author: HARBISON, Justice.

text:
    GENERAL ELECTRIC SUPPLY COMPANY, Petitioner-Plaintiff, v. ARLEN REALTY & DEVELOPMENT CORPORATION, Respondent-Defendant.
    Supreme Court of Tennessee.
    Feb. 7, 1977.

      David B. Kesler, Strang, Fletcher, Carri-ger, Walker, Hodge & Smith, Chattanooga, for petitioner-plaintiff.
    David A. Dycus, Shumaeker, Thompson & Dycus, Miller, Martin, Hitching, Tipton, Lenihan & Waterhouse, Chattanooga, for respondent-defendant.
   OPINION

HARBISON, Justice.

This action was brought by petitioner to enforce a materialman’s lien upon real property owned by respondent. There is no question but that timely notice of the claim of lien was given to the property owner and filed in the Register’s Office pursuant to the requirements of T.C.A. §§ 64-1115, 1117. There is also no question but that suit was timely instituted by the filing of a complaint within ninety days from the date of said notice, also as required by T.C.A. § 64-1115. Regular process was issued for the property owner, the contractor and the mortgagee, these being issued on the ninetieth day after the date of notice, and on that same day a writ of attachment for the real property was also duly issued by the clerk, without fiat from the Chancellor, as authorized by T.C.A. § 64-1126(3).

The writ of attachment was not receipted for by the sheriff or his deputy, however, nor was it actually levied until five days later, this being the ninety-fifth day from the date of the lien notice. The sole issue presented on this appeal is whether or not under these circumstances the claim of lien was preserved by the filing of suit or whether it expired before the levy of the writ of attachment.

The Chancellor held that since the suit had been brought and the writ of attachment issued within the statutory period, the delayed levy of the writ of attachment upon the land was not fatal to the lien claim. He accordingly overruled the landowner’s motion to dismiss, but allowed a discretionary appeal. The Court of Appeals reversed, and held that the lien was lost because the attachment was not levied within ninety days from the date of notice, construing this to be mandatory under the terms of T.C.A. §§ 64 — 1115, 1126, and relying upon the case of Knoxville Structural Steel Co. v. Jones, 46 Tenn.App. 518, 330 S.W.2d 559 (1959). We granted certiorari to give further consideration to this issue.

There is no question but that the Court of Appeals did hold that both the issuance and the levy of attachment within the ninety-day period were mandatory in the Knox ville Structural Steel Co. case, supra. In so doing it construed most strictly the statutory provisions involved, because in actuality there is nothing in the statutes themselves which expressly refers to the date of the levy of the writ of attachment.

The two statutes, in pertinent part, are as follows:

“. . . and said lien shall continue for a period of ninety (90) days from the date of said notice in favor of such subcontractor, journeyman, furnisher, mechanic, or laborer, and until final termination of any suit for enforcement brought within that period.” T.C.A. § 64-1115.
“Liens under §§ 64-1101 — 64-1142 shall be enforced by attachment only, in manner following:
(1) Where the plaintiff or complainant lienor has a contract with the owner, the lien shall be enforced by attachment upon petition at law or bill in equity, filed under oath, setting forth the facts, describing the property, and making the necessary parties defendant; or before a justice of the peace, where the amount of the claim is within his jurisdiction, the affidavit for the writ to contain such recitals.
(2) Where there is no such contract, by attachment in court of law or equity in like manner; or before a justice of the peace, having jurisdiction, based upon like affidavit, the writ of attachment to be accompanied by a warrant for the sum claimed, to be served upon the owner and may within the discretion of the plaintiff or complainant be served upon the contractor, or subcontractor in any degree, with whom the complainant is in contractual relation, but the owner shall have the right to make said contractor or subcontractor a defendant by cross-action or cross-bill as is otherwise provided by law.
“(3) The clerk of the court in which the suit is brought may issue the attachment writ, no fiat of a judge or chancellor being requisite.” T.C.A. § 64-1126.

It will be noted that T.C.A. § 64-1126 does require that materialmen’s liens, such as that here under consideration, shall be enforced by attachment only. It prescribes the method of filing suit and, in subsection 2, describes the necessary parties. There is no reference whatever in the section, however, as to any time limitation. The time for filing suit is prescribed in T.C.A. § 64-1115, which only refers to “any suit for enforcement brought within” ninety days after the lien notice.

The issue, then, finally must turn upon the definition of filing suit, or, as phrased in the statute, “suit . . . brought”.

In the Knoxville Structural Steel case, supra, the Court emphasized the well-settled rule that strict compliance with statutory provisions is required in order to entitle a claimant to the remedy and the special priority afforded by the lien statutes. It held that the property sought to be subjected was not brought within the custody of the court until the actual levy of the writ of attachment.

In that case reliance was placed upon language contained in the opinion of Ragon v. Howard, 97 Tenn. 334, 347, 37 S.W. 136 (1896), dealing with similar provisions where the lien claim arises out of a direct contract with the landowner, T.C.A. § 64-1106.

In the later case of Warner v. A. H. Yates & Co., 118 Tenn. 548, 102 S.W. 92 (1907), however, the Court dealt at some length with the nature of the attachment provided for in the lien statutes. In that case it was held that the attachment is neither an original nor an ancillary attachment within the meaning of those terms under the general statutes pertaining to attachments, T.C.A. §§ 23-601 et seq. Rather, the writ of attachment in a suit to enforce a mechanic’s lien is a special or “extraordinary” process, “auxiliary in its nature and collateral to the original or leading process by which a suit is commenced.” 118 Tenn. at 552-553, 102 S.W. at 93.

In that case, which was begun in a Justice of the Peace court, the attachment was issued and levied upon the land within the statutory period, but no summons or “warrant”, by which suits are commenced in justice courts, was issued for the landowner until after expiration of the ninety-day period. Under those circumstances it was held that the suit had not been timely brought, despite the issuance and the actual levy of the writ of attachment. It is apparent from this decision that the levy of the writ of attachment was not considered to be determinative in the definition of the bringing of suit under the earlier versions of the lien statutes. Rather the commencing of the action in the regular manner and within the statutory period, was deemed critical, and this had not been done.

The nature of the writ of attachment was also discussed in the case of Fischer Lime & Cement Co. v. Kaucher, 164 Tenn. 657, 51 S.W.2d 492 (1932). In that case the lien claimant had contracted with a corporation, and after completion of its work served statutory notice upon that company. It then filed suit within ninety days and there was no question but that the property had been duly attached. The original owner of the property, however, had conveyed it to another corporation in the interim, and statutory notice was not given to this new corporation, nor was it joined as a party defendant to the action until after expiration of ninety days from the date of the notice given to the original owner. Under these circumstances this Court, reversing the Court of Appeals, held that the lien could not be enforced. The Court held that the record owner of the property must be joined as a party defendant to the lien suit, and that failure to give him statutory notice and to bring suit against him within the statutory period was fatal — despite the fact that the property had been brought into the custody of the court by levy of the writ of attachment. Speaking of the attachment, the Court said:

“As the remedy by attachment is administered in Tennessee, it is not a proceeding strictly in rem in any case. Seizure of the property is not sufficient notice to the owner. It is always necessary to make the owner of the property a party to the suit in which that property is sought to be attached.” 164 Tenn. at 663, 51 S.W.2d at 494.

From these cases, it appears to us that it is the proper commencement of the lien suit, rather than service of process or levy of an attachment writ, which is critical to the preserving and enforcing of a materi-alman’s lien. Because of the unusual relief afforded to a lien claimant, and the effect which a materialman’s lien may have upon rights of third parties, the courts have properly construed the lien statutes strictly, almost rigorously, but in our opinion the statutes should not be construed so harshly as to frustrate the legislative purpose in authorizing such liens.

In the recent case of Eatherly Construction Co. v. DeBoer Construction Co., 543 S.W.2d 333 (Tenn.1976), this Court adhered to a strict construction of the lien statutes, and particularly held that lien notices must be given, lien suits must be filed, and attachments must be obtained as specified by statute. That case did not involve the date of levy, however, and was consistent with many earlier cases to the effect that a lien may not be perfected or enforced when no attachment is obtained pursuant to a suit filed within the statutory period. See Dollman v. Collier, 92 Tenn. 660, 22 S.W. 741 (1893).

