials. Suffice it to say that the evidence adduced shed no light whatever upon the question of why such glaring irregularities occurred.

Ernest Crabtree held a special commission from Sheriff King and contributed money to his campaign. He testified that King gave him applications on two different occasions. He said that “a fellar came by and said he had six or seven people that wanted absentee ballots.” No names were given. Apparently the other occasion resulted in his obtaining applications that were given to Phillip, Ray and Sherry Henderson, who voted absentee. The three Henderson votes were rejected by the Chancellor.

II.

The reported decisions of this State uniformly authorize the courts to void an election where the evidence reveals that the number of illegal ballots cast equals or exceeds the difference between the two candidates receiving the most votes. The rule is based upon the rationale that if all of the illegal votes had been cast for the unsuccessful candidate the result would have been changed. See, e. g., Ingram v. Burnette, supra, Hilliard v. Park, supra. In Southall v. Billings, 213 Tenn. 280, 375 S.W.2d 844 (1963), Mr. Justice White, writing for the Court, suggests that such a mathematical purging of votes renders the election void because of the uncertainty of result. Id. 375 S.W.2d at 850.

The courts may also void elections upon a sufficient quantum of proof that fraud or illegality so permeated the conduct of the election as to render it incurably uncertain, even though it cannot be shown to a mathematical certainty that the result might have been different.

In State ex rel. Davis v. Kivett, 180 Tenn. 598, 177 S.W.2d 551 (1944), this Court affirmed the trial court’s voiding of an election in Claiborne County wherein the successful candidate was shown to have contributed to a fund used to purchase over 4,000 poll tax receipts in bulk, as distinguished from individual purchases. In addition, the Chancellor had found such irregularities of the Springdale precinct that the entire vote of that box was cast out. The Chancellor had found “many violations of law and many of the safeguards surrounding the election were disregarded, especially at Springdale and Fork Ridge, so much so as to render the election incurably uncertain, thus rendering it impossible to purge the returns. It results that a decree will be entered declaring the election void and taxing defendant with the costs.” Id. 177 S.W.2d at 554.

Justice Gaylor writing for the Court concurred in the Chancellor’s finding with the observation that,

“[T]he election for County Judge was so permeated with fraud and illegality as to compel the conclusion that it was not in fact, an expression of the will of the electors . . . .” Id. 177 S.W.2d at 555.

See, e. g., Southall v. Billings, supra; Ingram v. Burnette, supra.

In Kivett there was proof of actual fraud as well as violations of the election statutes. In Ingram a single fraudulent scheme resulted in 138 persons voting illegally in the election. In Southall the complaint that was dismissed in the trial court oil demurrer, but held sufficient by this Court, contained allegations of actual fraudulent acts as well as violations of the statutes.

In this case, we agree with the Chancellor that there is no evidence that would justify a finding of fraudulent intent on the part of any of the officials or candidates. This gives rise to the question of whether any election can be declared void, upon a showing of illegalities and irregularities, absent actual fraud.

The first purpose declared by the Legislature in enacting our present election laws was that “[t]he freedom and purity of the ballot is secured.” T.C.A. § 2-102(a). The integrity of the ballot is jeopardized upon violation of any of the procedural safeguards that the Legislature has included in the election laws, which are obviously designed to (1) prevent undue influence or intimidation of the free and fair expression of the will of the electors or (2) insure that only those who meet the statutory requirements for eligibility to vote, cast ballots. A ballot cast in violation of statutory safeguards falling within those categories affects the freedom and purity of the ballot to exactly the same extent as a ballot tainted with actual fraud, as in Ingram. Violations of those statutes, such as the absentee voting statutes, present the opportunity for fraud, whether committed or intended. See Larson v. Locken, 262 N.W.2d 752 (S.D.1978). Thus, whether there is proof of actual fraud only, or violations of statutory safeguards only, or a combination of the two, the issue is whether or not those acts, viewed cumulatively, compel the conclusion that the election did not express the free and fair will of the qualified voters. See Johnson v. Trnka, 154 N.W.2d 185 (Minn.1967).

III.

The irregularities found by the Chancellor in the Fourth District fall within the two categories of statutory safeguards discussed above, and we concur in said find: ings. However, we think it was inconsistent to hold that the irregularities voided only that portion of the election involving Bellar and Shedden.

The proof shows that thirty-seven absentee ballots were cast in the Fourth District and that at least eleven, if not more, of the absentee ballots rejected were cast by Fourth District voters. Thus, the Chancellor could have voided the certification of Shedden, who had only one more vote than Bellar, on that simple mathematical calculation and his supplemental opinion of October 11, 1978, would have been unnecessary.

But the new election was ordered on different grounds, to wit, irregularities of such magnitude that the election in that district was rendered incurably uncertain. The irregularities found by the Chancellor were of such a nature that it was impossible to say that they affected the vote for candidates Bellar and Shedden but did not affect the vote for candidate Dorris, or that they did not affect the vote in the Sheriff’s race.

Sheriff King received a total of 495 votes and Emery 231 in the Fourth District, giving King a margin of 264 votes. Thus upon casting out the entire vote in the Fourth District, King’s eighty-two-vote margin disappears, and Emery has a margin of 182 votes in excess of King. Obviously, the Sheriff’s race is rendered incurably uncertain by voiding the vote in the Fourth District.

The Sheriff’s race must be voided for another reason. The Chancellor’s vote purge left King with a twelve-vote margin of victory. Tracing the forty absentee ballot applications given to Sheriff King and William Ellis, we conclude, from the record that all fifteen of Ellis’ applications were involved in the nursing home rejections, and ten of the twenty-five King applications were rejected, leaving fifteen unaccounted for. We think it is appropriate and necessary that an additional fifteen votes be declared void in the Sheriff’s race because of the personal participation of the candidate in violation of the absentee voting statutes.

The result is that the Sheriff’s election and the August and November elections for two positions on the Robertson County Commission from the Fourth District are voided, and the respective offices are declared vacant. See Southall v. Billings, supra; Stambaugh v. Price, 532 S.W.2d 929 (Tenn.1976). Until the next election the vacancies will be filled by such persons as may be appointed by the county legislative body, and the clerk of this Court will certify this judgment to that body in accord with T.C.A. § 8—2806. Tenn.Const. Art. 7, § 2.

Costs are adjudged against the Robertson County Election Commission.

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


text:
    Lewis Carl McDOWELL, Petitioner, v. Bonnie Ruth McDOWELL, Respondent.
    Supreme Court of Tennessee.
    Sept. 4, 1979.

      Randall L. Nelson, Chattanooga, for petitioner.
    Stephen T. Greer, Greer & Smith, Dunlap, for respondent.
   OPINION

FONES, Justice.

Bonnie Ruth McDowell was awarded a divorce from Lewis Carl McDowell on the grounds of cruel and inhuman treatment. The gross value of the parties’ jointly owned property at the time of the divorce was $202,350, and their only obligation was a $10,000 note held by Sequatchie County Bank upon which they were jointly liable.

The learned trial judge awarded wife property valued at $101,300 and husband property valued at $101,050, which was as near a 50/50 division under T.C.A. § 36-825 as the varied assets distributed would permit. The decree further provided that, “[t]he defendant should be required to assume the entire balance of said promissory note, said assumption to be in lieu of child support payments and also pursuant to the division of the jointly owned property.”

