author: FONES, Justice.

text:
    STATE of Tennessee, Petitioner, v. David MORGAN, Respondent.
    Supreme Court of Tennessee.
    Aug. 9, 1976.

      Etrula R. Trotter, Asst. Atty. Gen., Nashville, for petitioner; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
    John Edgar Brown, III, Bell, Painter, McMurray, Callaway, Brown & Mashburn, Cleveland, for respondent.
   OPINION

FONES, Justice.

Defendant Morgan was convicted of assault with a deadly weapon and sentenced to not less than one (1) nor more than two (2) years in the penitentiary.

The Court of Criminal Appeals reversed and remanded for a new trial, each member of the panel writing a separate opinion. All agreed that reversible error was committed but did not agree on the principles of law applicable to cross-examination of a defendant about prior convictions, nor on the admissibility or scope of rebuttal in the event of a denial thereof by defendant. We granted the writ of certiorari because our case law is not clear on these questions.

Defendant testified in his own behalf and was cross-examined, in part, as follows:

“GENERAL FISHER: ... Any prior felony convictions, Mr. Morgan?
A. Do what?
Q. Do you have any prior felony convictions?
MR. BROWN: Your Honor, I object to that.
THE COURT: That would be competent, any prior felony convictions.
MR. BROWN: I would doubt if he even knows what that means.
THE COURT: If he has had them he would know. I don’t know whether he has had them or not, Mr. Brown. Have you been convicted of a felony, Mr. Morgan?
A. No, I wouldn’t what you would say convicted of a felony. Do you mean shooting somebody?
THE COURT: No. Convicted of a felony. Have you ever been sent to the penitentiary?
A. No, Sir, I have never been in the penitentiary.
Q. Have you ever been sentenced to the penitentiary?
A. No, Sir.
Q. Got a suspended sentence.
A. No, I ain’t.
Q. What?
A. Suspended sentence.
Q. Yes.
A. I have had suspended sentences all right but—
MR. BROWN: Your Honor, again I object. He doesn’t understand what a felony is—
GENERAL FISHER: Well, let’s take a short recess and let Mr. Brown explain it to him, please the Court.
THE COURT: No, I am not going to do that. If you had a suspended sentence what was it for, Mr. Morgan?
A. Well, me and a guy—
THE COURT: Don’t tell what you and the guy did. Tell what the charge was. A. For stealing.
THE COURT: All right. That’s what he was asking you.
A. Yeah, I was charged for stealing all right.
THE COURT: Okay.
GENERAL FISHER: That’s all.”

At the conclusion of defendant’s proof, the State called Joe Talley, the clerk of the Criminal Court of Bradley County, as a rebuttal witness. He testified that the records in his office reflected that David Wayne Morgan was tried on October 26, 1962, convicted of assault to commit voluntary manslaughter, and sentenced to one year in the penitentiary.

During the course of adducing the foregoing testimony, an objection was raised that defendant had not been identified as the same David Morgan convicted in 1962. As a result of that objection, testimony of defendant and his son was thereafter interlaced with that of Talley; and the Attorney General dispatched the clerk to his office for additional records. Upon his return, Talley testified that in the 1962 case Morgan shot one Beecher Watson, the prosecuting witness; that it happened in a poolroom; and that he personally recalled the defendant on trial to be the same David Morgan tried and convicted in the former case.

All of the cross-examination quoted above and the events described, took place in the presence of the jury.

No instruction was given the jury by the Court that the proof of the prior conviction was admitted solely on the issue of the credibility of the defendant as a witness, and that it should not be considered upon the issue of guilt or innocence.

This case was tried on July 24, 1974, almost twelve (12) years after the former conviction and raises a question of remoteness.

I.

Our decisions dealing with the scope of cross-examination on the issue of credibility of a criminal defendant who elects to testify in his own behalf are in conflict.

It is clear that a defendant who elects to testify may be asked on cross-examination whether he has been convicted of an offense involving moral turpitude. With respect to prior indictments, pending indictments, instances of alleged commission of specific bad acts involving moral turpitude and the ambiguous words “charges” and “offenses,” authority may be found for and against admissibility as subject of cross-examination.

Compare Zanone v. State, 97 Tenn. 101, 36 S.W. 711 (1896); Powers v. State, 117 Tenn. 363, 97 S.W. 815 (1906); Keith v. State, 127 Tenn. 40, 152 S.W. 1029 (1912); Brooks v. State, 187 Tenn. 67, 213 S.W.2d 7 (1948); Gray v. State, 191 Tenn. 526, 235 S.W.2d 20 (1950); State v. Fowler, 213 Tenn. 239, 373 S.W.2d 460 (1963); and Collard v. State, 526 S.W.2d 112 (Tenn.1975) with Hendricks and Brooks v. State, 162 Tenn. 563, 39 S.W.2d 580 (1931); Kirby v. State, 182 Tenn. 16, 184 S.W.2d 41 (1944) and Posley v. State, 199 Tenn. 608, 288 S.W.2d 455 (1956).

The Zanone group of cases allow cross-examination beyond convictions involving moral turpitude while Hendricks and Brooks, Kirby and in particular Posley are subject to the interpretation that a testifying criminal defendant, as distinguished from other witnesses, may only be asked about prior convictions involving moral turpitude.

The moral turpitude standard, applied to convictions or to specific acts, offenses and charges, is a source of much disagreement. The Court in Brooks v. State, supra, acknowledging that the term “moral turpitude” has no satisfactory definition, quoted from a standard law dictionary:

“ ‘An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen or to society in general, contrary to the accepted rule or right and duty between man and man.’ ” 213 S.W.2d at 11.

In applying this definition, the courts of this State have experienced difficulty in determining whether a specific crime involves moral turpitude and may be used for impeachment.

The Court in Davis v. Wicker, 206 Tenn. 403, 333 S.W.2d 921 (1960), held that defendant in a civil action was properly impeached by showing a conviction for not having a proper driver’s license. In McKenzie v. State, 3 Tenn.Cr.App. 362, 462 S.W.2d 243 (1970), the Court apparently found that a conviction for inciting to riot involved moral turpitude, while a conviction for inciting children to leave school did not. In Everhart v. State, 194 Tenn. 272, 250 S.W.2d 368 (1952), the Court held that a testifying defendant might be asked about convictions for violating the liquor law. The Court in Gray v. State, supra, held that being a bootlegger does not involve moral turpitude. Although these examples do not represent a comprehensive collection of our cases, they are illustrative of the difficulty that our courts are faced with in applying a test that is vague and cannot be explicitly defined.

The Court in Zanone condemned inquiries into remote matters, for the reasons expressed in a quote from Greenleaf On Evidence:

“[T]he interests of justice do not require that errors of any man’s life, long since repented of and forgiven by the community, should be recalled to remembrance and their memory be perpetuated in judicial documents, at the pleasure of any future litigant. The State has a deep interest in the inducements to reformation held out by the protecting veil which is thus cast over the past offenses of the penitent.” 97 Tenn. at 118, 36 S.W. at 715.

We are persuaded that adoption of the Federal Rules of Evidence on this question should achieve a higher degree of consistency, fairness and justice and better serve the quest for truth. The Federal Rules of Evidence applicable to the inquiry under consideration in this case are Rule 608(b) and Rule 609(a) and (b). Said Rules are as follows:

Rule 608.
Evidence of Character and Conduct of Witness
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.
Rule 609.
Impeachment by Evidence of Conviction of Crime
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

II.

In this case the question asked by the District Attorney was, “Do you have any prior felony convictions?” That question is too broad because it could elicit incompetent testimony. Campbell v. State, 469 S.W.2d 506 (Tenn.Cr.App.1971). The question of whether evidence of a particular crime or specific acts is admissible must be determined by the trial judge out of the presence of the jury, to avoid possible prejudice to defendant. If it is determined that the prior crime is within the admissible category, the inquiry in the presence of the jury,

“. . . [M]ust be limited to the fact of a former conviction and of what crime, with the object only of affecting the credibility of the witness, not prejudicing the minds of the jury as to the guilt of the defendant witness of the crime for which he is on trial.” 162 Tenn. at 566, 39 S.W.2d at 581.

Also, see McGee v. State, 206 Tenn. 230, 332 S.W.2d 507 (1960) where this Court approved the action of the trial judge in not allowing the details of the offense — assault to commit murder in the first degree — to be related to the jury. Defendant McGee had pistol-whipped a young girl.

III.

The plurality opinion of the Court of Criminal Appeals held that if defendant denied a prior conviction involving moral turpitude or affecting credibility, the issue is foreclosed and the State cannot adduce any evidence to the contrary in rebuttal.

That is the rule where defendant is cross-examined about prior specific bad acts involving moral turpitude or affecting credibility, as distinguished from prior convictions. Gray v. State, supra, Powers v. State, supra, and Zanone v. State, supra, relied upon by the Court of Criminal Appeals involved bad acts, not convictions; and the answers of the defendants were held to be conclusive and not subject to contradiction in rebuttal. Parenthetically, it is well to note that Zanone stated the rule as allowing cross-examination as to specific acts and indictments involving moral turpitude; but Posley v. State, supra, and Brooks v. State, supra, have held to the contrary as to indictments, charges and accusations that some particular offense has been committed, and we approve the latter cases on that question.