We have no disposition to depart from a strict construction of the statutes, but we are reluctant to see engrafted upon them any further or greater technicalities than their terms contain. We are of the opinion that when a lien claimant has timely filed his complaint with the clerk, praying for writ of attachment, and when that writ has actually been issued by the clerk to the sheriff within the time period pre-scribed in T.C.A. § 64-1115, then the suit has been “brought” within the meaning of the statute, and in compliance therewith, even though the sheriff does not go through the process of making a “levy” upon the real property until after expiration of the ninety-day period.

Although in no way mandated by them, we believe that this result is consonant with the spirit and the intention of the Rules of Civil Procedure. These seek to prevent parties from having their claims time-barred through inadvertent actions of a court clerk or a sheriff’s department, over neither of whom the litigants or counsel have control.

Rule 3 of the Rules of Civil Procedure provides:

“All civil actions are commenced by filing a complaint with the Court. An action is commenced within the meaning of any statute of limitations upon such filing of a complaint, whether process be returned served or unserved. . . . ”

Rule 4 requires that the clerk shall “forthwith” issue the required summons upon the filing of the complaint. In the instant case this was done, and the clerk issued both the summons and the special writ of attachment which were duly prayed for in the complaint. The reason for the delay of the sheriff, or his deputy, in taking receipt of the writ and making the actual levy upon the real property does not appear. Notice of the lien claim had already been filed in the Register’s Office and served on the landowner, however, and the suit had been timely filed in the clerk’s office. We can conceive of no prejudice to the landowner or any third party under these circumstances and find no reason for engraft-ing upon the language of T.C.A. § 64-1115 a further requirement that the actual levy of the writ of attachment must occur on or before the ninetieth day from the date of the lien notice. There is no doubt that the General Assembly could so specify, if it felt that any useful purpose would be served by such requirement, but we believe that both the landowner and third parties are given ample notification of the lien claim when timely statutory notice has been filed in the Register’s Office, the landowner served therewith and the complaint duly filed with the clerk of the court.

Of course, if the lien claimant or his counsel should fail to seek proper writs of attachment, should request delay in service of same, or should in some other manner be responsible for any substantial delay, a different result might obtain. Neither counsel nor the litigants, however, have control over or direct responsibility for the acts of the public officials who receive and serve process under existing statutes. Sheriffs have thirty days within which to return ordinary process under Rule 4, and otherwise must return process as required by orders of the court or by the terms of the writ itself. As we have previously noted in the present case, the writ of attachment was issued on the ninetieth day after the lien notice but the terms of the writ did not actually require a “return” until the beginning of the next term of the chancery court, more than three weeks from the issue date.

After careful consideration, we are of the opinion that the rule laid down in Knoxville Structural Steel Co. v. Jones, 46 Tenn.App. 518, 330 S.W.2d 559 (1959), is unduly strict and that it imposes a requirement not specifically contained in the lien statutes. Insofar as it requires levy of the attachment on land to be made within ninety days after the lien notice, it is overruled. In making this decision, however, the Court does not intend any drastic or substantial departure from the strict construction and application of the lien statutes heretofore laid down in the reported cases.

It results that the judgment of the Court of Appeals is reversed, and the cause is remanded to the trial court for further proceedings consistent herewith. At this point, however, we note that the trial judge, in overruling the motion to dismiss filed by the landowner, ordered a lien established and directed the land sold in satisfaction thereof. This was done although the landowner has never filed an answer to the merits, insofar as the record before us reveals, and there has never been a trial. There is a general reference in the final order to a “stipulation of facts”, but no stipulation with the landowner has been filed. The trial court gave final judgment to the lien claimant, but reserved for future trial certain issues relating to a claim of quantum meruit, and then apparently undertook to allow a discretionary appeal from his order overruling the motion to dismiss. This is an unusual procedure. Upon remand the landowner should be given an opportunity to file an answer to the merits of the lien claim and to have a trial upon any issues pertinent thereto before entry of a judgment imposing a lien and directing sale of the property.

Costs incident to the appeal are taxed to the respondent. All other costs will abide the results in the trial court.

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

      . The writ bore a “return” date for late the following month, the third Monday in August, so that the sheriff was not delinquent in his duty in receiving and levying it on July 30.

      . Under the general law of attachments, at least prior to the 1967 repeal of T.C.A. § 20-302, “the filing of an attachment bill in chancery” created a lien Us pendens on property, holding the property until later levy of the attachment. T.C.A. § 23-635. Transfers subsequent to the filing date — not just the levy date — were made voidable. For effect of the 1967 legislation, see Land Developers, Inc. v. Maxwell, 537 S.W.2d 904, 916-917 (Tenn.1976).

      . Rule 64 expressly provides that remedies for seizure of persons or property in civil actions, including attachments, are to be available “under the circumstances and in the manner provided by law.” The Rules, therefore, did not specifically deal with the procedures here under consideration.

      . It should be noted that in General Sessions Court proceedings, actions are still “commenced” by “suing out” process rather than filing a complaint, T.C.A. § 16-1135. In those courts litigants have to assume some responsibility for seeing that this is timely accomplished, much like the older practice in circuit court, prior to adoption of the civil rules.


source: Caselaw Access Project

license: Public Domain

text:
    U. S. PIPE & FOUNDRY COMPANY and Harlan Mathews, Treasurer of the State of Tennessee and Custodian of the Second Injury Fund, Appellants-Defendants, v. John T. CARAWAY, Appellee-Plaintiff.
    Supreme Court of Tennessee, Eastern Division.
    Feb. 7, 1977.

      Phillip A. Fleissner, Chambliss, Bahner, Crutchfield, Gaston & Irvine, Chattanooga, C. Hayes Cooney, Asst. Atty. Gen., for appellants-defendants; R. A. Ashley, Jr., Atty. Gen., of counsel.
    Ralph E. Vineyard, Chattanooga, for ap-pellee-plaintiff.
   OPINION

HARBISON, Justice.

In this workmen’s compensation case, the employee was found by the Chancellor to be totally and permanently disabled as the combined result of an industrial injury sustained on March 4, 1974 and a pre-existing congenital condition in his lower abdomen which had been the subject of repeated surgical procedures for hernia repair. The award was apportioned between the employer and The Second Injury Fund. Both the employer and the Custodian of The Second Injury Fund have appealed, raising separate issues.

The employee had worked for appellant U. S. Pipe & Foundry Company, and its predecessor, since about 1950. He has limited formal education, and is barely literate. He had operated an automatic pipe machine for eighteen or nineteen years prior to the accident which occurred on March 4, 1974. On that date his right hand became caught in the machinery when he was attempting to remove broken pieces of pipe therefrom.

There can be no question from an examination of the medical evidence in the record that the injury to the right hand and wrist of appellee was severe and painful. Initial surgical procedures were required, and thereafter a number of attempts were made to relieve intense pain in the hand, wrist and forearm by neurosurgery and injections of anesthetics. Dr. Thomas W. Currey, an orthopedic specialist, attended the appellee and saw him at regular intervals from the date of the accident through May 9, 1975, a period of some fourteen months. He thereafter saw appellee in 1976 and hospitalized him from February 16 through March 5, when efforts were made to relieve the appellee’s severe and chronic pain through nerve blocks or injections of anesthetics in his neck and shoulder. Dr. Currey had originally expressed the opinion that appellee would retain thirty percent permanent partial disability to the right arm, but after his last examination of ap-pellee on March 18, 1976 he felt that appel-lee retained forty-five percent permanent impairment to the arm. On the date of this physician’s last examination, appellee continued to have loss of strength in his grip and a marked tremor in his hand, as well as severe and persistent pain. The doctor stated that he did not believe that appellee could resume the performance of physical labor with the degree and extent of pain which had been manifested, and he knew of no further medical or surgical procedures to recommend for alleviation of the condition. He testified positively that appellee could not use his arm in any heavy physical labor.

Because of the persistent severe pain in his hand and right index finger, appellant independently consulted Dr. George M. Stevens of Oak Ridge, Tennessee, who attempted a surgical procedure to permit a greater range of motion in the injured finger. Dr. Stevens was of the opinion that appellee retained seventy-five percent permanent partial disability to the right index finger, or twenty percent disability to the hand. He did not attempt to evaluate any injury to the wrist or any other neurological problems associated with the injury, but confined his treatment to the index finger.