The Court of Appeals found that the evidence would not support an award of $5,000 child support and that, “[i]t is doubtful that the provision could be fully justified on the other grounds already mentioned,” a reference to the allocation by the trial judge of some unspecified portion of the $5,000 as a division of the jointly owned property.

The Court of Appeals simply reallocated the $5,000 as $1,000 child support and $4,000 alimony.

While husband’s petition to this court continues to insist, as he has below, that a one-half interest in 50 acres of a 91 acre tract was a gift by his parents and should be excluded from the jointly owned property to be divided, his principal thrust is simply that the net assets of the parties should be divided 50/50, including joint assumption of the bank debt.

The Court of Appeals found, in part, as follows:

“The primary asset other than their home, consisted of approximately 91 acres of property adjacent to the home, about one-half of which (46 acres) is cleared and the remainder of which is timberland. It is shown that originally this property was bought by the parties as tenants-in-eom-mon with the defendant’s parents, Lewis and Mae McDowell who, thereafter, deeded the property to plaintiff and defendant and received in return the tenancy-in-common interest of the parties in another forty acre tract. The per acre value of the tracts was approximately equal, so, in effect, the defendant’s parents made a gift of their one-half interest in fifty acres to their son, Carl, and his wife, the plaintiff.
The plaintiff expressed a desire to have only one-half of the assets of the parties, and Mr. McDowell, the defendant, agreed that she was entitled to one-half of their assets.”

The evidence supports those findings and we are of the opinion that the award of any alimony, in addition to fifty percent of the net assets of the parties was erroneous.

With reference to the child support, the parties’ daughter was twenty-three years old and married and their son was only seven months short of his eighteenth birthday on the date of the trial, four months from the date of entry of the final decree. The trial judge’s child support award imposing the wife’s $5,000 of the bank indebtedness upon the husband, and hinging the award, in part, to a division of the jointly owned property renders it impossible for this Court to ascertain what portion was child support and what portion was an additional award of jointly owned property.

Nevertheless, we have a record in which both lower courts have made an award of child support and we are of the opinion that the award of $1,000 made by the Court of Appeals was proper and should be affirmed.

We think it improper to make a child support award, by decreeing that a parent will assume a bank debt of the custodial parent.

The judgment of the Court of Appeals will be modified by eliminating the $4,000 allocation of wife’s portion of the bank debt as alimony and adjudging her jointly liable with the husband for the entire debt and ordering that husband pay wife the sum of $1,000 as child support for the period from the date of the decree until the eighteenth birthday of their son. In all other respects the decree of the trial court is affirmed and this cause is remanded to that court for the entry and enforcement of the decree.

The costs of this appeal will be adjudged one-half against husband and one-half against wife.

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


author: COOPER, Justice. BROCK, Justice,

text:
    Carl Edward LAVON, Sr., Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Sept. 4, 1979.

      David 0. Kemp, Bolivar, for petitioner.
    John F. Southworth, Jr., Asst. Atty. Gen., William Leech, Jr., Atty. Gen., State of Tennessee, Nashville, for respondent.
   OPINION

COOPER, Justice.

We granted certiorari in this case to consider the defendant’s claim that successive prosecutions in state and federal court, predicated on the same act, violated constitutional guarantees against double jeopardy. We hold that they do not.

In December, 1976, the defendant robbed a bank in Hardeman County, Tennessee, at gunpoint. As a result, he was indicted by a federal grand jury for the robbery of a federally insured bank, as proscribed by 18 U.S.C. § 2113(a). He was also indicted by the Hardeman County grand jury for bank robbery with the use of a firearm, T.C.A. §§ 39-3902 & 39 — 4914. Subsequently, he pled guilty to the federal indictment. The defendant then sought to have the state indictments dismissed. The trial judge granted the motion, holding, with respect to the charge of bank robbery, that this second prosecution for the same act would subject the defendant to double jeopardy. The trial judge also dismissed the indictment for the use of a firearm in the commission of a felony, T.C.A. § 39-3414, on the grounds, first, that it too subjected the defendant to double jeopardy, secondly, that it was a lesser offense that merged in the greater offense of bank robbery, and thirdly, that the statute was an unconstitutional encroachment on the authority of the courts to administer justice. On appeal, the Court of Criminal Appeals reversed, and reinstated both indictments.

The defendant has made no specific assignments of error before this court, instead merely asserting, in general terms, that the Court of Criminal Appeals was incorrect. This is insufficient to comply with the rules of this court. Supreme Court Rule 14. Nevertheless, we have considered the petition, and attempted to glean from defendant’s argument the substance of his claim. See Renner v. State, 187 Tenn. 647, 216 S.W.2d 345 (1948).

As we noted before, the primary issue raised by the defendant, and the one that prompted our grant of certiorari, is whether the defendant’s trial in state court on a charge of bank robbery, after his previous conviction in federal court for the same offense on the basis of the same act, either would constitute double jeopardy so as to be forbidden by the federal or Tennessee constitutions, or would so offend against the fairness that underlies our system of justice as to be otherwise unacceptable.

There is no question but that such a procedure does not subject the defendant to double jeopardy insofar as the guaranty of due process in the 14th amendment of the federal constitution is concerned. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). While the rationale of this case — that the state and federal governments are distinct sovereignties, and .thus the punishment of a single act by each is not double jeopardy — has been criticized, a similar approach has provided the basis for a more recent case, which would imply that Bartkus’ analysis of the issue is still valid. See United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). This court is bound by the decisions of the United States Supreme Court concerning the proper interpretation of the federal constitution. Townsend v. Clover Bottom Hospital and School, 560 S.W.2d 623 (Tenn.1978).

The double jeopardy provision of the Tennessee constitution, Article I, § 10, affords the defendant no greater protection. In the past, this provision has been interpreted to permit successive state and federal prosecutions on the basis of the same “dual sov-ereignties” analysis employed in Bartkus, supra, and, given the need for stability in constitutional interpretation, we see insufficient cause to depart from that precedent now. See, e. g., State v. Rhodes, 146 Tenn. 398, 242 S.W. 642 (1922); Beard v. State, 485 S.W.2d 882 (Tenn.Cr.App.1972). A similar approach has been adopted by the vast majority of other jurisdictions in which the question has not been settled by statute. See, e. g., State v. Castonguay, 240 A.2d 747 (Me.1968); State v. Cooper, 54 N.J. 330, 255 A.2d 232 (1969); State v. Rogers, 90 N.M. 604, 566 P.2d 1142 (1977); State v. West, 260 N.W.2d 215 (S.D.1977).