The plurality opinion also relies on the following quote from Chief Justice Neil’s concurring opinion in Posley:

“But cross-examination must be confined to crimes (1) where a defendant, or the witness, has been convicted, and which admittedly involves moral turpitude; and (2) his character wherein he has committed offenses contrary to accepted standards of decency and morality, but which may not necessarily be subject to criminal prosecution. The State, of course, is bound by his answer in the sense that it cannot prove by way of rebuttal that he was guilty of the specific wrongs and offenses about which he had been asked.” 288 S.W.2d at 459.

We think that only answers to the second category of questions under discussion by Chief Justice Neil, that is “offenses” not necessarily subject to prosecution (bad acts), were intended to be conclusive. Earlier in the same concurring opinion the author had said, “If he is guilty of such a crime, involving moral turpitude, the record of conviction is the best evidence.” 288 S.W.2d at 458.

We hold that a defendant’s negative answer to a proper question involving a prior conviction is not conclusive; and the State may introduce in rebuttal, in the approved manner, the documentary evidence of the conviction, but nothing more. No lengthy inquiry into collateral matters is involved as would be the case if rebuttal should be allowed where bad acts are in question and denied.

We further hold that where a witness is sought to be cross-examined as to specific instances of conduct as contemplated by Rule 608(b), the Court shall conduct a jury-out hearing for the purpose of determining that the probative value of such evidence outweighs its prejudicial effect. When such cross-examination is permitted the answer of the witness shall be conclusive. Apparently no Tennessee case has so held, but inferentially Fee v. State, 497 S.W.2d 748 (Tenn.Cr.App.1973) supports this rule.

Both concurring opinions in the case at bar insist that the correct rule allows proof of the record of conviction in rebuttal. Cases from other states in conformity with our conclusion are: Headley v. State, 51 Ala.App. 148, 283 So.2d 458 (1973); People v. Theodore, 121 Cal.App.2d 17, 262 P.2d 630 (1953); State v. Sorrell, 85 Ariz. 173, 333 P.2d 1081 (1959); Lockwood v. State, 107 So.2d 770 (Fla.App.1958); State v. Bock, 80 Idaho 296, 328 P.2d 1065 (1958); Hardin v. State, 232 Miss. 470, 99 So.2d 600 (1958); City of Troy v. Cummins, 107 Ohio App. 318, 159 N.E.2d 239 (1958). See also, Paine, Tennessee Law of Evidence, § 205.

IV.

Whether Morgan’s prior conviction of assault with intent to commit murder involves moral turpitude under prior decisions of this Court presents a difficult question.

In his concurring opinion, presiding Judge Walker correctly observes that, “voluntary manslaughter is when one kills another upon a sudden heat, produced by adequate provocation without malice, and is an act of passion rather than judgment.”

Neither a conviction of voluntary manslaughter nor assault with intent to commit voluntary manslaughter renders one infamous pursuant to T.C.A. § 40-2712, which permits the use of convictions of infamous crimes as a reflection upon credibility.

In our opinion, if the 1962 conviction could be held to involve moral turpitude under our prior case law, it would be necessary to reverse this case because of the testimony of the clerk relating to details of the offense and the failure of the trial judge to instruct the jury that proof of the prior conviction was admitted solely on the issue of the defendant’s credibility as a witness, and could not be considered as to defendant’s guilt or innocence.

It appears that under the tests we have adopted today, the 1962 conviction would not be admissible for remoteness. On remand, if the State seeks to introduce the prior conviction, the trial judge shall determine out of the presence of the jury whether or not it is admissible under the rules we have adopted in this opinion.

The results reached by the Court of Criminal Appeals are affirmed for the reasons stated herein, and the case is remanded to the Criminal Court of Bradley County for a new trial.

HENRY, BROCK and HARBISON, JJ., and HYDER, Special Judge, concurs.

      . See Paine, Tennessee Law of Evidence, § 202 at 225.


source: Caselaw Access Project

license: Public Domain

text:
    Marvin BUSH and Jerry Bolton, Petitioners, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Aug. 16, 1976.

      Michael R. Jones, J. Travis Price, Springfield, for petitioners.
    R. A. Ashley, Jr., Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., Nashville, O’Brien Price, Dist. Atty. Gen., Springfield, for respondent.
   OPINION

FONES, Justice.

We granted the writ of certiorari in this case and a case styled Turner v. State of Tennessee, Tenn., 541 S.W.2d 398, to clarify the presumption or inference that may be drawn from proof of possession of recently stolen property. Our opinions in the two (2) cases are being released simultaneously.

Marvin Bush, Jerry Bolton and Shadrack Dean were indicted, tried and convicted of second degree burglary of the home of Charles Moffett. Dean did not appeal. Bush and Bolton appealed from sentences of not less than three (3) nor more than fifteen (15) years each. All of the assignments of error on behalf of Bush and Bolton in the intermediate appellate court and here relate to the alleged insufficiency of the evidence to convict.

The Court of Criminal Appeals affirmed both convictions. A dissenting member of the panel was of the opinion that the evidence clearly established that, “. Bolton was in possession of the stolen guns before Bush became aware of their existence.” He concluded from that finding, that the majority had permitted the inference arising from possession of recently stolen goods to set aside the presumption of innocence. We granted the writ of certio-rari in both cases.

I.

We deem it pertinent to state the substance of the testimony of the material witnesses in the chronological order that the evidence was adduced at the trial.

Charles Moffett testified that on January 23, 1974, he locked and left his home about 11:30 a. m.; and when he returned approximately one hour and fifteen minutes later, he found the back door had been forced and shattered and three (3) rifles, a shotgun and a wrist watch were missing. His home was situated at the dead end of a county road about two hundred (200) yards long that runs off Sandy Springs Road in Robertson County. Only two (2) other houses are on the dead-end road, the Langford house and the Edwards house. Moffett observed that the road had been recently graded, and after discovery of the robbery he examined the road bed and found that no motor vehicle had traversed the road to his house, other than his own. He worked on custom rifles and his home had been robbed before. He identified the four (4) guns and gave his opinion of their value.

Joe Robertson, an investigator with the Sheriff’s Office, testified that shortly after question Billy Walker, owner of the Burley Cafe, as to his knowledge of any stolen guns, Walker arranged to meet him and turned over to him a trash or garbage bag containing four (4) guns. The four guns were shown to be those identified by Mof-fett as having been stolen from his home on January 23.

An FBI fingerprint expert testified that he found Marvin Bush’s fingerprints on one of the rifles and the shotgun. Although he was able to lift other fingerprints from the guns he was not, “. . . able to identify any other parties by any finger prints.”

Ruthie Trogdon testified that on January 23, 1974, she was living with her sister and brother-in-law, the McKinneys, who were renting the Edwards house on the same dead-end road where the Moffett house was located. She was divorced and had been “going with” Marvin Bush for about a year; that he had stayed overnight at the Edwards house the night before and the night after the robbery. On cross-examination by counsel for Bolton, she “guessed” that she had spent the night with him more often than not since their relationship began. She admitted that she was “still going with” Bush at the time of the trial. She testified that Bolton appeared at the Edwards house about 1:00 p. m., she didn’t know how he got there, she didn’t see a car; that he asked Bush to carry him to town. Since this testimony is said to exonerate Bush from any participation in the burglary, we quote from the record:

“Q. And what did Mr. Bolton have to say?
A. He said he had gotten some guns or something like that. I don’t know now just exactly what he said, and I don’t want to say anything to hurt the boy because I can’t remember exactly what he did say, his exact words, but Marvin did take him to town.
Q. So Mr. Bolton came in and announced that he had gotten some guns?
A. No, he didn’t announce it. He was talking to Marvin.
Q. He was talking to Marvin?
A. He was talking low enough that I just didn’t catch what he was saying, because I didn’t figure it was any of my business.
Q. You didn’t hear all the conversation?
A. No, I didn’t.
Q. But he did say he got some guns?
A. Yes, sir.
Q. You did hear that?
A. Yes.
Q. But there was other conversation there?
A. Well, not that much. Marvin left and took him to town.
Q. Mr. Bolton was speaking directly to Mr. Bush and you overheard part of that conversation?
A. Yes, sir. It’s hard to hear when you have children and the television going.
Q. Do you know how Mr. Bolton got to your house?
A. No, sir, I sure don’t.
Q. Did you notice whether or not he was traveling in an automobile?
A. No, sir, I don’t know how he got there. The way the road is made if you come to the house you have almost got to go down to the two little houses below or either come right around the driveway. I didn’t see any cars.
Q. You did not see any cars?
A. No.
Q. Did you see any guns?
A. No.
Q. Did you hear Mr. Bolton make any reference to where these guns were?
A. No, sir, I sure didn’t. Marvin brought him to town, but he didn’t stay gone but just a few minutes.”