The appellee himself testified as to the very limited use which he could make of his right hand and arm and, of course, he was seen and observed by the Chancellor. After consideration of all of the evidence, both medical and lay, the Chancellor awarded appellee eighty percent permanent partial disability to the right arm, together with temporary total disability benefits and medical expenses.

The employer has filed a single assignment of error, to the effect that there is no material evidence to support any award based on a greater disability than that shown in the expert medical testimony. The employer insists that the Chancellor should have limited the award to forty-five percent permanent partial disability of the right arm, since this was the maximum disability rating given by any of the medical witnesses based upon the March 4, 1974 industrial accident.

It is the insistence of the employer that in the case of a scheduled injury, the trial court must make an award in accordance with the schedule contained in T.C.A. § 50-1007(c). It insists that when there is partial loss of use of a scheduled member, the award is measured by “the extent of injury” to the particular member, as specified in the statute. It is the insistence of the employer that loss of income or earning capacity or “industrial disability” are not to be considered, and that the trial court must be guided solely and alone by the ratings given by expert medical witnesses.

We are unable to accept this contention of the employer, and do not find it to be supported either by statutory language or by the reported cases. It is true that in many of the reported decisions, awards for scheduled injuries have been based entirely upon expert testimony, and disability ratings have been frequently fixed within the range of estimates of medical witnesses. We do not find, either in the statute or in the cases, a mandatory requirement that the trial judge fix permanent partial loss of use of a scheduled member solely with reference to expert testimony.

When, as in the present case, there are differing evaluations given by expert witnesses, and when the trial judge receives lay testimony and has the opportunity to see and examine the injured claimant, in our opinion he must perform essentially the same judicial function as when he evaluates permanent partial disability to the body as a whole. That is, he must take into account all of the testimony before him. Permanency of course, must be established in these cases, as in all others, by expert medical testimony except in the most obvious eases, such as the amputation of a member. The determination of “the extent of injury”, as phrased in the statute, or the extent of permanent partial loss of use of a scheduled member is to be determined in the same manner and by essentially the same criteria as any other case of permanent partial disability. It is true, of course, that since 1963 loss of earning capacity and wage differentials are no longer the basic criteria for determining permanent partial disability in the case of unscheduled injuries, any more than they are criteria in the case of injury to scheduled members.

The employer recognizes that in the case of Pulaski Rubber Co. v. Rolin, 481 S.W.2d 369 (Tenn.1972), this Court, in a case of scheduled injury, sustained an award of permanent partial disability in excess of the disability rating given by medical experts. Appellant disagrees with that decision, and contends that it represents an aberration or a departure from previously decided eases. We do not so consider it, and find numerous cases in which awards greater than those given by examining physicians were sustained for injuries to scheduled members. See, e.g., Eaton Corp. v. Quillen, 527 S.W.2d 74 (Tenn.1975); Davis Blasting Co. v. Roberts, 517 S.W.2d 5 (Tenn.1974); Lambert Bros. v. Dishner, 212 Tenn. 697, 372 S.W.2d 166 (1963).

It is clear from an examination of the record in this case that the employee has sustained a severe and permanent injury to his right hand and arm, and we are of the opinion that there is material evidence to support the determination of the Chancellor that his disability should be fixed at eighty percent, rather than the lower ratings stated in the expert opinions. The assignment of error filed on behalf of the employer is overruled.

On this appeal neither the employer nor the Custodian of the Second Injury Fund questions the finding by the Chancellor that the appellee is totally and permanently disabled within the meaning of the workmen’s compensation law as the result of the industrial injury sustained on March 4, 1974 and the pre-existing condition from which appellee admittedly suffered. The single assignment of error made on behalf of the Custodian is based upon a 1973 amendment to the statutory provisions governing the Second Injury Fund. This amendment to T.C.A. § 50-1027 was contained in Section 10 of Chapter 379 of the Public Acts of 1973, and is as follows:

“. . . and the employer must establish by written records that the employer had knowledge of the permanent and pre-existing physical impairment at the time the employee was hired or at the time the employee was retained in employment after the employer acquired such knowledge but in all cases prior to the subsequent injury. In determining the percentage of disability for which the second injury fund shall be liable, no physical impairment shall be considered unless such impairment was within the knowledge of the employer as prescribed above.”

It is insisted on behalf of the Custodian that the employer failed to establish by written records its knowledge of the employee’s impairment prior to March 4, 1974, and that the employer’s records failed to reveal that the employee did suffer from a previous permanent partial disability.

Based upon our examination of the record, we are not able to agree with the contentions of the Custodian. Prior to the 1973 amendment, judicial decisions had laid down a requirement that an employer must have knowledge of the employee’s physical impairment either at the time of hiring or at some time prior to the second injury which resulted in total permanent disability. See Strong v. Insurance Company of North America, 490 S.W.2d 162 (Tenn.1973); E. I. duPont v. Friar, 218 Tenn. 554, 404 S.W.2d 518 (1966). The- 1973 statutory amendment strengthened this rule and requires that such knowledge by the employer be established “by written records”.

The statute does not specify the nature or type of records which are sufficient to meet its requirements. In the present case both the employee and the Personnel Director of the employer testified that the employee had had frequent operations for hernia over a period of more than twenty years, and that the employer was fully apprised of this fact. Expenses incident to these operations had been paid in some instances by workmen’s compensation and in other instances from other insurance policies carried by the employer. The Personnel Director, Mr. Wooten, filed as an exhibit to his testimony a portion of the records contained in the personnel file of the employee. Among these was a bill from Dr. J. Paul Johnson, dated August 24, 1950 for surgical procedures performed on June 24,1950 for repair of the right inguinal ring. There is also included a hospital bill for the period June 23 through July 5, 1950. An insurance claim form for surgical expenses incident to repair of the left inguinal hernia during the period August 9, through August 17, 1972 was also filed. Contained in the file was a letter written in 1950, making reference to the June 1950 herniotomy, and there is a report from Dr. Harry A. Stone dated November 16, 1971 which states in part:

“Incidentally, this man has had three hernia repairs on the left. He has an atrophic painful left testicle and probably has a recurrence now . . . . He has an atrophic tender left testicle. He has multiple scars in the left inguinal area and a weak place when he coughs and strains. There is pain to flexion of the thighs on the abdomen and exquisite pain to straighten leg raising on the left.”

Also among the personnel records filed was a card summarizing the hospital medical and surgical claims of the employee from 1967 through 1972. Among the numerous entries on this card are references to hernia repair in January 1967, in June 1967 and in August 1972.

As discussed in the cases heretofore cited, the purpose for the creation and maintenance of the Second Injury Fund was to encourage employers to hire and retain in their employment handicapped persons. Consistent with and in furtherance of this purpose is the requirement that the employer have actual knowledge of a permanent impairment or handicap of the employee either at the time of hiring or prior to a second injury which culminates in total permanent disability. The requirement of actual knowledge, now strengthened by the statutory requirement of written records, helps to insure that the Second Injury Fund serves its intended purpose, and at the same time tends to protect the Fund from claims which may be spurious or collusive, in which “knowledge” of a pre-existing injury might first be asserted by the employer after the occurrence of the subsequent injury.

We are of the opinion that the requirement of written records is a reasonable one, but it should also be fairly and reasonably interpreted. In the present case there is no claim of collusion, and, as presented to this Court, there is no question but that the employee did in fact suffer from a pre-ex-isting permanent partial disability which would entitle him to a recovery from the Second Injury Fund when he sustained a second scheduled injury resulting in total permanent disability.

The written records which have been filed fully corroborate the oral testimony of the Personnel Director that the employer was aware of the handicaps under which the appellee labored and which persisted throughout the many years when he was retained in employment. It is true that the words “permanent and pre-existing physical impairment” do not appear in any of the written records filed as exhibits, but there is ample reference to the repeated surgical procedures to which the employee was subjected, and certainly no later than November 19, 1971 the employer was advised by a written report from Dr. Stone that the employee had weakness in the inguinal area, was subject to recurrent hernia and “probably has a recurrence now.”