A more difficult question is whether this court should nevertheless place some restrictions on this practice of successive prosecutions, even in the absence of a constitutional basis for such a holding. We have concluded that we should not. We have grave doubts as to the inherent fairness of any procedure that forces an individual to defend himself against multiple prosecutions for the same crime. The burden placed on a defendant in such a case is no less if the prosecutions are carried out by two sovereigns rather than one. See Bartkus v. Illinois, 359 U.S. at 150-164, 79 S.Ct. 676, Justice Black dissenting. However, we have even graver doubts as to the propriety of this court abandoning such a firmly established rule of law, absent compelling circumstances. Established precedent, frequently reaffirmed by this court, and long accepted by the legislature, should not be departed from lightly. Hall v. Skidmore, 180 Tenn. 23, 171 S.W.2d 274 (1943). See also Edingbourgh v. Sears, Roebuck & Co., 206 Tenn. 660, 337 S.W.2d 13 (1960); Monday v. Millsaps, 197 Tenn. 295, 271 S.W.2d 857 (1954). As was said in a similar context:

We appreciate the ease with which, if we were careless or ignorant of precedent, we might deem it enlightened to [adopt such a rule]. We do not forget the continuous process of developing the law that goes on through the courts, in the form of deduction, or deny that in a clear case it might be possible even to break away from a line of decisions in favor of some rule generally admitted to be based on a deeper insight into the present wants of society. But the improvements made by the courts are made, almost invariably, by very slow degrees and by very short steps. Their general duty is not to change, but to work out, the principles already sanctioned by the practice of the past. No one supposes that a judge is at liberty to decide with sole reference to his strongest convictions of policy and right. His duty in general is to develop the principles which he finds, with such consistency as he may be able to attain. Stack v. New York, N. H. & H. R. Co., 177 Mass. 155, 58 N.E. 686, 687 (1900) (Holmes, C. J.).

At present, “we perceive no such pressing need of our anticipating the legislature as to justify our departure from what we cannot doubt is the settled tradition of the common law.” Idem, at 58 N.E. 687. Certainly, the equities of this case do not demand it: The defendant pled guilty in federal court, and received a sentence of twelve years for a crime that the legislature of this state has deemed so serious as to require a minimum punishment of twenty years. T.C.A. § 39-3902. Furthermore, should the defendant be convicted of the state charges, the trial judge at that time may mitigate any oppressive effects that the dual convictions might have, such as by ordering the state sentence run concurrently with that imposed in federal court, as the record before him may demand. See Rule 32(b), Tennessee Rules of Criminal Procedure; State v. Graham, 544 S.W.2d 921 (Tenn.Cr.App.1976). Thus, we hold that the question of the propriety of successive state and federal prosecutions for the same act, being essentially one of policy, is best “committed to the intelligence and discretion” of the legislature, and we leave it to their considered judgment. Rush v. Great American Insurance Co., 213 Tenn. 506, 376 S.W.2d 454, 459 (1964). See State v. Rogers, 90 N.M. 604, 566 P.2d 1142 (1977).

The other issues alluded to by the defendant are worthy of only brief consideration, as he himself tacitly admits. As it has been construed by this court, T.C.A. § 39-4914 provides for enhanced punishment for those who commit certain crimes with the use of a firearm, and thus is not merged into the offense of bank robbery, nor does the prosecution of the defendant under that statute as well as under the statute proscribing bank robbery subject him to double jeopardy. See State v. Hudson, 562 S.W.2d 416 (Tenn.1978). As the setting of punishment is a legislative function, the mandatory aspects of the sentence imposed by T.C.A. § 39—4914 do not constitute an unconstitutional encroachment on the power of the judiciary. Cf. Sandford v. Pearson, 190 Tenn. 652, 231 S.W.2d 336 (1950).

The judgment of the Court of Criminal Appeals is affirmed, and the case remanded to the trial court for further proceedings.

FONES and HARBISON, JJ., concur.

HENRY, C. J., and BROCK, J., dissent.

BROCK, Justice,

dissenting.

In writing the opinion for the Court, Mr. Justice Cooper, as he customarily does, has accurately and fairly stated the law as it presently exists and is pertinent to this case in which the State of Tennessee seeks to prosecute and punish the defendant for robbing a bank in Hardeman County, although he has already been tried by the Federal Government and sentenced to a term of 12 years for the same robbery.

Nevertheless, I respectfully dissent from the decision of the Court holding that the State may proceed with a second trial and punishment. I do so although it appears that the United States Supreme Court, as indicated in its recent decision in United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), still takes the position that the double jeopardy and due process clauses of the Constitution of the United States permit not only double jeopardy but also double punishment for the same conduct so long as that conduct is proscribed both by an act of Congress and a state statute.

Although it may be permissible under the Federal Constitution as presently interpreted for Tennessee to try the petitioner, La-von, a second time and to punish him a second time for the single act of robbing the Hardeman County bank, I am unwilling to agree that such procedure complies with the Constitution of the State of Tennessee. I would interpret the double jeopardy provision of Article I, Section 10, and the “law of the land” provision of Article I, Section 8, of the Constitution of Tennessee, to prohibit such double jeopardy and double punishment under the circumstances of this case.

For the purpose of construing and applying the double jeopardy provision of Article I, Section 10, of the Constitution of Tennessee, I would hold that a substantial identity of offenses exists when an act of Congress and a statute of the Tennessee legislature each proscribes essentially the same conduct, as in this case the robbery of a bank, and prescribes substantial punishment for the offender, as is also true in the instant case. If, at the time the State prosecution came on for trial, it were shown that the defendant had been either acquitted or convicted in the Federal court for the substantially identical offense, I would hold that his further prosecution by the State is prohibited by Article I, Section 10, and by Article I, Section 8, of the Constitution of Tennessee. It is my view that such a procedure would more nearly comport with common sense, the sentiments of our people, and serve to implement the protection against double jeopardy embedded in the Constitutions of both the nation and the state than does the opinion of the Court in the instant case. See, Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971); People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976); State v. Hogg, N.H., 385 A.2d 544 (1978).

Because he says it so well, I adopt, as an expression of my own views, the following excerpt from the dissenting opinion of Mr. Justice Black, writing for himself, Chief Justice Warren and Mr. Justice Douglas, in Bartkus v. People of State of Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), to wit:

“Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into the Greek and Roman times. Even in the Dark Ages, when so many other principles of justice were lost, the idea that one trial and one punishment were enough remained alive through the canon law and the teachings of the early Christian writers. By the thirteenth century it seems to have been firmly established in England, where it came to be considered as a ‘universal maxim of the common law.’ It is not surprising, therefore, that the principle was brought to this country by the earliest settlers as part of their heritage of freedom, and that it has been recognized here as fundamental again and again. Today it is found, in varying forms, not only in the Federal Constitution, but in the jurisprudence or constitutions of every State, as well as most foreign nations. It has, in fact, been described as a part of all advanced systems of law and as one of those universal principles “of reason, justice, and conscience, of which Cicero said:
‘Nor is it one thing at Rome and another at Athens, one now and another in the future, but among all nations it is the same.’ ”
While some writers have explained the opposition to double prosecutions by emphasizing the injustice inherent in two punishments for the same act, and others have stressed the dangers to the innocent from allowing the full power of the state to be brought against them in two trials, the basic and recurring theme has always simply been that it is wrong for a man to ‘be brought into Danger for the same Offense more than once.’ Few principles have been more deeply ‘rooted in the traditions and conscience of our people.’ The Court apparently takes the position that a second trial for the same act is somehow less offensive if one of the trials is conducted by the Federal Government and the other by a State. Looked at from the standpoint of the individual who is being prosecuted, this notion is too subtle for me to grasp. If double punishment is what is feared, it hurts no less for two ‘Sovereigns’ to inflict it then for one. If danger to the innocent is emphasized, that danger is surely no less when the power of the State and Federal Governments is brought to bear on one man in two trials, than when one of these ‘Sovereigns’ proceeds alone. In each case, inescapably, a man is forced to face danger twice for the same conduct.
The Court, without denying the almost universal abhorrence of such double prosecutions, nevertheless justifies the practice here in the name of ‘federalism.’ This, it seems to me, is a misuse and desecration of the concept. Our Federal Union was conceivéd and created ‘to establish Justice’ and to ‘secure the Blessings of Liberty,' not to destroy any of the bulwarks on which both freedom and justice depend. We should, therefore, be suspicious of any supposed ‘requirements’ of ‘federalism’ which result in obliterating ancient safeguards. I have been shown nothing in the history of our Union, in the writings of its Founders, or elsewhere, to indicate that individual rights deemed essential by both State and Nation were to be lost through the combined operations of the two governments. Nor has the Court given any sound reason for thinking that the successful operation of our dual system of government depends in the slightest on the power to try people twice for the same act.” 79 S.Ct. at 696-98.