She testified that Bush came back alone, that they watched TV until an hour or so before dark and then drove to town, where Bush parked his car in a little driveway between the Burley Cafe and a car lot; that she remained in the car but Bush walked around to the back of Burley’s Cafe where Shadrack Dean’s car was stopped with its trunk open, at the rear door of the Cafe. She identified Dean, Billy Walker and Bolton as having been present with Bush at the open trunk of Dean’s car, but disclaimed any knowledge of what they were doing or of seeing any guns or any money change hands. She said that Bush returned to the car after a very few minutes; they rode around awhile, ate a sandwich and returned to the Edwards house. She said that her sister and brother-in-law had moved away and she did not know where they were.

Billy Walker, a retired service man and the owner of Burley Cafe, testified that after receiving a telephone call from Dean, Bush and Dean brought four (4) guns to the back door of the Burley Cafe in the trunk of a vehicle. Walker bought them for seventy-five ($75) dollars cash and gave the money to Dean. A third man was with them who was about the size of Bolton but he could not say that Bolton was or was not that person. He did not see them divide the money, but they came inside the Cafe, had one or two beers and left. He put the guns in a trash bag and later turned them over to the police.

Following the State’s proof, Bolton testified in his own behalf. His entire relevant testimony consisted of denying that he was present at the Edwards house or the Burley Cafe on January 23, 1974. He was not cross-examined by the State or by counsel for either of the other two defendants. He did not deny that he stole the guns, nor did he deny receiving any money for the sale of the guns.

Shadrack Dean testified that Bush and Bolton came to his house and asked if he knew where they could sell some guns; that Bush’s mother’s house was located three or four houses down the street and that he went there and inspected the four (4) guns in Bush’s car. He then called Billy Walker, put the guns in the trunk of his car and drove to the Burley Cafe, accompanied by Bush and Bolton, and sold the guns to Billy Walker for seventy-five ($75) dollars. He kept fifteen ($15) dollars and gave Bush and Bolton thirty ($30) dollars each. He testified that all of these events occurred around 2:00 p. m. or 2:30 p. m. He said that Bush’s car remained at his mother’s house while they went to the Cafe to sell the guns. He was asked if he had heard Ruthie Trogdon testify about coming to town with Bush in his car and sitting in the driveway at the time of the transaction with Billy Walker. His response was, “She told a lie.” He admitted that he, Bush and Bolton were good friends and had run around together but denied being with them before they came to his house about 2:00 or 2:30 p. m. on January 23. He said that his involvement with them on the day of the robbery covered a period of approximately thirty (30) minutes; that Bolton was “pretty well strung out” and did not converse with anybody.

Dean’s mother testified that he was home all day on January 23, keeping the children while his wife worked, except for thirty (30) to forty-five (45) minutes sometime in the afternoon, before leaving at 4:00 p. m. to pick up his wife.

Bush did not testify.

II.

In Tennessee we follow the generally approved rule that proof of possession of recently stolen goods gives rise to the inference that the possessor has stolen them. Peek v. State, 213 Tenn. 323, 375 S.W.2d 863 (1964); Hughes v. State, 27 Tenn. 75 (1847); Cook v. State, 84 Tenn. 461, 1 S.W. 254 (1886); and Shaw v. State, 1 Tenn.Cas. 77 (1858).

The dissenting member of the Court of Criminal Appeals repeats here the substance of his dissent in Smith v. State, 2 Tenn.Cr.App. 117, 451 S.W.2d 716 (1969).

In the instant case, he accuses the majority of relying upon the proposition, “that possession alone, although explained in a credible fashion may support a finding of guilt.” It appears that the dissenter entertains the view that if possession alone is relied upon for conviction and it is “rebutted by evidence that is not patently false,” or “explained in a credible fashion,” the presumption or inference should disappear, with the result that there remains no jury issue. We do not believe that to be the law in this State.

In McCormick On Evidence, Second Edition, Dean McCormick ventures the assertion, . . that ‘presumption’ is the slipperiest member of the family of legal terms, except its first cousin, ‘burden of proof.’ One author has listed no less than eight senses in which the term has been used by the courts.” Section 342, at 802, 803.

Black’s Law Dictionary, Fourth Edition, defines a presumption of law as “A rule of law that courts and judges shall draw a particular inference from a particular fact, or from particular evidence, unless and until the truth of such inference is disproved.”

Definitions of presumption and inferences with different shades of meaning and in direct conflict may be found in great abundance in the reported cases. On the issue of whether the presumption vanishes or remains to be weighed by the jury, we believe the correct rule to be found in the following quote from the opinion of H. G. Hill Co. et al. v. Squires, 25 Tenn.App. 164, 153 S.W.2d 425 (1941):

“A legal presumption is a fiction of the law and is an assumption for convenience, but where proof to the contrary is introduced, the assumption is waived for it is no longer logical to assume a fact which is refuted by positive testimony. Frank v. Wright, 140 Tenn. 535, 543, 205 S.W. 434. But instances arising from proven circumstances take on a higher quality of evidential value, and to deny by positive proof the inference arising from the circumstances will not destroy it, otherwise tracks, finger prints, etc., would have no evidential value so long as the defendant was willing to deny them. So, an inference arising from proven circumstances is of a higher character of evidence than a legal presumption and the inference is not destroyed by contradictive testimony.” 25 Tenn.App. at 167, 168, 153 S.W.2d at 427.

While it may be said that the presumption assuming guilt of the theft must be discarded when the defendant comes forward with an explanation, the inference arising from the proven fact of possession of recently stolen property is not destroyed by contradictory evidence, even the positive testimony of witnesses:

“ ‘The presumption of law disappears in the face of substantive evidence to the contrary, provided the evidence is not impeachable from the record, but circumstantial evidence may contradict the positive testimony and corroborate the presumption. If this were not the fact it would be impossible to convict the defendant when he was of a mind to deny proven circumstances. The inference arising from the circumstantial evidence is of higher evidential quality than a mere presumption of law; a logical and legitimate inference arising from proven circumstantial facts cannot be destroyed as a matter of law by the positive testimony of witnesses; there is then established a conflict of testimony to be determined by the jury. We do not think it necessary to enter into a review of the authorities to establish this point.’ ” 25 Tenn.App. at 168, 153 S.W.2d at 427. (Quoting from an unpublished opinion.)

Thus, in our view, the circumstantial force of the inference does not “vanish” upon the appearance of defendant’s explanation. It remains to be weighed by the jury against the evidence offered by defendant in explanation of his possession of the recently stolen property.

We believe this view to be consistent with Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), where the Court was dealing with the related inference of knowledge that the property was stolen, arising from proof of possession of recently stolen property.

“[T]he mere fact that there is some evidence tending to explain a defendant’s possession consistent with innocence does not bar instructing the jury on the inference. The jury must weigh the explanation to determine whether it is ‘satisfactory.’ [citation omitted]. The jury is not bound to accept or believe any particular explanation any more than it is bound to accept the correctness of the inference. But the burden of proving beyond a reasonable doubt that the defendant did have knowledge that the property was stolen, an essential element of the crime, remains on the Government.” 412 U.S. at 845, n. 9, 93 S.Ct. at 2362.

The reason for the presumption is that proof of possession of recently stolen property gives rise to the probability that the possessor stole the property. The evidence of possession, sufficient to invoke the presumption, is seldom, if ever, alone. It necessarily establishes the time and distance relationship between the burglary or theft and the possession by defendant. Frequently the defendant’s proximity to the place of taking and his opportunity or lack of opportunity to have committed the theft are revealed by some circumstance accompanying the proof of possession. In short, the evidence of possession is almost inevitably accompanied by facts that either increase or decrease the degree of probability. Thus the evidence of possession sufficient to invoke the presumption will vary widely from case to case; and at one end of the spectrum, the degree of probability that defendant committed the theft will be so strong that a clear and cogent explanation may be necessary to convince a jury that the presumption has been overcome, while at the other end of the spectrum, a reasonable explanation of much less probative value will suffice.

Of course, the trial judge may direct a verdict for a defendant, when under the test applicable to all criminal cases, the explanation of the defendant so overcomes the circumstantial force of the inference that there is insufficient evidence to warrant a conviction.

We expressly reject the suggestion by the dissenter that this presumption is subject to the same treatment as the inference in a civil case that arises from proof of ownership of an automobile that the driver is about the business of the owner.

III.

On the other hand, we are of the opinion that insofar as our cases hold that unexplained possession of recently stolen goods raises a conclusive presumption of guilt, they are out of step with the weight of authority in our sister states and contrary to decisions of the United States Supreme Court. See Thomas v. State, 225 Tenn. 71, 463 S.W.2d 687 (1971), Barnes v. United States, supra.