We are of the opinion that when it can fairly and reasonably be inferred from such records as are produced in evidence that the employer did have knowledge of the physical handicap or impairment of the employee before occurrence of the injury which activates the Second Injury Fund claim, then the requirements of T.C.A. § 50-1027 here under consideration are satisfied.

It is true, as insisted by the Custodian, that the Chancellor did not make an express finding of fact concerning the existence of written records. Our examination of the transcript, however, shows that the records to which we have made reference were filed in evidence as a collective exhibit. It is apparent that the Chancellor concluded that the statutory requirements had been met, although perhaps it would have been better practice for him to have made specific allusion to them.

The assignment of error of the Custodian is overruled, and the judgment of the Chancellor is in all respects affirmed. Costs of the cause are taxed equally to the employer and to the Custodian of the Second Injury Fund.

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


author: SHRIVER, Judge. DROWOTA, Judge, TODD, Judge,

text:
    STATE of Tennessee, Plaintiff-Appellee, v. T. Brian LAYNE, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    March 26, 1976.
    Certiorari Denied by Supreme Court July 6, 1976.
    R. A. Ashley, Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, for plaintiff-appellee.
    Sam R. Raulston, Raulston & Swafford, Jasper, for defendant-appellant.
   OPINION

SHRIVER, Judge.

The Case

T. Brian Layne, a juvenile, was fifteen years of age at the time he was arrested and charged with Armed Robbery which occurred on the night of August 17, 1974. A hearing was held by the Honorable Grady Barker, Judge of the Juvenile Court of Se-quatchie County, Tennessee, on October 9, 1974, on petition of the District Attorney General, pursuant to Sections 37-224, 37-226 and 37-234, T.C.A. The Juvenile Judge held that the defendant, T. Brian Layne, should be held for prosecution and sentencing as an adult in the Circuit Court of Sequatchie County, pursuant to T.C.A., § 37-234.

The holding of the Juvenile Court was duly appealed to the Circuit Court of Se-quatchie County, as authorized by T.C.A. § 37-258, and was tried de novo in that Court before Judge Paul A. Swafford who affirmed the judgment of the Juvenile Court that the defendant should be tried as an adult.

From the foregoing actions, the case was appealed to this Court and assignments of error filed.

The Proceedings Below

The order entered in the Juvenile Court recites that the cause came on to be heard before the Honorable Grady Barker, Judge of the Juvenile Court in Sequatchie County, Tennessee, on October 9, 1974, on the petition of J. William Pope, Jr., District Attorney General, pursuant to Sections 37-224, et seq., T.C.A., whereupon it appeared, after a full investigation and hearing, that the defendant, J. Brian Layne, is a juvenile, 15 years of age, and is alleged to have committed robbery by the use of a deadly weapon on the premises of Mr. and Mrs. B. Thurman Davis at their home in Sequatchie County, Tennessee, on the night of August 17, 1974, and the Court, after hearing the evidence, finds that there are reasonable grounds to believe that the defendant committed the delinquent act alleged and does so find beyond a reasonable doubt. The order further recites that the Court determined that the juvenile had been previously committed by the Court as an unruly child, from all of which:

“. . . The Court makes the finding from the entire record that the said T. Brian Layne is not amenable to treatment or rehabilitation as a juvenile through available facilities and that he is not mentally retarded or mentally ill and that the interest of the community requires that the juvenile be placed under legal restraint or discipline.”

On appeal to the Circuit Court, and after a hearing, the following order was entered:

“ORDER AFFIRMING JUDGMENT OF JUVENILE COURT
This cause came on for hearing before the Honorable Paul A. Swafford, Circuit Judge, Part I, upon the appeal of T. Brian Layne from a prior adjudication of the Juvenile Court of Sequatchie County wherein T. Brian Layne was fifteen years of age at the time of said hearing and was fifteen years of age at the time of the alleged commission of the delinquent act, to-wit: Armed Robbery — robbery accomplished by the use of a deadly weapon upon the persons of Mr. and Mrs. Thurman Davis on August 17, 1974. At said hearing the Juvenile Court found that there was reasonable grounds to believe that the said T. Brian Layne committed the aforesaid act and that T. Brian Layne was not amenable to treatment or rehabilitation as a juvenile through available facilities and that the said T. Brian Layne was not committable to an institution for the mentally retarded or mentally ill and that the interest of the community required that the said T. Brian Layne be held under legal restraint.”

The said order proceeds by stating the Juvenile Court transferred custody of the defendant to the Sheriff of the County to be held and dealt with as an adult, whereupon, defendant’s attorney timely perfected an appeal to the Circuit Court where the matter came on to be tried de novo and where testimony was heard in open Court.

The order recites that after reviewing transcripts of the Juvenile Court and considering the testimony and the entire record, the Court was of opinion that the judgment of the Juvenile Court should be affirmed.

The order concludes:

“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the judgment of the Juvenile Court be and the same is hereby affirmed, to which action the defendant excepts and prays an appeal to the next term of the Court of Appeals sitting in Nashville, which appeal the Court grants under the conditions the defendant will remain under appearance bond as previously set forth and will file his bill of exceptions within nineth [sic] days.
This 1st day of May, 1975.
ENTER:
/s/ Paul A. Swafford
CIRCUIT JUDGE,
PART I”

Assignments of Error

There are four assignments, as follows:

Assignment No. 1 charges that there is no evidence to support the verdict and judgment of the Court.

Assignment No. 2 asserts error “because the verdict or judgment of the Trial Judge is contrary to the law and the evidence.”

Assignment No. 3 asserts that T.C.A. § 37-234 is too broad and vague and is in violation of the Fourteenth Amendment of the United States Constitution and Article I, Section 1 of the Tennessee Constitution.

Assignment No. 4 asserts that the Trial Court erred in holding that there were reasonable grounds to believe that the defendant was not amenable to treatment or rehabilitation as a juvenile through available facilities and that he be placed under legal restraint in violation of the foregoing provisions of the State and Federal Constitutions.

The Facts

A brief summary of the facts is as follows:

Mr. Thurman Davis and his wife testified that they lived alone in their home in Se-quatchie County; that on Saturday night, August 17,1974, they were alone at home in bed and that at approximately 11:25 P.M., a person known to them as Benny Wallace came to their door and asked permission to use the telephone, stating that he had car trouble. Mr. Davis admitted him to the house, and while he was using the telephone, Brian Layne came in the front door with a gun in his hand. Mrs. Davis was still in bed and Benny Wallace went into the bedroom and told her to get out of bed and come into the living room where she and her husband were both made to sit down. While Benny Wallace stayed in the living room holding a gun, Brian Layne went through the house gathering up personal belongings of the Davis’s which he piled up in the living room. They also took a billfold which had a little less than $200.00 in it. Among the items brought into the living room was a gun belonging to Mr. Davis and, at an opportune time, Mr. Davis grabbed this gun and shots were exchanged wherein Mr. Davis was wounded with a shot in his back and Benny Wallace was also injured.

After a search of the house and before the shooting occurred, Benny Wallace told Mr. and Mrs. Davis that he was going to kill them. Appellant later testified that he told Wallace he did not desire to kill the victims. Mr. Davis was not sure as to which of the two fired the shot that wounded him but he and Mrs. Davis escaped from the house and were able to get in their car and drive to the hospital. One of the two intruders shot at them as they drove away.

Appellant admitted his participation in the crime. He stated that he was fifteen years old at the time and stated that prior to this time his parents had asked the Juvenile Judge to send him to the Tennessee Preparatory School because he was not attending school regularly and because he was staying away from home and associating with Benny Wallace. After being sent to the Tennessee Preparatory School, he remained there for a few weeks and approximately four weeks prior to the Davis robbery Wallace went by the school and defendant, Brian Layne, ran away with him and stayed with Wallace during the time prior to his arrest. He denied that he ever threatened Mr. or Mrs. Davis and although Benny Wallace was a convicted felon and an adult, the defendant denied knowing that Wallace had been charged and convicted of a crime previous to the Davis robbery.

Selby Seals, Sheriff of Sequatchie County, testified that he arrested Brian Layne and, after he was treated for a flesh wound, he was taken to the Sequatchie County Jail. He stated that he had known the boy all of his life and the only complaint that he ever had against him was when he would not stay at home and his father asked him, the Sheriff, to pick the boy up because he was not staying at home and was not going to school regularly.