Accordingly, I would reverse the judgment of the Court of Appeals and affirm that of the trial court. I am authorized to say that Mr. Chief Justice HENRY joins in this dissent.

      . It is noteworthy that, of the more than twenty jurisdictions that have either abandoned or modified the “dual sovereignty” doctrine, we have found only four that have done so by judicial decision, rather than by statute. See Commonwealth v. Cepulonis, 373 N.E.2d 1136 (Mass.1978); People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976); State v. Hogg, 385 A.2d 844 (N.H.1978); Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971).

      . “That no person shall, for the same offense, be twice put in jeopardy of life or limb.” Article I, Section 10, Constitution of Tennessee.


author: NEARN, Judge.

text:
    HOHENBERG BROTHERS COMPANY, Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
    Court of Appeals of Tennessee, Western Section.
    Jan. 24, 1979.
    Certiorari Denied by Supreme Court Aug. 27, 1979.

      Robert M. Johnson, Susan M. Callison, Memphis, for appellant.
    Allan B. Thorp, Memphis, for appellee.
   NEARN, Judge.

Delivery or non-delivery, that is the question.

A boxcar load of cotton bales belonging to plaintiff, Hohenberg Brothers Company, having an admitted value of $17,872.02 burned at Galveston, Texas. Plaintiff was of the opinion that at the time of the loss the goods were in the custody of the defendant carrier, Missouri Pacific, and that, pursuant to 49 U.S.C. § 20(11) the defendant owed plaintiff for the value of the goods. Defendant was of the opinion that it had not the custody of the goods at the time of the loss and, therefore, was not liable.

To settle the dispute, plaintiff filed suit and the matter was tried on depositions in the Circuit Court of Shelby County. The Trial Judge found that a uniform straight bill of lading had been signed by the railroad and although a certain business practice existed between plaintiff, through its agent, and the defendant railroad, such practice was one merely of convenience and did not affect the legal possession or the delivery of the goods to the carrier. Therefore, the Trial Judge concluded that the defendant was in constructive, if not actual, possession of the goods at the time of the loss and liable to plaintiff for their value.

Defendant has appealed and insists that a signed bill of lading is only prima facie proof of delivery and acceptance by the railroad and that business custom or practice may contradict the bill of lading to show the true state of affairs; and further that in this case, such practice shows that in fact the goods were not in actual or constructive possession at the time of the loss.

This matter arrives in this Court for a review de novo accompanied by a presumption of the correctness of the finding and judgment below. T.C.A. 27 — 303.

We have underlined the word review in the previous paragraph as we believe counsel for the plaintiff-appellee misconstrues both the nature and scope of review of this Court.

We believe there is misunderstanding regarding the nature of this Court because, in counsel’s brief, it is noted that “At the time of the taking of all depositions, objections except as to the form of the question were reserved for the trial”. Then objections are made in the appellate brief to certain portions of the testimony found in the depositions and we are requested to rule on those objections.

This Court is a court of review, not a Trial Court. We do not try a case de novo as does a Circuit Judge on an appeal from the General Sessions Court. In a de novo trial the Circuit Judge does not review the action of the General Sessions Judge and is not concerned with what took place in the General Sessions Court nor the propriety of the lower Court’s action; and no presumption of correctness attaches to the General Sessions judgment. The matter is tried as if no other trial had occurred.

The nature of a Court of review is entirely different. It is the function of a Court of review to review the actions of the Trial Judge. If it were not so, there would be no need to preserve a record on appeal, for the parties would just have at it all over again in this Court. Additionally, in this Court it is the appealing party who must carry the burden, no matter whether plaintiff or defendant below. In this case, the record does not reveal that any of the objections to testimony now made in this Court were ever made in the lower Court or ruled on by the Trial Judge. Therefore, we are unable to consider such objections on review.

As to the scope of review, counsel correctly cites to us T.C.A. 27-303 and the case of Bankers Life & Casualty v. Jenkins (1977 Tenn.) 547 S.W.2d 237 for the proposition that our review of non-jury cases is de novo, and that there accompanies the judgment below a presumption of correctness unless the evidence preponderates to the contrary. Since the case before us for review is non-jury, that legal proposition is appropriate.

However, in support of the judgment below counsel cites us to Mazanec v. Aetna Ins. Co. (1973 Tenn.) 491 S.W.2d 616 and Stone v. Stonecipher (1928 M.S.) 7 Tenn.App. 614, for the proposition that “If there is any material evidence to support the finding of the Trial Judge, the Reviewing Court should not disturb the finding.” Of course, reviews under “preponderance of the evidence” and “material evidence” tests are not similar and, in fact, are poles apart. Under the preponderance of evidence test, the evidence is weighed by the reviewing Court on an evidentiary fact scale. Whichever side of the fact scale is heavier will be the finding of the Court. Where the review is on the test of “material evidence” no scale of evidence is used by the reviewing court. It is simply a search of the record to ascertain if material evidence is present to support the verdict. It matters not a whit where the weight or preponderance of the evidence lies under a material evidence review. The reviewing Court might well be of the opinion that the evidence preponderates heavily against the judgment below, but under a material evidence review, if material evidence is found to support the judgment, that is, evidence from which a trier of facts, if he were inclined to believe it, could reach the conclusion reached, then, the judgment based thereon must be affirmed. That is why a “material evidence” test is one of law; not of fact. To search for the presence of evidence is a task of law. To weigh evidence is a task of fact.

The case of Mazanec v. Aetna Ins. Co., supra, was a non-jury case reviewed under the material evidence rule. However, the case has no relevance to a review of this non-jury case. Mazanec was a workman’s compensation case review in the Supreme Court where the rule is that workman’s compensation judgments are reviewed as judgments in jury cases. The judgment presently before this Court of Appeals is neither a workman’s compensation judgment nor a jury judgment.