The various statements of unexplained possession said to give rise to a conclusive presumption of guilt have their origin in Shaw. Following excerpts from Greenleaf, Phillips and Cowan and Hill’s notes on Phillips, the Shaw Court proclaimed:

“The true rule seems to be, that the possession of stolen goods is always competent evidence without regard to time, though insufficient of itself, after a considerable lapse of time. If it be recent, it is conclusive, unexplained; if remote, additional circumstances of suspicion, arising out of the prisoner’s language or conduct, before or after the larceny, his false accounts of it, or his proximity to the time and place of taking, are necessary to raise the presumption of guilt; that is, in the one case it is not sufficient per se, and in the other it is, when unexplained.” 1 Tenn.Cas. at 78.

Jury instructions molded to express the true rule or the Greenleaf rule or the Phillips rule may be found in subsequent cases, and generally has been approved, although criticized in Thomas.

In Barnes the court reviews prior decisions involving due process attacks on statutory inferences. It expressly holds that if a statutory inference satisfies the reasonable doubt standard, as well as the more-likely-than-not standard, it may be submitted to a jury as sufficient to support a conviction. We think it is clearly implicit, if not explicit, from the entire opinion, that while the jury may find unexplained circumstances sufficient to invoke the inferred fact and support a conviction, it is not bound to accept the correctness of the inference. It follows that it is improper to instruct a jury that a presumption of guilt arises, that if unexplained, is conclusive, or any words of similar import.

The jury instruction given by the trial judge in Barnes provides a model for the framing of an appropriate instruction whether the inferred fact is knowledge that the property had been stolen or that the possessor was the thief. In Barnes, the defendant did not testify. Where defendant testifies, of course, there is no occasion to include the reminder of his constitutional right of silence. Where defendant offers an explanation, the instruction should make it clear that the jury must determine both the correctness of the inference and the weight to be given the explanation, that it is not bound to accept either and that the burden of proving guilt of the offense beyond a reasonable doubt remains on the State.

Thus, Shaw and its progeny are overruled to the extent of inconsistency with the foregoing.

IV.

We disagree with the contention of defendant Bush and the dissenting Judge that the explanation of Ruthie Trogdon has overcome the inference. The evidence of his possession of the stolen property is so near in time to the theft as to render the possibility almost non-existent that some other person with whom they were not involved as principals committed the theft and transferred possession to them. The evidence supports opportunity by their proximity to the place of the theft at or near the time it was committed. The evidence that they effected a sale of the stolen property within two or three hours after the theft occurred in a manner and at a price consistent with stolen property sales, lends considerable circumstantial force to the inference. Obviously, this is not a case in which it can be said that the force of the presumption rests on “possession alone.”

It is asserted that Ruthie Trogdon testified that Bush was at the Edwards house all morning, and that he did not leave until he and Bolton drove to town after 1:00 p. m., thus, it follows that he could not have participated in the burglary. That contention is based upon the following question and answer: “Q. Who else was present that morning? A. My sister and the kids and myself and Marvin and Mickey come home about dinner.”

Obviously dinner refers to the noon meal. The State insists that her answer means that Marvin Bush was away from the Edwards house part of the morning and that he and her brother-in-law, Mickey, returned about dinner. The jury either interpreted her answer in accord with the State’s version, or did not believe her attempt to protect her lover. In either case, the ambiguity of her testimony is such that it will not support defendant Bush’s contention that it is sufficient to exonerate him from the burglary. The same may be said of her testimony that she overheard Bolton saying that, “. . .he had gotten some guns or something like that. I don’t know now just exactly what he said . . . .”

We agree with the majority of the Court of Criminal Appeals in rejecting the contention that the State is bound by every fact testified to by Ruthie Trogdon. The rule that a party cannot impeach his own witness, except in certain circumstances, does not forbid him from presenting and relying upon contradictory evidence, testimonial or circumstantial. It is for the court and jury to sift the evidence, weigh it and decide where the truth lies. See State v. Silva, 477 S.W.2d 517 (Tenn.1972); Hewgley v. General Motors Acceptance Corporation, 39 Tenn.App. 553, 286 S.W.2d 355 (1955).

While the State is bound by the same rules applicable to other parties, the wisdom of the rule is more readily apparent in the case of the State, because of the special obligation of the prosecution to bring forward all available witnesses. See King v. State, 187 Tenn. 431, 215 S.W.2d 813 (1948).

V.

Because we are unable to say that the instruction given by the trial judge did not prejudice the rights of these defendants, we must reverse and remand these cases for a new trial.

The charge given was as follows:

“Recent possession of personal property proven to have been stolen, unexplained, is plenary proof of guilt. It creates a strong presumption of guilt and in the absence of explanation, if in the power of the defendant or defendants to explain, must necessarily make evidence of guilty possession stronger. In fact, the recent possession of stolen articles under these circumstances, would not merely be a strong circumstance, but raise a presumption of guilt upon which the jury should convict.”

We believe it is fair to say that the instruction goes beyond the scope of any rule to be gleaned from Shaw. The last sentence, in particular, was tantamount to an express direction from the trial judge to return a guilty verdict.

The convictions are reversed and the cases remanded to the trial court of Robertson County for a new trial consistent with this opinion.

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

      . Smith v. State, supra, at 721.

      . Bush and Bolton v. State, Court of Criminal Appeals, Dissenting Opinion, filed October 15, 1975.

      . Common-law inferences are subject to the same rules, insofar as here pertinent. Id., 412 U.S. at 845, n. 8, 93 S.Ct. at 2357.

      . “[Tjhat is, the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt.” Id. at 843, 93 S.Ct. at 2362.

      . “Possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen.
      “However, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrant any inference which the law permits the jury to draw from the possession of recently stolen property.
      “The term ‘recently’ is a relative term, and has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property, and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from unexplained possession.
      “If you should find beyond a reasonable doubt from the evidence in the case that the mail described in the indictment was stolen, and that while recently stolen the contents of said mail here, the four United States Treasury checks, were in the possession of the defendant you would ordinarily be justified in drawing from those facts the inference that the contents were possessed by the accused with knowledge that it was stolen property, unless such possession is explained by facts and circumstances in this case which are in some way consistent with the defendant’s innocence.
      “In considering whether possession of recently stolen property has been satisfactorily explained, you are reminded that in the exercise of constitutional rights the accused need not take the witness stand and testify.
      “Possession may be satisfactorily explained through other circumstances, other evidence, independent of any testimony of the accused.” Id. at 840, n. 3., 93 S.Ct. at 2360.


text:
    Ronald TURNER, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Aug. 16, 1976.

      Thomas H. McCallie, III, John C. Little-ton, Chattanooga, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., Nashville, for respondent.
   OPINION

FONES, Justice.

We granted the writ of certiorari in this case and a case styled Bush and Bolton v. State of Tennessee, 541 S.W.2d 391 to clarify the presumption or inference that may be drawn from proof of possession of recently stolen property. Our opinions in the two (2) cases are being released simultaneously.

Turner was convicted of concealing stolen property, sentenced to three (3) to five (5) years in the penitentiary and the Court of Criminal Appeals affirmed.

I.

About midnight on Friday, September 6, 1974, James R. Welch went into the J & B Club located on the Clinton Highway in Knox County, Tennessee to have a beer. As he expressed it, he made the mistake of leaving the keys in his 1967 Oldsmobile and after a sojourn' of approximately twenty (20) minutes in the club, he discovered his car had been stolen and notified the police.

About 7:00 p. m. on Saturday, September 7,1974, a homeowner in Chattanooga called the police to investigate vehicle damage to his garage and its contents. Officer Lyda’s investigation disclosed that a 1967 Oldsmobile parked on a slope had rolled backward into the garage of a house across the street, damaging bicycles and a vehicle. Upon inquiry at the scene for the owner of the Oldsmobile, Lyda testified that defendant came forward and said the car belonged to a friend of his and that he had borrowed it. Defendant had no registration papers, and Lyda checked with the National Crime Information Center and received the report that the Olds had been stolen. Defendant was placed under arrest and transported to the Chattanooga Police Station. He was advised of his constitutional rights and informed that he would be charged with grand larceny of an automobile and receiving and concealing stolen property. Officer Lyda left him alone in an interrogation room for about twenty (20) minutes, and he tried to escape by removing a ceiling tile and making his way into the space above the false ceiling.

At the trial his mother testified that on Friday morning about 11:00 a. m., September 6, 1974, defendant left her home to catch the bus to go to school. About 3:00 p. m. on Saturday, September 7, 1974, he returned in a station wagon and told her that Eddie gave him the keys to the car at the VIP Club in Knoxville. He told her he had come home to get some money. She said that two (2) checks had arrived in the mail. He soon departed telling her that he would be back later, that he had to return the car to the VIP Club in Knoxville. On cross examination she said that her son told her Jack Donaldson loaned him the car; that he had gone to Knoxville with Eddie Ames, Ronnie Henley and ten (10) other people. She was unable to explain why she left the definite impression in her direct testimony that he had told her he had borrowed the car from Eddie Ames.

Defendant testified that Ronnie Henley and Eddie Ames were just “riding by” a street intersection in Chattanooga when Ronnie hailed him and asked him to go to Knoxville. He did not know the purpose of the trip until he got there. They had a band, and after they got to the VIP Club he helped them set up. According to the defendant, they made the trip to Knoxville in a 1960 or 1963 black Cadillac limousine that Eddie Ames drove. Defendant said that he slept off and on all the way to Knoxville.