The Juvenile Judge, Grady Barker, testified briefly as to the hearing in his Court and his disposition of the case.

Dr. J. E. Gilliland, a psychologist with a Ph.D. in Psychology and whose qualifications were admitted by the State and who is licensed to practice in Tennessee, testified that he had made a psychological examination of Brian Layne; that he did not find the boy to be suffering from any mental problem except that he had remorse and guilt which could be expected under the circumstances. He found that the boy had some frustration. When asked whether in his opinion the defendant was amenable to treatment and rehabilitation as a juvenile, he stated that the boy had an average IQ and that he probably should be in a vocational technical school to learn a trade and that he needs counseling. He stated that there was nothing about the boy’s character that alarmed him enough that he would say he was afraid that the boy might be dangerous to the community.

On cross-examination, among other things, Dr. Gilliland stated:

“I think he’s very impressionable and if he goes to a penitentiary with adults I think that would have an unfavorable impression upon him.”

Mr. Harry Rowland, Principal of Sequat-chie County High School, testified that Brian was in his Third Year in High School; that since he has been out of jail, his attendance has been very good; that he had noticed a change in the boy’s attitude and that he did not cause any serious problems in school.

Gary Chrisman, one of the Coaches at the High School, commented on Brian’s physical ability and his interest in athletics.

Mr. Barrett, a Guidance Counselor at the High School, described a conference with the defendant and, in answer to the question as to whether, in his psychological opinion, Brian Layne was amenable to treatment or rehabilitation as a juvenile through available facilities, he answered:

“My opinion is that Brian is certainly capable of doing a good job, and I think he’s capable of living the kind of life that he needs to live and be accepted in society. I believe that Brian is capable of doing that.”

On being questioned as to the attitude of other students toward Brian since his trouble arose, among other things, he said:

They think of him as a young man and I haven’t heard one student that would be very abusive in a situation that he is in now.”

Donna Bone who teaches a Sunday School Class in the Community Baptist Church where Brian attends, stated that his attendance at Church and Sunday School has been regular since he was released from jail and that she had noticed a change in him.

Brian Layne’s father testified, among other things, that he has noticed that since Brian got out of jail, his attitude is different and he has been a good boy.

Our Conclusions

It is to be noted that Title 37 of the Code, “Juveniles,” was revised and re-enacted by Chapter 600, Acts of 1970, comprising Sections 37-101, et seq., of the Code.

In Section 37-229, T.C.A., among other things, it is provided:

“ . . .In the absence of evidence to the contrary, evidence of the commission of acts which constitute a felony is sufficient to sustain a finding that the child is in need of treatment or rehabilitation.”

Section 37-234, T.C.A., entitled “Transfer from Juvenile Court,” provides that after a petition has been filed alleging delinquency based on a crime or public offense, the Court may transfer the child to the Sheriff of the County to be held according to law and:

“The disposition of said child shall be as if he were an adult if:
(1) the child was sixteen (16) or more years of age at the time of the alleged conduct ... if the offense charged included murder, rape, robbery with a deadly weapon or kidnapping;
* * * * * *
(4) the court finds that there are reasonable grounds to believe that
(i) the child committed the delinquent act alleged;
(ii) the child is not amenable to treatment or rehabilitation- as a juvenile;
(iii) the child is not committable to an institution for the mentally retarded or mentally ill; and
(iv) the interests of the community require that the child be placed under legal restraint or discipline.
“(f) . . . After a child has been sentenced to an adult institution the department of correction may file a petition requesting the committing court to allow the department to transfer said defendant to an institution for juvenile delinquents. Upon the approval by such court the defendant may be transferred by the department of correction to a child caring institution to be held until his eighteenth birthday. At the defendant’s eighteenth birthday he or she may be transferred to an adult institution if there is time remaining on the defendant’s term. If the term expires prior to the eighteenth birthday said defendant shall be released. Any child sentenced by a committing court pursuant to this section shall, for the purpose of parole, be treated as if he were an adult.”

Under the statutes and under the decisions, upon judgment by the Juvenile Court that defendant should stand trial as an adult, the case is appealable to the Circuit Court where it is tried de novo with a presumption of correctness of the Juvenile Court’s findings. See In re Houston, 221 Tenn. 528, 428 S.W.2d 303 (1968).

As to the assignments which assert that the Juvenile Court Act, particularly Section 37-234, is so vague that men of common intelligence cannot understand it without guessing at its meaning and application and is, therefore, void as violative of the State and Federal Constitutions, the Tennessee Supreme Court in State ex rel. Davis v. Strickland, Hamilton Law, filed December 8, 1975, found this argument to be without merit. The Opinion states:

“Lastly, defendants argue that T.C.A. § 37-234 is unconstitutional because it is overbroad and vague. The assignment is without merit. The basic concept behind the vagueness doctrine is the idea of fairness, and that the statute should be sufficiently specific to provide notice of the type of conduct expected. The doctrine should not be used to create a constitutional dilemma out of the practical difficulties in drawing statutes. Colten v. Commonwealth of Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d [584] 548 (1972). The lack of precision in a statute does not render a statute unconstitutional per se. See Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Judged by these standards the language of T.C.A. § 37-234 is constitutionally adequate in that it establishes criteria upon which the Juvenile Judge is to base his decision on whether to transfer the juvenile to the Criminal Court, and it adequately informs the parties as to what is to be considered by the Judge.”

We are of opinion, in line with Strickland, that the assignments of error based on unconstitutionality are without merit and are, therefore, overruled.

Applying the holdings of the Supreme Court in Strickland, supra, it would seem that the decision in the case at bar as to whether the Lower Court should be affirmed and the case remanded for the defendant’s trial in the Circuit Court as an adult is not to be determined on the basis of what we might conceive to be the preponderance of the evidence that was presented in the Juvenile Court and in the Circuit Court. In Strickland, the Supreme Court, speaking through Chief Justice Fones, said:

“Defendants next argue that there is insufficient evidence in the record to support a finding that the juveniles are not amenable to treatment or rehabilitation (4)(ii). The Court is only required to find that there are ‘reasonable groúnds’ upon which to base a finding that a juvenile is not amenable to rehabilitation. The Juvenile Court, in its role of parens patriae is placed in a unique position with regard to the persons appearing before it. The Juvenile Judge is experienced in the evaluation of youthful offenders and is given a wide range of discretion in attempting to establish the most beneficial course of action in rehabilitating those offenders. In making a decision whether a juvenile is amenable to treatment or rehabilitation, the Juvenile Judge may consider many factors including testimony by expert witnesses, the type of facilities available, length of stay in these facilities, the seriousness of the alleged crime, and the attitude and demeanor of the juvenile.”

At another point in Strickland it was said:

“The juveniles here have not been tried upon any charge; their guilt or innocence has not been adjudicated. They have no constitutional right to a jury trial at what is essentially a probable cause hearing. Nor is there a statutory right to a jury trial as T.C.A. § 27-234(a)(4) provides that the Judge shall make the factual determination at the transfer hearing.”

As to the procedure that has been followed in the case at bar it is interesting to note that in Strickland, a similar proceeding was followed as noted in the Strickland Opinion where the Court said:

“The Juvenile Court of Hamilton County, after receiving evidence at the transfer hearing, determined that the petitioner should be transferred to the Criminal Court and tried as an adult. That judgment was affirmed on de novo appeal by the Circuit Court of Hamilton County. An appeal was then taken to the Court of Appeals which affirmed the transfer to Criminal Court.”

As is pointed out by the Supreme Court in Strickland, the juvenile in the case at bar has not been tried on any charge; his guilt or innocence has not been adjudicated since the hearing in the Juvenile Court and on appeal to the Circuit Court was essentially a probable cause hearing and the final outcome of the defendant’s trial before a Court and jury is yet to be determined.

Applying the reasoning in Strickland to the case at bar, we are of opinion that the judgment below should be affirmed. Accordingly, the assignments of error are overruled, the judgments of the Juvenile Court and the Circuit Court are affirmed and the cause is remanded to the Circuit Court of Sequatchie County for trial as above indicated.