The case of Stone v. Stonecipher, supra, involved the reviewing of a non-jury judgment in an ordinary tort case and the Court did state that such review was not de novo but was under the “material evidence” rule; which statement seems to be in opposition to all that we have so far said on this subject. The case not only seems to be, but is in opposition to what we have said; but for good reason. The case is a 1928 case. T.C.A. 27—303, which requires a de novo review, that is, a preponderance of evidence review of non-jury cases was enacted in 1929. Therefore, Stone v. Stonecipher has not been the law since 1929.

We have taken the time in this Opinion to bring all this out because there seems to be some confusion or misunderstanding among members of the bar as to the nature of this Court and its scope of review in cases such as this. We hope a better understanding will lessen our load.

We will now consider the defendant’s single Assignment of Error which is to the effect that the evidence preponderates against a finding of delivery to the railroad.

The Hohenberg cotton in question was stored at the Southwestern Warehouse in Galveston, Texas. At the time of the loss Hohenberg owned Southwestern. Hohen-berg ordered the cotton into a boxcar located on the tracks of Southwestern at its warehouse and sealed same. Before the car could be physically picked up by the defendant (actually its agent) the cotton burned.

Galveston is the largest shipping and receiving point for cotton in the nation. From the record it would appear that numerous warehouses are located on the island of Galveston. Consequently, there is a large daily movement of goods on and off the island. Because of the island nature of Galveston and the large rail traffic, it is necessary that agencies assemble all rail traffic from the various warehouses for movement off the island. The Galveston Houston & Henderson Railway Company handles the assembly of boxcars on the island. Stone Forwarding Company handled the paper work, that is, the preparation of bills of lading etc., for the assembly of the cars. The Galveston Houston & Henderson Railway Company is either owned by or is the agent of the defendant Missouri Pacific.

The procedure on the island is for the Galveston Houston & Henderson to deliver in the morning a battery of empty boxcars to a cotton warehouse for loading. The cars are placed on the warehouse tracks next to the loading dock. Removable personnel bridges cross the tracks from loading dock to loading dock and no cars may be delivered to or removed from the warehouse track unless these bridges are raised. The string or battery of cars are loaded by means of loading first the car nearest the warehouse dock or end of the warehouse tracks. Upon the loading of a car it is sealed by the warehouse for the railroad and the Stone Forwarding Company is notified of that fact. Bills of lading etc. are prepared on this information. The loaded car is not immediately removed because the railroad wishes to wait until the end of the day to pick up all loaded cars from the various warehouses at one time in order to assemble a freight train. In addition, the warehouse is not desirous that a loaded car be immediately removed from its tracks, for if it were, it would necessitate the complete stoppage of the loading of other cars as the entire battery of cars would have to be moved out and switched in order that the last car, which is the first loaded car, could be removed and then the remaining unloaded cars again switched onto the tracks of the warehouse. It is easy to perceive the loss of time and resulting extra cost, inefficiency, chaos, and confusion to both the railroad and warehouse if each loaded car was immediately removed. Therefore, as each car is loaded the fact thereof is made known to Stone Forwarding Company, and the paper work commences for the inclusion of that car in the departing train for that day and the bill of lading is delivered by Stone to the railroad and signed by the railroad acknowledging receipt of the car in good order. However, as before stated, a car is not removed from the warehouse track just because it is loaded and a bill of lading is prepared. The car is not in the actual possession of the railroad at the time the bill of lading is signed by the railroad. No car is removed from the tracks of the warehouse until the warehouse “orders out” the car. This is done by the warehouse making a call near the close of each day to the railroad yard office and identifying the cars by numbers that are to be “ordered out” for removal from the warehouse track. When this is done, car numbers and locations are checked with bills of lading and the yard master makes up his train and ascertains the order by which they are to be picked up. This enables the railroad to begin at one end of the island and in an orderly manner assemble its train without hopscotching all over the island. If the warehouse does not orally “order out” a car the railroad does not pick it up even if it has a bill of lading. Correspondingly, if a car is “ordered out” by the warehouse, even if the railroad has no bill of lading, the car will be picked up by the railroad and placed in the railroad yard until a bill of lading arrives. This sometimes happens when the warehouse works late and loads a car after Stone Forwarding has closed for the day.

The car in question burned after it was loaded and sealed and after the bill of lading was prepared and signed by the railroad but before the warehouse “ordered out” the car and, in fact, before the warehouse had loaded the entire battery of cars.

The Trial Judge found that (1) a “calling out” was not necessary to place the railroad in constructive possession of the car; (2) and, even if it were, “it is uncertain from the record whether the subject car might not have been ‘called out’ ” (emphasis ours) and, therefore, (3) the evidence did not overcome the presumption of delivery and possession raised by the bill of lading.

As we view the depositions filed in this cause, the proof is that in the ordinary course of events no car was ever removed from the warehouse tracks unless it was “called out” by the warehouse. One of Southwestern’s witnesses testified that for the 31 years that he had been working cotton, no car was removed from the warehouse track unless it had been “called out”. However, he did testify, as pointed out by the Trial Judge, that if the railroad had wanted just one car it could have come and gotten it. What the railroad could possibly have done and what was done for 31 years are two different things. Even so, the railroad could not come and get a car whenever it wanted one. It would still have to seek the permission of the warehouse and have the warehouse remove the personnel bridges which blocked the track.

It seems to us that all parties considered the car turned over to the railroad when the car was called or ordered out and not before.

Responsibility and liability of a carrier pursuant to the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 20(11) does not attach until there is a delivery. Cain-Sloan Co. v. Louisville & N. R. Co. (1968) 221 Tenn. 70, 424 S.W.2d 787.

There is no complete delivery when something remains for the shipper to do as a condition precedent to the commencement of transportation. While a bill of lading operates both as a receipt and a contract, the receipt clause is not conclusive and may be explained by parol or other evidence. Agar Packing & Provision Co. v. Weldon (1956 W.S.) 42 Tenn.App. 175, 300 S.W.2d 51.

We hold that in this case a calling or ordering out was necessary for possession of the car to pass to the railroad.

As to the issue of whether it was called out, the defendant’s proof is that the car was never called out the day it burned. The best proof to the contrary is a statement from the warehouse foreman who, when asked whether or not he had, in fact, called out the car, said “No, I can’t, I can’t definitely say that I had.” This does not, in our view, contradict the proof of the railroad that there never had been a “calling out”.

When a case is heard entirely upon depositions, the presumption of correctness of the factual findings of the Trial Judge mandated by T.C.A. 27-303 does not apply with the same strictness as it does in cases heard orally where the Trial Judge has the opportunity to view and appraise the witnesses. Kennon v. Commercial Standard Ins. Co. (1963 W.S.) 52 Tenn.App. 521, 376 S.W.2d 703.

We are of the opinion that the proof overcomes the presumption of delivery raised by the bill of lading and that the evidence as a whole preponderates against the judgment below. Therefore, the judgment of the Trial Judge is reversed and judgment will be entered in this Court for the defendant, Missouri Pacific Railroad Company. Costs below and of appeal are adjudged against appellee.

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

MATHERNE and SUMMERS, JJ., concur.


author: SANDERS, Judge.

text:
    BEATY CHEVROLET, INC., Appellant, v. COMPLETE AUTO TRANSIT, INC., Appellee.
    Court of Appeals of Tennessee, Eastern Section.
    March 6, 1979.
    Certiorari Denied by Supreme Court July 2, 1979.