On direct examination he described the circumstances under which he obtained the Oldsmobile as follows:

“Q. What was said to you at the VIP Club that made you feel you had to come home?
A. Well, I didn’t have no money to buy no food or anything, and I was told I would have to have some money—
Q. You’re going to have to speak up. I think some of the—
A. (Interposing) I had to have some money so I could get me something to eat.
Q. How did you go about getting your money?
A. Well, I was outside the club and Jack Donaldson, you know, came up and said that he was informed that he was—
Q. (Interposing) Speak a little bit clearer.
A. He was informed—
MR. BEVIL: (Interposing) Object to what somebody else said.
Q. Did you — where did you get the car? A. Outside the club.
Q. Did anybody — how did you get the keys to the car?
A. They was gave to me.
Q. Do you remember by whom?
A. Jack Donaldson.
Q. Who was Donaldson? Where was he?
A. Outside the club.
Q. Have you known him before?
A. His face, but I didn’t know his name. Q. How did you meet him?
A. Well, we was outside the club and we saw each other, and I introduced myself and then he introduced himself, and we saw — well, we had seen each other before.
Q. Did you ask him for a car to go home?
A. No, sir.
Q. Did he voluntarily give the keys to you?
A. Yes, sir.”

On cross-examination, these further details were furnished:

“Q. If you really wanted to, you could do without eating?
A. Yes, sir.
Q. But instead, you decided to drive to Chattanooga to get some money; is that right?
A. No, sir, I didn’t decide. It was — I went outside the club and this dude named Jack Donaldson came up and said he saw the position that I was in and I could trust him and he was hoping he could trust me that I would bring the car back.
Q. Now, let me — you didn’t know Jackson Donaldson before this night? This was the 6th, right?
A. Well, I have seen him off and on in different places, but I didn’t know his name.
Q. Is he from Chattanooga?
A. I wouldn’t know.
Q. You don’t know where he’s from, but you’ve seen him different places?
A. Yes.
Q. Where’s the last place you saw him, Mr. Turner?
A. The last place I saw him — Charleston, Virginia.
Q. And where was the place before that?
A. In Nashville.
Q. So you’ve seen him in Nashville and Charleston, Virginia, and you saw him this night in Knoxville, he just happened to be there, but you didn’t know his name, you knew his face?
A. Yes.
Q. And this total stranger, in essence, said, ‘Here’s the keys to my car, go to Chattanooga,’ and trusted you with his vehicle; is that what you’re saying?
A. Yes, sir.
Q. You didn’t mention it to him, I believe you said on direct testimony. You didn’t mention it, he just volunteered the ear?
A. Yes, sir.
Q. How did he know you wanted to come to Chattanooga, did you tell him that you were coming to Chattanooga? A. Well, he asked me where I was from. Q. And you told him Chattanooga?
A. Yes, sir.
Q. Did you say, ‘I’d like to go back there and get some money?’
A. No, sir. He said, T hear you need some money,’ and — ”

Defendant testified that he left the VIP Club in the Oldsmobile about 10:30 p. m.

Ronnie Hensley testified that the group went to Knoxville in two cars; that he rode in defendant’s car which he recalled was a “beige or white Datsun or something.” He testified positively that defendant Turner drove that car all the way. He did not know whether defendant owned the car because he did not ask him. He testified that the last time he saw defendant at the VIP Club was just after the band had played the first set which they finished at 1:00 a. m. Saturday morning. He did not know defendant was going to drive a car back to Chattanooga. He did not know Jack Donaldson but he knew a man named Red that defendant said he was going outside to talk to about 1:00 a. m.

II.

The only assignment of error in this Court asserts that the trial judge erred, “[I]n charging the jury that mere possession without explanation raises the presumption of guilt, which presumption is sufficient for conviction.”

The relevant portion of the charge as given follows:

“For a defendant to be found guilty of concealing stolen property, it is necessary for the State to prove, beyond a reasonable doubt, that the defendant concealed the stolen property in Hamilton County, Tennessee, knowing it to have been sto-. len, with the intent to deprive the true owner thereof.
The possession of fruits of the crime recently after its commission raises a pri-ma facie presumption of guilt which may be rebutted by direct evidence, attending circumstances, good character, or otherwise. Possession of recently stolen property is circumstantial evidence from which the jury may draw an inference and the jury may convict on this evidence alone, but it is not bound to do so. It is for the jury to determine what weight is to be given such evidence. The inference is strong or weak according to the character of the property, the nature of the possession, and its proximity to the time of the theft.”

Defendant argues that the charge states, in effect, a conclusive presumption on an essential element of the offense, guilty knowledge; that use of the phrase “the jury may convict on this evidence alone” is contrary to the objective test rule for the determination of guilty knowledge.

A scholarly amicus curiae brief has been filed on behalf of the Tennessee Association of Criminal Defense Lawyers. The principal objective of the brief is stated thus:

“The presumption in Tennessee should be reduced in strength to a permissible inference as it has been in most states and all federal jurisdictions and so charged to the jury in order to avoid the constitutional problems which arise where a presumption such as the one at issue conflicts directly with the more fundamental presumption of innocence.”

In Bush and Bolton, we have eliminated any vestige of conclusiveness in the application of the presumption or inference whether the fact sought to be inferred is guilty knowledge that the property was stolen or that the possessor was the thief. In that opinion, we believe that we have modified the use and application of the inference so that it will conform fully with the requirements of Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), and prior United States Supreme Court cases discussed therein.

III.

We disagree with the defendant’s contention that the charge given required the jury to draw a conclusive presumption. Following the quoted portion of the charge, the trial judge instructed the jury fully and correctly on the law of circumstantial evidence, the presumption of innocence, the reasonable doubt standard, and made it clear that the burden of proof beyond a reasonable doubt remained upon the State throughout the trial. In our opinion the trial judge charged the inference in permissive terms — “may draw an inference” and “but it is not bound to do so.” It is for the jury to determine what weight is to be given such evidence.”

We have suggested that the charge given by the trial judge in Barnes be used as a model for instructions in cases involving the inference that may be drawn from proof of possession of recently stolen property. However, it is not per se prejudicial error to depart from the exact language of that instruction.

The jury did not believe defendant’s explanation of how he obtained possession of the Oldsmobile. We are of the opinion that his explanation was contradictory to the accumulated common experience of mankind and completely bereft of credibility. The respects wherein the trial court’s instruction falls short of that given in Barnes, we find to be harmless error beyond a reasonable doubt in this case.

Affirmed.

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


author: COOPER, Chief Justice.

text:
    Mrs. Dean BROWDER, Petitioner-Respondent, Glen Gray, Respondent, v. James PETTIGREW, d/b/a Pettigrew Motor Company, Respondent, Ford Motor Company, Respondent-Petitioner.
    Supreme Court of Tennessee.
    Aug. 30, 1976.

      Lloyd Tatum, Henderson, for petitioner-respondent Browder.
    Sidney W. Gilreath, Patricia N. Recinc-har, Knoxville, for amicus curiae The Tenn. Trial Lawyers Ass’n.
    W. R. Menzies, Jr., Menzies, Rainey and Kizer, Jackson, for respondent Pettigrew.
    Thomas P. Johnston, Armstrong, Allen, Braden, Goodman, McBride & Prewitt, Memphis, for respondent-petitioner Ford Motor Co.
    David R. Farmer, Waldrop, Hall, Tomlin & Farmer, Jackson, for respondent Gray.
   OPINION

COOPER, Chief Justice.

These are products liability actions arising out of an automobile accident which occurred on March 24, 1971, on U.S. Highway 64 in McNairy County, Tennessee. Petitioner, Mrs. Dean Browder, filed a complaint against the Ford Motor Company and a retail Ford dealer, James Pettigrew, d/b/a Pettigrew Motor Company, alleging that she had sustained personal injuries in a one-car accident caused by the collapse of the A-frame supporting the right front wheel of the 1971 model Mach I Mustang automobile in which she was riding as a passenger. The complaint charges the defendants with negligence, expressly relying on the doctrine of res ipsa loquitur; breach of express and implied warranties; strict liability in tort; and tortious misrepresentation based on public advertising.

Glen Gray, the owner of the automobile involved in the accident, also filed an action against Ford Motor Company and James Pettigrew to recover for damages to his automobile.

The actions were consolidated for trial. At the close of plaintiffs’ proof, the trial judge directed verdicts in favor of the defendants, Pettigrew and Ford Motor Company and dismissed both actions.

The Court of Appeals concluded from its review of the evidence that the plaintiffs had failed “to prove a defect in the vehicle which render[ed] it unreasonably dangerous to the user” and affirmed the trial judge’s action in directing verdicts on the several theories of liability, except for the claims against Ford Motor Company predicated on the doctrine of res ipsa loquitur, which were reversed and remanded for trial.