AFFIRMED AND REMANDED.

TODD and DROWOTA, JJ., concurs.

DROWOTA, Judge,

concurring.

Appellant’s emphasis on appeal is based principally upon two theories. He first argues that T.C.A. § 37-234 is unconstitutional because it is too broad and vague. This same argument was made in State ex rel. Davis v. Strickland (Tenn.1975), and our Supreme Court in upholding the constitutionality of the statute stated: “ . the language of T.C.A. § 37-234 is constitutionally adequate in that it establishes criteria upon which the Juvenile Judge is to base his decision on whether to transfer the juvenile to the Criminal Court, and it adequately informs the parties as to what is to be considered by the Judge.”

Appellant’s other theory is that the trial court in considering the criteria of whether the child is amenable to treatment or rehabilitation as a juvenile erred in concluding that there were reasonable grounds to believe that the defendant was not amenable to rehabilitation. Appellant avers that the proof is overwhelmingly to the contrary. Appellant further contends that the State’s proof on this issue was silent. The appellant apparently concedes for the purposes of this appeal, that there are reasonable grounds to believe that the defendant committed the alleged delinquent act and that he is not mentally retarded or mentally ill.

A review of the evidence fails to uncover any testimony by any witness that the defendant is not amenable to rehabilitation. On the contrary, Dr. Jerry E. Gilliland, a psychologist, and Mr. Barrette, a Youth Guidance Counselor, both testified as to the defendant being amenable to rehabilitation.

Dr. Gilliland found the defendant to be of average intelligence with no personality disorder and with no mental problems except for remorse and feelings of guilt. He found nothing to indicate that the defendant would be dangerous to the community, for he found no violent tendencies. He further testified that the defendant needs counselling and needs to complete a program of vocational technical school and learn a trade. He stated that such a program is available at the Taft Youth Center, however he was thinking of something even more than that, long term training.

The record reflects that the defendant’s father asked the Juvenile Judge to send his son to Tennessee Preparatory School because he was staying out at night, was hard to control, and was running around with Benny Wallace. The defendant testified that Benny Wallace came to visit him one day at T.P.S. and he told Benny “I was wanting to come back, that they could hide me out.” When Benny returned to T.P.S. the second time the defendant left with him. After hiding out for several weeks the delinquent act was committed by the defendant and Benny Wallace.

Judge Grady Barker, the Juvenile Court Judge, testified that he would have been willing to send the boy to a juvenile institution rather than sending him to the penitentiary if he had the authority to set the time, however, he felt the boy should be kept longer for rehabilitation. The Circuit Judge also indicated that under the proof the only, available institution was Taft Youth Center and the proof indicated that this young man needed a period of longer treatment than was available there.

Thus both the Juvenile and Circuit Court Judges apparently based their decision not on the fact that the defendant was not amenable to rehabilitation but based their decision on the fact that the juvenile was not amenable to rehabilitation in our state institutions due to the length of time he would stay.

In Strickland our Supreme Court stated that:

The Court is only required to find that there are “reasonable grounds” upon which to base a finding that a juvenile is not amenable to rehabilitation. . In making a decision whether a juvenile is amenable to treatment or rehabilitation, the Juvenile Judge may consider many factors including . . . the type of facilities available, length of stay in these facilities, the seriousness of the alleged crime, and the attitude and demeanor of the juvenile, (emphasis added)

It should be noted that in the Strickland case and in this case T.C.A. § 37-234(a)(4)(ii) read as follows: “The child is not amenable to treatment or rehabilitation as a juvenile through available facilities.” (emphasis added). Effective May 28, 1975, the phrase “through available facilities” was deleted (Chapter 296 of the Tenn.Pub. Acts of 1975). The consequences of this amendment have not yet been interpreted by our courts. In Strickland the Court specifically considered the type of facilities available and the length of stay in the facilities. The trial judge in this case specifically considered the fact that the facilities available only provided short term rehabilitation programs and he felt the defendant needed longer treatments and therefore was not “amenable to the treatment or rehabilitation as a juvenile through available facilities.” Unquestionably the deleted phrase changes the statutory requirement. As stated earlier, none of the witnesses in this case indicated that the child was not amenable to rehabilitation, however there was sufficient evidence for the trial judge to find reasonable grounds to believe that the child was not amenable to rehabilitation through available facilities. This ground apparently will not exist in the future.

This is a sad commentary upon our system of justice and rehabilitation when a child is required to stand trial as an adult due to the crowded conditions and lack of facilities in our juvenile institutions.

As indicated above, the question before us is not whether we would have found the juvenile not amenable to rehabilitation, but whether there were “reasonable grounds” upon which the trial court could base a finding that the defendant is not amenable to rehabilitation through available facilities. The lower court obviously considered the fact that the defendant had been committed to T.P.S. and would not stay there, the fact that he associated with Benny Wallace, and the fact that he participated in the commission of a violent crime as “reasonable grounds” for determining that the period of juvenile rehabilitation was not sufficient. I therefore concur with Judge Shri-ver that the judgment below should be affirmed.

I share the same concerns that Judge Todd expressed in his separate concurring opinion, and that Dr. Gilliland expressed when he stated: “I think he’s very impressionable and if he goes to a penitentiary with adults I think that would have an unfavorable impression upon him.” Once a child is transferred to criminal court, any disposition imposed by that court is the same as if the child was an adult. Following transfer, no child shall be sentenced to a state correctional school for juvenile delinquents. However, after a child has been sentenced to an adult institution, the department of corrections may file a petition requesting the sentencing court to allow the department to transfer the juvenile defendant to an institution for juvenile delinquents. If the court approves this petition, the defendant may be transferred by the department of corrections to a child caring institution until his eighteenth birthday. If time on his sentence remains to be served when the child reaches eighteen, he can be transferred back to an adult institution. If the term expires before his eighteenth birthday, the defendant is to be released. For purposes of parole, any child transferred to an adult court and subsequently sentenced is to be treated as an adult. T.C.A. § 37 — 234(f) (1975 Supp.).

I would also like to make the following observation. In Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the United States Supreme Court held that the double jeopardy clause of the Fifth Amendment attaches to the transfer hearing if the hearing becomes an adjudicatory proceeding to determine if the juvenile committed the offense charged. The Court stated that “nothing decided today forecloses States from requiring, as a prerequisite to the transfer of a juvenile, substantial evidence that he committed the offense charged, so long as the showing required is not made in an adjudicatory proceeding.” A reading of the State’s proof in this cause leads me to suggest that judges should be cautious as to the amount of evidence admitted to show the child committed the delinquent act. They should and must prevent the transfer hearing from becoming an adjudicatory proceeding.

TODD, Judge,

concurring.

Having no legitimate grounds for dissent, I must concur.

However, the picture presented by the evidence is that of a somewhat neglected and impressionable boy who has been led into a single criminal act of crime by an adult. The evidence does not indicate that he is beyond rehabilitation. On the contrary, the evidence indicates that he has already reversed his course and is pursuing a new way of life.

The only “fly in the ointment” seems to be the reluctance of the Juvenile Judge to relinquish control of the length of the stay at a juvenile institution. This is a strong reflection upon some part of our system of justice and rehabilitation.

There is no solace in the assurance that guilt or innocence will be determined by a fair trial. Guilt has been admitted, and will hardly be an issue in Circuit Court. The issue in Circuit Court will be the same as it was in Juvenile Court; namely, is there a judge on the bench with courage and compassion enough to preserve a wayward youth from the unthinkable consequences of mixing with hardened criminals in an adult institution.

My distaste for joining in this decision is relieved by my confidence that the Circuit Judge will exercise his discretionary power to assist this youth on his way to useful and virtuous manhood.


author: DROWOTA, III, Judge.

text:
    William J. HAYNES, Jr., et ux., Plaintiffs-Appellees, v. CUMBERLAND BUILDERS, INC., Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Sept. 3, 1976.
    Certiorari Denied by Supreme Court Jan. 17, 1977.

      Thomas C. Scott and John E. Buffaloe, Jr., Nashville, for plaintiffs-appellees.
    James L. Bass, Nashville, for defendant-appellant.
   OPINION

DROWOTA, III, Judge.