      Wilson S. Ritchie, of Ritchie & Norton, Knoxville, for appellant.
    Andrew Johnson, of Kramer, Johnson, Rayson, McVeigh & Leake, Knoxville, for appellee.
   OPINION

SANDERS, Judge.

The question involved on this appeal is whether or not a common carrier which makes a delivery of goods to the consignee’s premises remains liable as an insurer of the goods until the consignee has had an opportunity to inspect and accept or reject the goods.

The Plaintiff-Appellant, Beaty Chevrolet, Inc., is a Chevrolet dealer in Knoxville. The Defendant-Appellee, Complete Auto Transit, Inc., is a common carrier of automobiles. As pertinent here, the Defendant had a contract with General Motors to transport new automobiles from points in Georgia to points in Tennessee. The Defendant regularly transported automobiles from General Motors in Georgia to the Plaintiff in Knoxville. When vehicles were delivered by the Defendant to the Plaintiff during regular business hours the Plaintiff would inspect the vehicles, sign the waybill and return it to the Defendant’s driver. The Plaintiff and Defendant had an agreement that any time the Defendant had an automobile for delivery to the Plaintiff and the Plaintiff was not open for business, the Defendant would unload the vehicle, park it in front of the service entrance to Plaintiff’s place of business, lock the ear, deposit the keys and waybill in a slot in the service entrance door and continue on its route for the delivery of vehicles to other customers. The slot in the door had been constructed by the Plaintiff for the express purpose of receiving the keys and waybills in this fashion. On the first business day after a delivery was made in this fashion the Plaintiff would inspect the vehicles left on its premises, sign the waybill and mail it to the Defendant.

On June 14, 1975, when the Plaintiff was not open for business the Defendant delivered a new Chevrolet Monte Carlo to the Plaintiff’s place of business and complied with the customary procedure. On Monday morning, June 16, when the Plaintiff opened for business the automobile, the keys and the waybill were missing and have never been located.

The Plaintiff was unaware the automobile had been delivered until about 90 days later when it realized it was being charged on its floor plan account. The Plaintiff sued the Defendant for the value of the automobile on the primary theory a proper delivery of the vehicle was never made to the Plaintiff.

The Chancellor found the issues in favor of the Defendant. Plaintiff has appealed and assigned the action of the Court as error.

It is the insistence of the Plaintiff that as a common carrier the Defendant is an insurer of goods from the time of receipt of the goods until they are delivered to the consignee. It further insists that delivery of vehicles made in the fashion in which this one was made was not completed until it had an opportunity to inspect the vehicle and either accept or reject it. Since it never had an opportunity to inspect the vehicle, delivery was never accomplished.

The Plaintiff relies upon the case of Wayne Knitting Mills v. Delta Motor Lines, 52 Tenn.App. 164, 372 S.W.2d 419 (1962), where the court said, at 422:

“The general rule is that a common carrier of goods is liable as an insurer for loss or damage to such goods with four general exceptions: (1) That the damages were the result of an act of God; (2) that the damages were the result of an act of the public enemy; (3) that the damages were the result of an inherent vice or defect in the goods; and (4) that the damages were the result of an act or default on the part of the shipper of the goods. 9 Am.Jur. 813, ‘Carriers,’ Section 661. A common carrier becomes liable to the shipper for damaged goods by virtue of the contract of carriage and it is not necessary for the shipper to allege or prove negligence of the carrier in order to recover.”

We agree with the Plaintiff the Defendant would be liable for theft or damage of the vehicle after it came into Defendant’s possession and prior to delivery. However, we cannot agree with Plaintiff’s insistence that delivery had not been accomplished.

While a consignee ordinarily has the right of inspection of goods before accepting the shipment, we have been cited to no authority, nor have we found any, to the effect that a carrier remains liable until an inspection is made after delivery, nor have we found any authority to support the contention that delivery cannot be accomplished without a prior inspection. It had been a long-standing custom between the Plaintiff and Defendant for vehicles to be delivered after working hours in the same manner this vehicle was delivered and we hold the Plaintiff will not now be heard to complain.

The Appellee has ably treated the subject of custom and usage between carrier and assignee in its brief, from which we quote. In discussing the case of Pennsylvania Railway Co. v. Naive, 112 Tenn. 239, 79 S.W. 124, which is cited by Appellant, in its brief, the Appellee said:

“The Court, in discussing the matter of usage and custom and the effect thereof, said at page 251 [, 79 S.W. 124] of the official report in the Naive case:
“ ‘This principle is illustrated by the following cases: In Illinois C. R. Co. v. Carter, 165 Ill., 570, 46 N.E., 374, 36 L.R.A., 527, speaking of a custom prevailing at a particular port to waive the rule requiring carriers by water to give notice of the arrival of the goods to the consignee, the court said: “While it is a general rule that a carrier by water is required to give notice of the arrival of the goods to the consignee, it is well settled that such notice may be waived, either by the previous course of dealing between the parties, or by the usual course of business of carriers in the same trade in which the carrier is employed at the locality where the goods are landed, and this whether the usage was known to the shipper or not; the rule being that any person who contracts with another for services in his particular trade is understood to contract with reference to the usage of the trade. The carrier may therefore show, as has been repeatedly held, the usage as to the delivery of the goods by those engaged in the carriage of goods by water in the particular port or at the particular place of delivery, and that he has acted according to it.” ’
“And at page 254 [, 79 S.W. 124]:
“ ‘Indeed, the rule is general that in all contracts as to the subject-matter of which known usages prevail, the parties are held to have proceeded on the tacit assumption of such usages, and to have contracted in reference to them, unless the contrary appears, and the usages form a part of the contract.’
“And at page 260 [, 79 S.W. 124]:
“ ‘It was held in a Pennsylvania case that the rule that a carrier must give notice to the consignee of the arrival of goods at destination is subject to exceptions growing out of special circumstances, and out of customs that have grown up for the mutual advantage of shipper and carrier. [Allam] v. Pa. R. Co., 183 Pa., 174, 38 A., 709, 39. L.R.A., 535.’
“The case of J. H. Dean et a1. v. Vaccaro & Co., 39 Tenn. 488, which also is cited by the appellant, recognized this same principle, saying at page 490:
“ ‘When there is a contract for any particular mode of delivery, that will, of course, govern.’
“Appellant cites the case of Park Nat. Bank v. Goolsby et al., 179 Tenn. 194, 164 S.W.2d 545. That case was an action to recover for plastering work performed by a contractor. There was a question as to the correct way of measuring the plaster work that had been performed and there was a question as to whether the prevailing custom in East Tennessee was controlling. After finding that there was an established custom in the area, the Court said, at page 197, [164 S.W.2d 124]:
“ ‘The next question is whether such a custom is binding on petitioner and constituted a part of the contract, and was, as a matter of law, in the minds of the parties at the time of the execution of the contract.
“ ‘In Charles v. Carter, 96 Tenn., 607, 614, 615, 36 S.W., 396, 397, this court quoted from Bishop on Contracts, section 449, as follows: “Proof of custom or usage known to both parties to a contract, either in fact or presumptively from its long continuance, notorious character, or otherwise, if it is not in conflict with the law or its policy, if it is reasonable, and as to the place, business, or person uniform and universal, will be accepted like the general law, not in contradiction of written stipulations, but as explaining what is indistinct in them, and furnishing the rule where they are silent.” ’ ”
“The effect of custom or usage in the delivery of goods by a carrier is stated in 13 Am.Jur.2d, Carriers, § 407, as follows:
“ ‘Delivery of goods by a common carrier may be governed by custom or usage which is not contrary to specific terms of the contract of transportation, or established rules of law. Accordingly, where the mode of delivery is not specified in the contract of carriage, a delivery by the carrier is sufficient which conforms to the custom of the place of destination, provided such custom has been so long acquiesced in as to be deemed to form a part of the contract.’ ”

When Defendant’s driver parked that automobile in front of the service door and locked it, then placed the keys and waybill in the designated slot the Defendant had surrendered all dominion and control over the vehicle. It had delivered the vehicle at the point designated by the Plaintiff and the delivery was as complete as if the keys and waybill had been placed in the hands of Plaintiff’s employee.