This court granted the petitions for cer-tiorari filed by Mrs. Browder and the Ford Motor Company to consider:

(1) the apparent inconsistency in the granting of a new trial on the claims for damages predicated on the doctrine of res ipsa loquitur while, at the same time affirming the directed verdicts on the other theories of liability; and

(2) whether there is material evidence in the record which requires the submission of the actions to the jury under any of the theories of liability plead.

Counsel for all parties take the position that the action of the Court of Appeals in remanding the actions for trial on the issue of negligence under the doctrine of res ipsa loquitur is inconsistent with its action in directing a verdict for the defendants on the other issues. Of course, counsel for Mrs. Browder insists that a new trial should be granted on all theories of liability, while counsel for the defendants is of the opinion that a verdict should have been directed for the defendants on all theories.

We agree with counsel that in a products liability action in which recovery is sought under the theory of negligence, the plaintiff must establish the existence of a defect in the product just as he does in an action where recovery is sought under the strict liability theory or for breach of warranty, either express or implied. See Hasson v. Ford Motor Company, 51 Cal.App.3d 104, 123 Cal.Rptr. 798 (1975); cf. MacPherson v. Buick Motor Company, 217 N.Y. 382, 111 N.E. 1050 (1916). The only significant difference is that under the negligence theory the plaintiff has the additional burden of proving that the defective condition of the product was the result of negligence in the manufacturing process or that the manufacturer or seller knew or should have known of the defective condition. Balido v. Improved Mach., Inc., 29 Cal.App.3d 633, 105 Cal.Rptr. 890 (1972); Keeton, Products Liability — Some Observations about Allocation of Risks, 64 Mich.L.Rev. 1329 (1966).

Greco v. Bucciconi Eng. Co., 283 F.Supp. 978 (W.D.Pa.1967), affirmed, 407 F.2d 87 (3d Cir. 1969) suggests that while proof of a malfunction alone should be sufficient under the strict liability and warranty theories in a products liability case, a higher standard of specificity of proof of defect is required in order to recover under the negligence theory. Noting that the primary focus in a negligence action is defendant’s conduct and duty of due care, the court concluded that “[i]t is vital to trace the injury to some specific error in construction or design of the machinery to determine whether” (id. at 982) the defect could have been avoided by exercise of reasonable care.

The doctrine of res ipsa loquitur is not a substitute for proof of defect. The correct application of the doctrine in a products liability case is set forth in Mosier v. American Motors Corp., 303 F.Supp. 44 (S.D.Tex.1967), affirmed 414 F.2d 34 (5th Cir. 1969), as follows:

“If there is sufficient evidence of causation, res ipsa loquitur may be invoked to supply a reasonable inference of negligence.” (Id. at 50).
“When sufficient evidence has been adduced by Plaintiff to show that injury resulted from a defect in the product, the evidence must also justify the finding that the defect was probably present when the product left Defendant’s control; and such defect was of a nature and kind that would not ordinarily be present in the instrumentality at the time of delivery by the manufacturer in the absence of negligence.” (Id. at 51) (emphasis added).

It follows then that if, as found by the Court of Appeals, plaintiffs failed “to prove a defect in the vehicle which rendered it unreasonably dangerous to the user,” there could be no recovery under the theory of res ipsa loquitur, and that a verdict should have been directed for defendants on this theory of liability as it was on the others where proof of a defect in the automobile was a material element of the cause of action. Conversely, if evidence was introduced from which a jury reasonably could find a defect in the Mustang Mach I which proximately caused the one-car accident and resulting injuries and damages, the action of Mrs. Browder should have been submitted to the jury on the several theories plead by her, not just under the theory of res ipsa loquitur.

The question then is: Is there material evidence in the record to show that the automobile was defective at the time it left the control of the defendants against whom recovery is sought, and that the defective condition proximately caused the injury to plaintiffs. See Restatement (Second) of Torts § 402A; Ford Motor Company v. Lonon, 217 Tenn. 400, 398 S.W.2d 240 (1966); Olney v. Beaman Bottling Co., 220 Tenn. 459, 418 S.W.2d 430 (1967).

In reviewing the evidence introduced on trial of the actions, counsel for the parties and for the amicus curiae discuss extensively the proposition of whether a defect in a product can be proven by circumstantial evidence. The discussion was precipitated by the statement in the opinion of the Court of Appeals that a defect could not be “inferred solely from the circumstances surrounding the incident which resulted in damages to the plaintiffs.” We do not interpret this statement, when read in context, to stand for the proposition that a defect in a product can never be shown by circumstantial evidence, but for the proposition that the circumstances surrounding the accident in this case were insufficient to establish a defect in the automobile. However, to clear up any possible misunderstanding, we adhere to the body of law which holds that a defect in a product, as well as any other material fact, may be proven by direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. See Phillips v. Newport, 28 Tenn.App. 187, 187 S.W.2d 965 (1945); Elmore v. American Motors Corp., 70 Cal.2d 578, 75 Cal.Rptr. 652, 451 P.2d 84 (1965); Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168 (1964): W. Prosser, The Law of Torts § 103, at 671-676.

The following observations by the court in Phillips v. Newport, supra, outline the standard to be applied in reviewing a directed verdict in a case based on circumstantial evidence:

“Any fact may be proved by direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. In civil cases facts are proved by a preponderance of the evidence. If unequal conflicting probabilities, or unequal inconsistent theories are shown by the evidence; or if minds of reasonable men might differ from the proved facts as to whether the conflicting probabilities, or inconsistent theories, are equally supported by the evidence, the case must go to the jury. . . .” (Id. 287 Tenn.App. at 202, 187 S.W.2d at 971) (emphasis added).
“But in considering whether the proved facts and circumstances give equal support to the inconsistent theories of plaintiff and defendant, or whether equal probabilities exist in relation to such theories, upon a motion to direct a verdict for defendant, the court must be governed by the general fundamental rule in regard to directing verdicts, to-wit: if the minds of reasonable men must reach a conclusion adverse to plaintiff, from all the facts and circumstances shown, upon an issue which is fatal to plaintiff’s cause of action, the court should hold as a matter of law that plaintiff has not made out his case, and direct a verdict for defendant.” (Id.)

Finally, the court frames the question posed by a circumstantial case in this manner: “. . . do the proved facts and circumstances equally support the inconsistent theories of the plaintiffs and defendants . . . ?” (Id. at 203, 187 S.W.2d at 971). If reasonable men might differ on this question, the case must go to the jury.

In Scanlon v. General Motors Corp., 65 N.J. 582, 326 A.2d 673 (1974), it was pointed out that:

“A product is defective if it is not fit for the ordinary purposes for which such articles are sold and used . . . [citations omitted] Establishing this element requires only proof, in a general sense and as understood by a layman, that ‘something was wrong’ with the product. As a rule the mere occurrence of an accident is not sufficient to establish that the product was not fit for ordinary purposes. However, additional circumstantial evidence, such as proof of proper use, handling or operation of the product and the nature of the malfunction, may be enough to satisfy the requirement that something was wrong with it. [Citations omitted]. Further, a defective condition can also be proven by the testimony of an expert who has examined the product or who offers an opinion on the products design.” (Id. at 677-78).

In these actions James Pettigrew testified the Mustang Mach I automobile involved in the accident was in the same condition when sold to the Grays as it was when he got it from Ford Motor Company. He further testified that he advertised Mustang automobiles as being good cars and that Ford Motor Company had warranted to him that the automobile was a good car and good for use on the highway.

The Grays testified that they relied on advertising by Ford Motor Company and by Pettigrew in buying the automobile. They also testified they had not had any trouble with the automobile during the two-to-three week period they had owned it, and that the automobile had not been damaged in any way before the accident of March 24, 1971.

At the time of the accident, Nancy Gray was driving the automobile and her mother, Mrs. Browder, was a passenger. Mrs. Browder was holding her infant grandchild in her lap. Both Nancy Gray and Mrs. Browder testified the steering wheel of the automobile suddenly began vibrating, that the vibration was followed immediately by a “dropping sensation,” which Mrs. Gray described as being similar to driving off a curb, and that the automobile “fish-tailed” out of control so that the rear of the automobile struck a culvert which was located some five feet from the paved portion of the highway. Both Mrs. Gray and Mrs. Browder testified the front part of the automobile never left the pavement and never struck any object.

Mrs. Gray examined the automobile immediately after the accident and found, according to her, that the right front wheel was tilted sharply, but was not laying flat on the ground.

Rod Province, who repaired the automobile, testified that the right lower control arm was bent in a “V” straight down toward the ground, and the rear part of the car was damaged. He also found that the right front wheel was scratched as though it had been down on the pavement, but that the automobile was not otherwise damaged. Without objection, Mr. Province was permitted to express the opinion that the damage to the lower control arm could not have been caused by an impact without causing damage to parts of the automobile and/or assembly other than those repaired by him.