The plaintiffs, William J. Haynes, Jr., and Carol Donaldson Haynes, filed suit against Cumberland Builders for fraudulent misrepresentation in a land sales transaction. The Chancellor rendered a judgment for the plaintiffs on the ground of misrepresentation or mutual mistake. The defendant has appealed from this judgment.

On July 24, 1974, the plaintiffs-appellees entered into a contract to purchase a house and lot, more particularly described as Lot No. 34, Gold Key Estate Subdivision, from the defendant-appellant for $35,000.00. The property was conveyed to the plaintiffs on September 6, 1974. The plaintiffs alleged that prior to the conveyance, the defendant’s agent, W. A. Appleton, described their boundary line to Lot No. 35 as being straight with a telephone pole at the front of their property. This representation indicated to the plaintiffs that their driveway was wholly enclosed by their property.

Construction began on Lot No. 35 early in 1975. When the plaintiffs became concerned about the proximity of the construction to their purported boundary line, the defendant informed them that the actual boundary line with Lot No. 35 ran in the middle of their driveway.

The plaintiffs filed suit in the Chancery Court of Davidson County on January 29, 1975, against Cumberland Builders, Inc., L. Hall Hardaway, Sr. and W. A. Appleton, seeking reformation of the deed. In an amended complaint dated March 18, 1975, the plaintiffs sought the alternative remedies of rescission of the land sale contract or legal damages for misrepresentation. Mr. Appleton died on February 20, 1975, and the complaint was not revived against his estate. Upon the plaintiffs’ motion, the Chancellor dismissed their complaint against Hardaway with prejudice. The case against the remaining defendant, Cumberland Builders, Inc., was heard on December 12, 1975. The Chancellor, while refusing to grant rescission, held the defendant liable to the plaintiffs for $5,000.00 in damages. The defendant has perfected an appeal to this Court.

The appellant has assigned eight errors on the part of the Chancellor. Each will be dealt with individually. This opinion will resolve the issues in the following order: (1) the admission into evidence of William J. Haynes, Jr.’s conversation with the defendant’s deceased agent, W. A. Appleton; (2) the alleged fraud perpetrated upon the plaintiffs; (3) the plaintiffs’ proper remedy and (4) the plaintiffs’ obligation to mitigate the damages resulting from the tortious conduct.

(1)

The Chancellor admitted into evidence a conversation between William J. Haynes, Jr., plaintiff, and the defendant’s deceased agent, W. A. Appleton. The appellant contends that because Appleton was a party to this lawsuit T.C.A. § 24-105, the Deadman’s Statute, prohibits the admission into evidence of this conversation even though the complaint against Appleton was dismissed with prejudice. We disagree.

T.C.A. § 24-105 renders incompetent a witness who has observed a transaction involving a decedent only when that decedent’s estate or administration is a party to the lawsuit. T.C.A. § 24-105; Burton v. Farmers’ Building & Loan Association, 104 Tenn. 414, 58 S.W. 230 (1900). This statute cannot be extended by the courts to cases not within its terms upon the idea they fall within the evil which was intended to be guarded against. As an exception, it must be strictly construed as against the exclusion of the testimony and in favor of its admission. Newman v. Tipton, 191 Tenn. 461, 234 S.W.2d 994 (1950); Ghristofiel v. Johnson, 40 Tenn.App. 197, 290 S.W.2d 215 (1956).

W. A. Appleton’s estate is not a party to this lawsuit. T.C.A. § 24-105 is not applicable to the case at bar.

The appellant next makes the novel argument that the dismissal of Appleton from this case was improper because it deprived him of his vested right to assert the Deadman’s Statute. The appellant cites for authority Rickets v. Sexton, 533 S.W.2d 293 (Tenn.1976) and Anderson v. Smith, 521 S.W.2d 787 (Tenn.1975).

The Anderson case stands for the proposition that a plaintiff’s right to take a nonsuit against a defendant under Rule 41 of the Tennessee Rules of Civil Procedure is subject to the qualification that the granting of the nonsuit cannot deprive the defendant of a right which has vested during the pendency of the case. The rule of the Anderson case is not controlling here for three reasons. First, Anderson involves a plaintiff’s ability to claim a nonsuit as a matter of right, whereas our case involves the dismissal of a party from the case with prejudice. Second, the rights involved in Anderson were property rights, an interest in the condemned property and the right to receive compensation for publicly condemned property. The availability of a legal defense is not a “vested right” within the purview of Anderson. Third, if Appleton’s estate were made a party to this suit, the Deadman’s Statute would still not be available to the appellant. Where there are multiple parties to a lawsuit, one of whom is an estate or an administrator, that witness can still testify as to the transaction with the decedent as to the other parties to the suit, even though T.C.A. § 24-105 renders a witness incompetent to testify against the estate. Carman v. Huff, 32 Tenn.App. 687, 227 S.W.2d 780 (1949). The statute renders the witness incompetent as to the estate, it does not render the evidence wholly inadmissible. The appellant’s first assignment of error is overruled.

The appellant next argues that the admission into evidence of the Haynes-Appleton conversation contravened the Parol Evidence Rule and the Statute of Frauds. This argument is meritless. This case is sounded in tort. It is an action for fraudulent misrepresentation. The Parol Evidence Rule applies to suits on a contract. It has no application to a case involving a fraudulent misrepresentation which induces the execution of a contract. Fine v. Stuart, 48 S.W. 371 (Tenn.Ch.App.1898). For the same reasons as enumerated above, the Statute of Frauds is not available to the defendant-appellant. Hampton v. Hancock, 4 Tenn.Civ.App. 419 (1914). The appellant’s fourth assignment of error is overruled. We hold that the Chancellor properly admitted into evidence the conversation between Haynes and the defendant’s agent, Appleton.

(2)

The next issue is the defendant’s liability to the plaintiffs. The Chancellor found the defendant liable on the ground of misrepresentation or mutual mistake as to the true location of the property line. The basis of this ruling is a finding of fact that W.A. Appleton, agent for the defendant, pointed out to the plaintiff the boundaries of the property and represented that a utility pole in the northeast corner was on the property line. Appleton further represented to the plaintiff that his driveway was within the bounds of his property. This case comes before this Court upon a simple appeal. The standard of appellate review in such a case is de novo. T.C.A. § 27-303. In reviewing such a case, the Chancellor’s findings of fact are accompanied by a presumption of correctness; they can be reversed only when the evidence in the record preponderates against them. T.C.A. § 27-303.

The record clearly establishes that Appleton, using a plat which described the boundaries of Lot 34, represented to Haynes that his property line was an imaginary straight-line with a telephone pole which is in the right front of the property. This representation lead Haynes to believe that his driveway was within the confines of his lot. Approximately six months later, Haynes learned that Appleton’s description of the property was inaccurate and that the actual boundary line ran through his driveway. All the evidence in the bill of exceptions supports the Chancellor’s findings of fact. We are required to affirm these findings.

Having ruled that Haynes had his boundary lines misrepresented to him prior to purchasing the lot, the next question is what is the legal effect of that misrepresentation. We hold that Cumberland Builders, Inc., is liable for all the damages caused by this misrepresentation on the theory that this act by Appleton was a fraudulent misrepresentation.

When a party intentionally misrepresents a material fact or produces a false impression in order to mislead another or to obtain an undue advantage over him, there is a positive fraud. Bose v. Foutch, 4 Tenn. App. 495 (1926). The representation must have been made with knowledge of its falsity and with a fraudulent intent. Shwab v. Walters, 147 Tenn. 638, 251 S.W. 42 (1922); Vela v. Beard, 59 TenmApp. 544, 442 S.W.2d 644 (1968). The representation must have been to an existing fact which is material and the plaintiff must have reasonably relied upon that representation to his injury. Whitson v. Gray, 40 Tenn. 441 (1859); Dozier v. Hawthorne Development Co., 37 Tenn.App. 279, 262 S.W.2d 705 (1953).

In commercial transactions the law has recognized a less stringent standard of liability for fraudulent misrepresentations than the common law action for deceit. One who, in the course of his business, profession, or employment, or during a transaction in which he had a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon such information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. Jasper Aviation, Inc. v. McCollum Aviation, Inc., 497 S.W.2d 240 (Tenn.1972); Hunt v. Walker, 483 S.W.2d 732 (Tenn.App.1971). This standard of liability substitutes a reasonable care standard for the common law scienter requirement. In other words, in business transactions, a defendant can be held liable for negligent misrepresentations.