We concur with the findings and conclusions reached by the Chancellor. The assignments of error are overruled. The decree of the Chancellor is affirmed and the cost of this appeal is taxed to the Appellant.

PARROTT, P. J., and FRANKS, J., concur.


text:
    COMMERCIAL REFRIGERATION, INC., Appellant, v. REFRIGERATION PRODUCTS CO., Appellee, and Silencer Corporation. ENGINEERED BUILDING INC., Appellant, v. REFRIGERATION PRODUCTS CO., Appellee, and Silencer Corporation.
    Court of Appeals of Tennessee, Eastern Section.
    March 29, 1979.
    Certiorari Denied by Supreme Court Aug. 6, 1979.

      John L. Kiener, of Cantor & Kiener, Johnson City, for Commercial Refrigeration, Inc.
    Olen G. Haynes and Jean A. Stanley, of Hicks, Arnold & Haynes, Johnson City, for Engineered Buildings, Inc.
    James E. Brading II, with Herndon, Coleman, Brading & McKee, Johnson City, for Refrigeration Products Co.
    S. Morris Hadden and Steven C. Rose, of Hunter, Smith, Davis, Norris, Treadway & Hadden, Kingsport, for Refrigeration Products Co.
   OPINION

SANDERS, Judge.

This appeal involves the question of liability of a manufacturer’s representative in a products liability suit.

The Plaintiff-Appellant, Engineered Buildings, Inc., was the prime contractor for the construction of a large refrigerated warehouse for Industrial Jobbers, Inc., at Gray, Tennessee. The Plaintiff-Appellant, Commercial Refrigeration, Inc., was the subcontractor for the installation of the necessary refrigeration for the building. Industrial Jobbers, Inc., also employed the services of Mr. McCoy, who was a consulting engineer with expertise in food refrigeration. The duty of Mr. McCoy was to assist and advise with the owner and contractors as needed during the construction of the building.

The conventional method for mounting freezing units on cold storage buildings is known as “saddle mounts” on the side of the building to be refrigerated. However, because of a desire for future expansion on the building involved, Mr. McCoy conceived the idea of departing from the conventional method of mounting the freezing units and going to a unique and untried method of mounting self-contained units on the roof of the building.

He contacted the Defendant-Appellee, Refrigeration Products Co., which is a manufacturers’ representative, for the purpose of having the Defendant try to find a company which would manufacture the type of equipment desired. Appellee, in turn, contacted the Defendant, Silencer Corporation, which was engaged in manufacturing refrigeration equipment.

A conference was then held among Mr. McCoy, Mr. Stanley, President of Plaintiff Commercial Refrigeration, Inc., Mr. Haynes, President of Defendant Silencer Corporation, and Mr. Leapley, President of Defendant Refrigeration Products Co. At this meeting Mr. McCoy told the Defendants in detail what his requirements would be for freezing capacity, etc., of the units to be manufactured. Mr. Haynes advised he was sure he could produce the units.

The details as to the amount charged by Defendant Silencer for the units and the commission received by Defendant Refrigeration Products Co., as manufacturer’s agent, are not explained in the record but exhibits indicate Silencer was to receive $42,100. To this amount Defendant Refrigeration Products Co. added $2,900 and submitted a bid to Commercial Refrigeration, Inc., for $45,000. Commercial Refrigeration, in turn, added a substantial amount to the bid and submitted a bid to Plaintiff Engineered Buildings, Inc., for $84,003.

The units were delivered to the job site and installed but, due to defective workmanship by Defendant Silencer, never worked properly. It was necessary to remove the units and install the conventional wall-mounted units.

The Plaintiffs each filed suit against the Defendants. Each Plaintiff relied on breach of implied warranty. Plaintiff Engineered Buildings, Inc., also alleged breach of express warranty and tortious misrepresentation.

The cases were consolidated for trial and tried before the judge without a jury. The Court found the issues in favor of both Plaintiffs and against the Defendant, Silencer Corporation. That case has not been appealed and is not before us for consideration. However, the Court found the issues in favor of Defendant Refrigeration Products Co. and the Plaintiffs have both appealed and assigned error.

The thrust of the Plaintiffs’ assignments of error is that the Court failed to find the Defendant liable under T.C.A. § 47-2-315 for implied warranty.

After the trial of the case the Court filed a detailed and comprehensive finding of fact and conclusions of law. Because there was a direct conflict in the testimony of one of the witnesses for one of the Plaintiffs and one of the witnesses for one of the Defendants and because the Trial Court is in a much better position to pass upon the credibility of these witnesses than this court, we adopt a substantial portion of his findings of fact.

The Court found the Defendant in this case, as a manufacturer’s representative, acted “merely as a conduit to merely bring together manufacturer and customer.” The Court further said: “This Court has very carefully read this record and there is no evidence that any party to this litigation relied upon the manufacturer’s representative’s skill or judgment to select and furnish the freezer units in question, particularly before any contract was let or building started. True, there was discussion about the rooftop type freezer unit as distinguished from the wall mounted unit. It is also true that after the units were installed and trouble developed, the prime contractor went back to the man with whom he’d dealt and paid his money, the manufacturer’s representative, but all of this is after the fact. There is no testimony that anyone relied upon the representative’s skill and judgment, as contemplated by the implied warranty statute (T.C.A. 47-2-315) in the initial selection. In fact, testimony is quite to the contrary. Plaintiff Engineered Buildings, Incorporated, via its president, Mr. Stultz, knew the units were to be manufactured by Silencer Corporation in Atlanta; he knew and relied upon the reputation and skill of the consulting engineer employed by the owner; he testifies that Mr. Leapley never guaranteed that the units would bring the temperature down to -10° fahr-enheit, a prime consideration in selection of these units; he was aware that both Mr. Stanley, his subcontractor charged with responsibility for inspection and/or installation of the units visited the Silencer Corporation plant in Atlanta during construction of the units; and he had confidence in the skill of Mr. Stanley to do this.

“In the opinion of this Court, these facts preclude the imposition of any liability under an implied warranty theory of fitness for a particular purpose insofar as plaintiff Engineered Buildings, Incorporated, is concerned.