Hugh Daly, an engineer for Ford Motor Company, testified that under normal operating conditions there is some stress on the lower control arm, but that it does not support the weight of the automobile. According to Mr. Daly, “the wheel is mounted to [a] spindle and the wheel is resting on the ground and the weight is transferred up through the spindle, up through the top of the spindle to the upper control arm and up through the top of the frame at this particular point supported by the coil springs on the top side.” Mr. Daly testified that he had examined the wheel assembly from the Mustang Mach I automobile and had concluded that a sideways or lateral force had been exerted to the bottom of the wheel and that it caused substantial damage to the lower control arm and front wheel, and also damage to the upper control arm, strut, and stabilizer. Mr. Daly further testified that the damage was such as would be caused if the right front wheel of the automobile was cut sharply to the left and, while cut, had struck a low concrete culvert. He also testified that he found particles of concrete in the wheel when it was inspected in the laboratory.

When the above evidence is considered in the light most favorable to the plaintiffs, as we are required to do in reviewing judgments directing verdicts for the defendants, we think the jury reasonably could find that the accident causing plaintiffs’ injuries and damages was proximately caused by a defective lower support arm. There is evidence that the automobile, on the day of the accident, was in the same condition it was in when it left Ford Motor Company and when it was sold by Pettigrew to the Grays. The testimony of Mrs. Gray and Mrs. Browder negated driver negligence and improper handling or use of the automobile as possible causes of the accident, thereby creating the inference that the support arm failed under normal use and that the failure caused the accident. The inference was buttressed by the testimony of Mr. Province that the nature and extent of the damage to the automobile eliminated an external blow as a cause. The testimony of the expert, Mr. Daly, though persuasive, did no more than raise the contradictory inference that the accident caused the damage to the lower support arm which plaintiffs’ testimony suggests was defective before the accident. A contradiction which, under the rules, must be resolved by the jury.

Accordingly, the judgment of the Court of Appeals reversing the trial court and remanding for trial the actions brought by Mrs. Browder and Glen Gray under the doctrine of res ipsa loquitur is sustained. The judgment of the Court of Appeals sustaining directed verdicts for defendants and against Mrs. Browder on the issues of strict liability, warranty and misrepresentation— being based on the erroneous proposition that there was no proof of a defect in the automobile when it left the control of the defendant, which proximately caused the action, — is reversed and remanded for new trial. Costs of the appeal are adjudged against the defendants, James Pettigrew, d/b/a Pettigrew Motor Company, and Ford Motor Company. ■

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

      . The plaintiff Browder also sought damages from Nancy Gray and Glen Gray, the driver and owner of the automobile involved in the accident, alleging that the accident was proximately caused by the negligence of Nancy Gray, as agent of her husband, in the operation of the automobile. The action against the Grays was nonsuited.

      . Recovery of damages by Gray was sought on the same theories as alleged in the Browder action against Ford Motor Company and Petti-grew. However, a nonsuit was taken in the action against Ford Motor Company on the charges of “breach of express warranty and misrepresentation,” and in the action against Pettigrew on the charges of “breach of implied or express warranties and misrepresentation.”

      . Glen Gray did not file a petition for certiorari.


author: BROCK, Justice.

text:
    Estelle S. Buckner BAGGETT, etc., et al., Petitioner, v. Mary M. Sharplin BAGGETT, Respondent.
    Supreme Court of Tennessee.
    Aug. 30, 1976.

      Doyle Richardson, G. Nelson Forrester, Henry, McCord, Forrester & Richardson, Tullahoma, Boston & Weatherford, Law-renceburg, for petitioner.
    Joe L. Finley, Jr., Sparta, for respondent.
   OPINION

BROCK, Justice.

This is a proceeding to set aside a divorce decree for lack of jurisdiction. The primary question presented is whether or not the respondent, defendant in the divorce action, was denied due process of law in the divorce ease by the failure of the court and her husband to forward to her at her last known address, she being a non-resident of the State of Tennessee at the time, a notice of the filing of the divorce petition, in addition to the customary service of process by publication in a local Tennessee newspaper.

The trial court denied relief, holding that in a divorce proceeding against a non-resident defendant the law does not require, in addition to the service of process by publication in a newspaper, the mailing to the non-resident defendant’s last known address of a notice of the filing of suit. The Court of Appeals reversed, holding that under the facts of this case and under the law as declared in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Walker v. Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965), the respondent had been denied due process of law in the divorce proceeding because of the failure of the husband to disclose to the clerk of the court her last known address and the failure of the court, through the clerk, to forward a notice of the filing of the divorce action to her at such address. Accordingly, it was decreed that the divorce decree be vacated.

Mary Baggett, the plaintiff in the trial court and the respondent in this Court, was the lawful wife of Javin Paul Baggett, now deceased. Mr. Baggett filed a divorce action against her in the Chancery Court of Coffee County, Tennessee, on August 12, 1969. He stated in his complaint that Mary Baggett was a non-resident of Tennessee “and resides in Miami Beach, Florida.” Both lower courts have found that at the time he filed his complaint he either knew or could have easily ascertained the mailing address of Mary Baggett. This concurrent finding is, of course, binding upon this Court.

Further, it is admitted by petitioner in the petition for certiorari in this Court that “no copy of the notice was mailed to Mrs. Baggett by the Clerk and Master.”

The only attempt to give the defendant notice of the filing of this suit in the divorce action was the customary publication of notice in a Coffee County newspaper as provided by T.C.A. § 21-218. Mary Bag-gett, the defendant in the divorce action, having no knowledge of the pendency of the suit against her, failed to answer within the time required by law, with the result that a pro confesso and decree of divorce was rendered against her on September 27, 1969.

Following his divorce, Javin Paul Baggett married the petitioner, Estelle Baggett, on October 11, 1969. Shortly thereafter, on November 1,1969, Javin Paul Baggett died. Mary Baggett had no notice or knowledge of the divorce action against her until April, 1970. On October 24, 1972, she filed the instant proceeding against Estelle Baggett, the second wife and petitioner here.

The first issue to be resolved is whether or not the plaintiff has a justicia-ble interest in setting aside the decree of divorce considering the fact that her husband died, thus dissolving the marriage relation, prior to the institution of this suit. The general rule is that an application to vacate a decree of divorce does not lie after the death of a party where the surviving spouse has no property interests which were adversely affected by the divorce decree, since death itself severs the marital relation and the only object to be accomplished by the vacation of the decree would be sentimental. Such is the rule in this State as declared by this Court in Rose v. Rose, 176 Tenn. 680, 146 S.W.2d 773 (1940).

But, when the decree of divorce adversely affects property interests of the surviving spouse, the death of the other spouse does not defeat the right of the surviving spouse or his or her representative to institute vacation proceedings. This is permitted, not for the purpose of continuing the controversy regarding the right to a divorce itself, but to determine whether or not the surviving spouse has been deprived of property interests by reason of the change in his or her marital status brought about by the divorce decree. The action is considered to involve only the property interests. Rose v. Rose, supra. Thus, this Court in the Rose case said:

“We concur in an expression of the Supreme Court of Iowa in a case like this that ‘The court will not, for the mere purpose of satisfying a sentiment, inquire which is the widow of the deceased. But where some property right hinges on the question, the past status of these parties may become the subject of judicial investigation.’ ”

Property interests deemed to be sufficient within the meaning of the foregoing rule have been held to be those interests of which the surviving spouse has been wrongly deprived by the divorce, including dower, the right to a distributive share in the decedent’s estate, and the right which the survivor, if not divorced, would have had, after the death of the plaintiff in the divorce action, to a pension, benefits of a surviving spouse under the Social Security laws, or benefits under a Workmen’s Compensation law. Lindley v. Lindley, 274 Ala. 570, 150 So.2d 746 (1963); Rivieccio v. Bothan, 27 Cal.2d 621, 165 P.2d 677 (1946); Board of Trustees of Fireman's Relief & Pension Fund v. Cotton, 208 Okl. 421, 256 P.2d 802 (1953).

In the instant case, Mary Baggett asserts that the divorce decree is depriving her of Veterans’ benefits, especially medical care, since her entitlement to these benefits was dependent upon her status as Javin Paul Baggett’s wife and, subsequently, as his widow. See 10 U.S.C. § 1072(2), 10 U.S.C. § 1072(2)(A), 10 U.S.C. § 1072(2)(B). This assertion is not disputed by the petitioner, Estelle Baggett. That statutory entitlements such as Veterans’ benefits constitute “property” entitled to the protection of the Fourteenth Amendment was held in Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970), wherein the Supreme Court, with regard to the termination of welfare benefits, said:

“Such benefits are a matter of statutory entitlement for persons qualified to receive them. Their termination involves state action that adjudicates important rights. The constitutional challenge cannot be answered by an argument that public assistance benefits are ‘a “privilege” and not a “right.” ’ ”

We hold that the Veterans’ benefits to which Mary Baggett would be entitled as the widow of Javin Paul Baggett constitute a sufficient property interest to entitle her to maintain this proceeding attacking the validity of the divorce decree.