This case revolves around a business transaction, the reasonable care standard applies. The contractor was under an obligation to use due care in marking the boundaries of the lot correctly. This obligation was breached because the lot was not correctly marked and the driveway was mistakenly laid on the boundary line. Further, Appleton, as the real estate agent for the defendant builder, was under an obligation to use due care in learning what the actual boundaries of the property were before he made representations concerning those boundaries. In making the representations Appleton breached his duty of exercising due care. These representations went to a material fact in the transaction. Haynes’ reliance upon these representations was reasonable. We hold that Appleton’s principal, Cumberland Builders, Inc., is liable for the negligent misrepresentations of their agent.

We do not rest our finding of liability upon the ground of mutual mistake. It is true that Appleton was mistaken as to the boundaries of the property. However, Haynes’ misconception of the boundary line did not derive from his independent investigation of the property. It was derived from relying upon Appleton’s negligent misrepresentation.

The findings of the Chancellor are affirmed. The appellant’s third and sixth assignments of error are overruled.

(3)

We will now discuss the plaintiff’s proper remedy for the injuries caused by Appleton’s negligent misrepresentation. Before we deal with the proper formula for legal damages, we must resolve a threshold question. The appellant argues that the damages suffered by the plaintiffs are so minor as to not constitute a material variance in his property and thus his injuries do not shock the conscience of the Court. This being so, the plaintiffs are not entitled to judicial relief. This is an argument which is relevant only when equitable remedies are sought, and, as such, it is inappropriate for this appeal. This argument is appropriate for cases in equity because equity courts are courts of conscience, and equitable relief, while subject to some fairly strict guidelines, is largely a matter of the Chancellor’s discretion. However, the sole issue relating to damages in this case involves legal damages for misrepresentation. Whether or not a legal remedy will be granted is not dependent upon the conscience and discretion of the court, but rather upon the facts of the case. The fifth assignment of error is overruled.

The Chancellor granted the plaintiffs $5,000.00 in legal damages. In arriving at this award of damages the Chancellor had before him only estimates of the value of the property in controversy at the time of trial. He could not have properly applied the benefit of the bargain measure of damages. We are forced to remand this case to the trial court for a proper assessment of the damages according to principles set forth in this opinion.

The plaintiffs have a right to recover for all losses proximately caused by Appleton’s tortious conduct. Hux v. Butler, 339 F.2d 696 (6 Cir. 1964); Black v. Love & Amos Coal Co., 30 Tenn.App. 377, 206 S.W.2d 432 (1947); 37 Am.Jur.2d, Fraud and Deceit, § 351, p. 470 (1968). However, the plaintiffs have the burden of proving their damages; they can recover for all damages which are not remote or speculative but which are proved to be a reasonable certainty. Buice v. Scruggs Equipment Co., 37 Tenn.App. 556, 267 S.W.2d 119 (1963); 37 Am.Jur.2d, Fraud and Deceit, § 343, pp. 460-461 (1968).

In an action for damages caused by a fraudulent misrepresentation, the proper measure of the plaintiffs’ general damages is the benefit of the bargain rule. Ford Motor Co. v. Lonon, 217 Tenn. 400, 398 S.W.2d 240 (1966); Shwab v. Walters, supra; Augur v. Smith, 90 Tenn. 729, 18 S.W. 398 (1891) and Hogg v. Cardwell, 36 Tenn. 151 (1856). This measure of damages allows the plaintiff to recover the difference between the actual value of the property he received at the time of the making of the contract and the value that the property would have possessed if Appleton’s representations had been true. 37 Am.Jur.2d, Fraud and Deceit, § 353, p. 473 (1968); see Shwab v. Walters, supra; 13 A.L.R.3d, Damages — Fraudulent Representation, § 3, p. 885 (1967). The application of this measure of damages compels the defendant to make good on the false representations. The measure of damages and the fixing of the value of the property are to be determined as of the time of the transaction. 37 Am.Jur.2d, § 365, p. 495 (1968); 13 A.L. R.3d, §§ 2-3, pp. 882-902 (1967); McCormick on Damages, § 122, pp. 456-457 (1935). After reviewing the bill of exceptions, it is evident that the only evidence introduced on the damages’ aspect of this case pertained to the value of the property at the time of trial. The plaintiff testified that he had contracted to pay $35,000.00 for this parcel of land and that, after learning of Appleton’s misrepresentations, he thought the property was currently worth $30,-000.00. This being the only evidence before the Chancellor on the damages’ issue, it appears that in arriving at his damages’ award he applied an incorrect measure of general damages. We are forced to remand this case on this issue.

We will deal with the appellant’s assignments of error which relate to the Chancellor’s award of damages so as to provide guidelines for this case upon remand. The appellant argues that the plaintiff was incompetent to testify as to the value of his property because he was not qualified as an expert. We cannot agree.

The plaintiff has the burden of proving both values applied in the formula which measures his general damages, the actual value of the property at the time of the contract and the value of the property if it had been as it was represented to him. In a land sale transaction, the contract price is strong evidence of what would have been the value of the land had it been as represented. 37 Am.Jur.2d, § 353, p. 476; see 13 A.L.R.3d, § 2, pp. 882-884 (1967). This would not be true, of course, if it were shown that the sale was not a bona fide arms length transaction. However, proving the value of the land as it actually existed at the time of the contract is more difficult. This can be shown by expert testimony or by sales of similar tracts of land in the same area. The appellant questions the plaintiff’s right to prove this value by his own opinion evidence. In Tennessee, the owner of real property is competent to state facts about the property and give his opinion as to that property’s value. He does not have to be qualified as an expert. Wray v. Knoxville La Follette & Jellico Railroad Co., 113 Tenn. 544, 82 S.W. 471 (1904); Union Joint Stock Land Bank v. Knox County, 20 Tenn.App. 273, 97 S.W.2d 842 (1936); Railway Co. v. Seay, 1 Tenn.Civ.App. 134 (1910); D.F. Paine, Tennessee Law of Evidence, § 171, p. 188 (1974). In our case, Haynes laid a proper foundation for his opinion by stating that he purchased this tract of land because of the distance between buildings and that if he had known where the actual boundary was, he would not have purchased the land. While Haynes’ opinion that his land is worth $30,-000.00 is admissible, only the fact-finder can determine the weight that will be given to this evidence. In our particular case, however, this evidence would be conclusive because it was the only evidence that was submitted upon this issue. In short, the appellant’s remedy is not to argue that this evidence is inadmissible, but to submit his own evidence on this issue.

To sum up our resolution of the damages aspect of this case, we remand to the lower court for a proper application of principles of damages law. The appellant’s second and seventh assignments of error are overruled.

(4)

The final argument advanced by the appellant is that the plaintiff is not entitled to monetary damages because he failed to mitigate his injuries resulting from Appleton’s misrepresentations. We cannot agree.

It is the duty of an injured party to exercise reasonable care and diligence to avoid loss or minimize damages. Yates v. Metro Govt. of Nashville & Davidson County, 60 Tenn.App. 719, 451 S.W.2d 437 (1969); see Arkansas River Packet Co. v. Hobbs, 105 Tenn. 29, 58 S.W. 278 (1900); Summers & Lewis v. Sanderson, 7 Tenn.App. 624 (1928). The applicable standard is one of reasonable care. The plaintiff is not required to mitigate his damages if such action is unduly burdensome or impossible.

The Chancellor’s award of damages to the plaintiff did not include an award of consequential damages. The plaintiff was awarded only the difference between the value of the land as represented and its value as it existed at the time of trial. To this Court’s knowledge, there is no possible way that the plaintiff could have mitigated these damages, as they were awarded by the Chancellor. The plaintiff did not breach his obligation to mitigate his damages. The appellant’s eighth assignment of error is overruled.

This cause is affirmed in part, modified and remanded to the Chancery Court of Davidson County for further proceedings in keeping with the opinion of this Court as it relates to the proper consideration of the damages sustained by the plaintiffs.

Affirmed in part, modified and remanded.

SHRIVER, P. J., and TODD, J., concur.