“Insofar as plaintiff Commercial Refrigeration, Inc., is concerned, it would appear to this Court that it has even less footing upon which to predicate liability against the manufacturer’s representative. Its president, Mr. Stanley, made a trip to the Silencer Corporation plant in Atlanta. One of the units had been completed and was in operation while the other four units were in various stages of completion. By coincidence, Mr. McCoy, the owner’s consulting engineer, was also present at the plant at the same time. It was his specific job to supervise the design created by the manufacturer, particularly as the same applied to refrigeration. Each of these refrigeration experts made an inspection of one completed and operational unit as well as an opportunity to examine the uncompleted units as fully as they might have desired.

“In the opinion of this Court, liability on the manufacturer’s representative, Refrigeration Products Company, is precluded under Section 47-2-315 not only by reason of the fact that the parties were not relying upon the skill and judgment of anyone other than the manufacturer, Silencer Corporation, but also under Section 47-2-316 in that each of the parties had ample opportunity to, and probably did, examine the goods during this visit to the Silencer Corporation plant. Too, testimony reflects that it is the usage of the trade that a manufacturer’s representative does not personally give any guarantee or warranty.

“Since the ultimate cause of the failure of the units to do the job required was later determined to be air infiltration, surely an inspection by two refrigeration experts would have, or at least, should have revealed this fact during the manufacturing process, particularly where one of the units had been completed and was actually in operation.”

In the case of Cooper Paintings & Coatings, Inc. v. SCM Corporation, 62 Tenn.App. 13, 457 S.W.2d 864, the court held a manufacturer’s representative liable for breach of warranty. However, as pointed out by the Trial Court, the facts in that case are distinguishable from those in the case at bar. In the Cooper case the court found the proof was sufficient for the jury to have found the defendant was a special agent with authority to make warranties of the product and the jury could have inferred such warranties were made.

T.C.A. § 47-2-315 provides: “IMPLIED WARRANTY — FITNESS FOR PARTICULAR PURPOSE. — Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.”

Since the proof supports the findings by the Trial Court that the Defendant was only a conduit through which the manufacturer and Plaintiffs were brought together and Plaintiffs did not rely upon Defendant’s skill or judgment to select or furnish suitable goods, we find no error in the judgment of the Court.

The assignments of error are overruled. The judgment of the Court is affirmed and the cost of this appeal is taxed to the Appellants.

PARROTT, P.J., and FRANKS, J., concur.


author: PARROTT, Presiding Judge.

text:
    Earnest Douglas PURDY, Appellee, v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY, Appellant.
    Court of Appeals of Tennessee, Eastern Section.
    May 25, 1979.
    Certiorari Denied by Supreme Court Aug. 27, 1979.

      Higgins, Biddle & Chester, Athens, for appellant.
    Carter, Reid, Harrod & Allen, Athens, for appellee.
   OPINION

PARROTT, Presiding Judge.

Tennessee Farmers Mutual Insurance Company has appealed from the circuit judge’s (sitting without a jury) finding its homeowners policy issued to Earnest Douglas Purdy afforded coverage for four wheels and tires stolen from the insured’s yard.

The single assignment insists the circuit judge erred in holding the insurance company liable under the homeowner’s policy for the theft loss of the four tires and wheels.

There is little or no dispute as to the facts. It is stipulated the policy was in force and contained a $100.00 deductible clause. It is further stipulated that the value of the tires and wheels was $396.20. On Friday, April 14, Earnest Douglas Purdy purchased four wheels and new tires which were put on his wife’s car. The tires and wheels removed from the car were placed approximately four feet from his carport and were stolen on the following Saturday night or Sunday morning.

The insurance company’s denial of coverage is based on the insuring clause of the policy and an exclusion. The insuring clause contains the following language:

This policy covers unscheduled personal property usual or incidental to the occupancy of the premises as a dwelling and owned or used by an Insured, while on the'described premises . . ..” (Emphasis supplied.)

The exclusionary clause is as follows:

This coverage excludes: ... (2) motorized vehicles, except such vehicles pertaining to the service of the premises and not licensed for road use. (Emphasis supplied.)

The insurance company argues that the phrase “usual or incidental to the occupancy of the premises as a dwelling” does not and never was intended to include such things as wheels and tires. It is argued that “usual” means items at the premises such as stoves, chairs, beds, clothing and other furniture, and that it would be unusual to find that automobile tires and wheels are usual or incidental to the occupancy of a dwelling.

American Heritage Dictionary defines “usual” as: “Such as is commonly or frequently encountered, experienced, observed, or used; ordinary; normal.” Incidental is defined as: “Occurring as a fortuitous or minor concomitant.”

It is fundamental that the terms of a contract of insurance are to be construed according to their plain, ordinary, and popular sense unless the words have acquired a technical sense by commercial usage. Lewellyn v. State Farm Mutual Auto. Ins. Co., 222 Tenn. 542, 438 S.W.2d 741 (1969); Swindler v. St. Paul Fire & Marine Ins. Co., 223 Tenn. 304, 444 S.W.2d 147 (1969).

Further, it is well settled that if the language of the policy is ambiguous, the policy must be construed in favor of the insured and against the insurer. However, courts are not permitted to create an ambiguity where none exists. Brown v. Tenn. Auto. Ins. Co., 192 Tenn. 60, 237 S.W.2d 553 (1951); American Employers Ins. Co. v. Knox-Tenn Equipment Co. et al., 52 Tenn.App. 643, 377 S.W.2d 573 (1963).

To us the words “usual” and “incidental” used in the insuring clause are words which include many, many items. Appellant argues that the use of the words “usual” and “incidental” to a dwelling are plain language and express an intent to limit coverage of personal property. We do not agree with this insistence. The insurance company’s usage of these words does not appear to us to be an attempt to limit coverage but has afforded a very broad coverage. It is true that automobile wheels and tires are not items usual or incidental to the occupancy of a premise as are stoves, chairs, beds, clothing, etc., but automobile tires and wheels and other automobile accessories are commonly found stored on the premises of a dwelling. Certainly, automobiles and their accessories are items that are usually used in connection with a dwelling. It is our opinion that the language used in the insuring clause is broad enough to encompass items such as automobile wheels and tires stored at or in the dwelling.

The insurance company argues that if the wheels and tires are to be included in the insurance clause, then coverage is denied under the exclusionary clause. It is claimed that the language specifically excludes motorized vehicles and, by implication, any part thereof is excluded. We cannot agree with this contention. We do agree that accessories or component parts attached to a motorized vehicle are excluded, but once these accessories or parts are removed from the vehicle, the clause does not exclude coverage. The insurance company could have easily drafted the exclusionary clause so as to include not only motor vehicles but any part thereof attached or unattached. Like ambiguities, exclusionary clauses in insurance policies or any provision limiting liability of the insurer is construed most strongly against the insurer. Travelers Ins. Co. v. Aetna Cas. & Surety Co., 491 S.W.2d 363 (Tenn.1973); Dressler v. State Farm Mutual Auto. Ins. Co., 52 Tenn.App. 514, 376 S.W.2d 700 (1963).

For the reasons given, the judgment entered below is affirmed with costs of this appeal taxed to appellant.

SANDERS and FRANKS, JJ., concur.