The petitioner’s reliance upon Rose v. Rose, supra, and Graham v. Graham, 209 Tenn. 272, 352 S.W.2d 445 (1961), is misplaced. Both were cases in which the first wife brought a proceeding against the second wife seeking to vacate a decree of divorce obtained by the deceased husband. In neither case was there any property located within the State of Tennessee over which the court could acquire jurisdiction; and, furthermore, in each case the defendant second wife was a non-resident of Tennessee over whom the Court could not acquire in personam jurisdiction. Consequently, the actions failed for lack of jurisdiction of the Court. In the instant case, the defendant second wife is a resident of Tennessee upon whom personal service of process has been had, giving the Court jurisdiction of the cause.

Because the decision of the U.S. Supreme Court in Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962), in our view, controls our determination of the issue of the adequacy of notice to Mary Baggett in the divorce case, we quote from that opinion:

“We hold that the newspaper publications and posted notices in the circumstances of this case did not measure up to the quality of notice which the Due Process Clause of the Fourteenth Amendment requires.
“ ‘An elementary and fundamental requirement of due process in any proceeding which is to be afforded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ (Citations omitted.) Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865. . . .
“As was emphasized in Mullane, the requirement that parties be notified of proceedings affecting their legally protected interests is obviously a vital corollary to one of the most fundamental requisites of due process — the right to be heard. ‘This right * * * has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.’ (Citation omitted.) The Court recognized the practical impossibility of giving personal notice in some cases, such as those involving missing or unknown persons. But the inadequacies of ‘notice’ by publication were described in words that bear repeating here:
“ ‘Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper’s normal circulation the odds that the information will never reach him are large indeed. The chance of actual notice is further reduced when as here the notice required does not even name those whose attention it is supposed to attract, and does not inform acquaintances who might call it to attention.’ (Citation omitted.)
“The general rule that emerges from the Mullane case is that notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable and whose legally protected interests are directly affected by the proceedings in question. ‘Where the names and post office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.’ ” (Citation omitted.) 83 S.Ct. at 282.

Accord Walker v. Hutchinson, supra; Armstrong v. Manzo, supra; Burden v. Burden, 44 Tenn.App. 312, 313 S.W.2d 566 (1957), cert. denied (1958).

Consequently, we hold that the failure of the Chancery Court in the divorce case to direct a notice of the divorce proceeding to Mary Baggett at her last known mailing address in Miami, Florida, deprived her of the due process right to receive notice and have an opportunity to be heard, since, as found by both lower courts, her husband, the plaintiff in the divorce action, knew or easily could have ascertained her mailing address in Miami.

To the extent that T.C.A. § 21 — 218 may be considered to relieve the Court of the obligation to give such, notice to a nonresident defendant whose last known place of residence is known or can be ascertained upon inquiry, said statute is in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States and void. Likewise, to the extent that Sturdavant v. Sturdavant, 28 Tenn.App. 273, 189 S.W.2d 410 (1944), holds to the contrary it should no longer be considered as authority in this State.

We, therefore, conclude that the decree of the Court of Appeals should be affirmed and that the decree of divorce entered in Cause No. 434 in the Chancery Court of Tennessee in and for the County of Coffee, styled: Javin Paul Baggett, Complainant v. Mary M. Baggett, Defendant, is invalid for failure of the court to acquire jurisdiction therein over the defendant, Mary M. Bag-gett, and should be vacated. Costs incurred in this Court are assessed against petitioner, Estelle Buckner Baggett.

COOPER, C. J., and FONES and HARBI-SON, JJ., concur.

HENRY, J., not participating.

      . T.C.A. § 36-805, now makes mandatory that the complaint for divorce state the address of the defendant and requires dismissal of complaints which do not contain such information “unless it can be shown to the satisfaction of the court that such information could not be obtained by the . . petitioner by exercising due diligence.”


text:
    Edwin PHILLIPS et al., Appellants, v. PITTSBURGH CONSOLIDATED COAL COMPANY et al., Appellees. Edwin PHILLIPS et al., Appellants, v. PITTSBURGH CONSOLIDATED COAL COMPANY et al., Appellees.
    Supreme Court of Tennessee.
    Sept. 7, 1976.

      J. Michael Lain, Oak Ridge, for appellants.
    Sam F. Fowler, Jr., Fowler, Rowntree, Fowler & Robertson, Knoxville, for appel-lees.
   BROCK, Justice.

The two captioned causes were filed, one in Campbell County and the other in adjoining Anderson County, seeking a declaratory judgment and other relief respecting a tract of land which is situated astride the county line. The plaintiffs, appellants in this Court, alleged that they are the grandchildren and great-grandchildren, being the heirs at law, of James and Tilitha Phillips who, it is alleged, owned the land in question as tenants in common with the predecessors in title of the defendants. The defendants filed an answer followed by a motion for judgment on the pleadings which the trial court treated as a motion for summary judgment. This motion for summary judgment was granted by the trial court and the complaint was dismissed. From the order of dismissal, appellants seek review in this Court.

The summary judgment of the trial court was based upon the pleadings, a written stipulation of the parties, through counsel, that “none of the plaintiffs are under 21 years of age or are of unsound mind”; that “none of the plaintiffs or their predecessors in title have paid taxes on the parcels described in paragraph 3 above for more than 20 years”; and that the defendants and their predecessors in title have paid the taxes on the property in dispute for more than 20 years.

The only ground stated in the motion for summary judgment and the ground upon which said summary judgment for the defendant was granted is that the plaintiffs and their predecessors in title have not paid state and county taxes upon the land in dispute for a period of more than 20 years and, therefore, cannot maintain this action because barred by T.C.A. § 28-210 which provides:

“Action barred by nonpayment of taxes. —Any person having any claim to real estate or land of any kind, or to any legal or equitable interest therein, the same having been subject to assessment for state and county taxes, who and those through whom he claims have failed to have the same assessed and to pay any state and county taxes thereon for a period of more than twenty (20) years, shall be forever barred from bringing any action in law or in equity to recover the same, or to recover any rents or profits therefrom in any of the courts of this state; provided, that this section shall not apply to persons under twenty-one (21) years of age or to persons of unsound mind if suit shall be brought by them, or any one claiming through them, within three (3) years after the removal of such disability.”

After the summary judgment was granted by the trial court, the plaintiffs filed a petition to rehear in which they sought relief from that part of the stipulation which states that none of the plaintiffs were under 21 years of age or of unsound mind. They alleged, supported by an affidavit, that since the suit was filed two of the original plaintiffs, Jasper Byrge and Ely Byrge, had died leaving children and heirs under the age of 18 years. The failure of the trial court to grant relief from the stipulation for the reason alleged by the plaintiffs constitutes one of the assignments of error in this Court. This assignment is without merit. The above-quoted statute is tolled by the infancy of the landowner only during the 20 year period in which the taxes are not paid; once the statutory period of 20 years has run, the fact that a landowner dies leaving heirs who are disabled by infancy or unsound mind is of no consequence in applying the statute. See Ferguson v. Prince, 136 Tenn. 543, 190 S.W. 548 (1916).

The other issue presented by this appeal is whether or not this case, considering the complaint, answer and the stipulations, is an appropriate one for the rendition of a summary judgment. A summary judgment can be granted only when the pleadings, stipulations, and affidavits, if any, “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” T.R.C.P. 56.03. Having reviewed the pleadings and the stipulation in this case, we are constrained to hold that this was not a proper case for rendering a summary judgment.

As noted above, the defendants and the trial court relied completely upon the stipulated fact that the plaintiffs and their predecessors in title had not paid state and county taxes on the land in question for more than 20 years. Thus, it was concluded that the plaintiffs’ suit was barred by T.C.A. § 28-210, above-quoted. It is our conclusion, however, that this statute does not bar a suit by one tenant in common against another tenant in common who has paid such taxes unless the plaintiff has been disseised or ousted by the defendant. See Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695 (1956); Memphis Housing Authority v. Mahoney, 50 Tenn.App. 117, 359 S.W.2d 851 (1962). Without such disseisin or ouster, the payment of taxes by the defendant tenant in common would inure to the benefit of the plaintiff tenant in common, thereby preventing the bar of the statute.

It is obvious, therefore, that whether or not the plaintiffs are tenants in common with the defendants and, if so, whether there has been a disseisin or ouster of plaintiffs or their predecessor in title followed by twenty years of their failure to pay taxes are crucial facts in this case. The stipulation filed does not cover these points nor are there any affidavits to establish them. Moreover, whether or not the plaintiffs and defendants are tenants in common is a fact which is disputed by the pleadings. The plaintiffs allege in the complaint that their predecessors in title, James B. and Tilitha Phillips, were tenants in common of the surface rights in the land in question with Ida Hornsby, J. Fowler and G. J. Sawyer, the predecessors in title of the defendants; that Hornsby, Fowler and Sawyer, transferred their interest to the Red Oak Lumber Company and eventually the defendants acquired this interest of Hornsby, et al.; and that “the heirs of James B. Phillips and Tilitha Jane Phillips own the surface rights in the land in question as tenants in common with the defendants,” one-third (½) interest being owned by the plaintiffs and two-thirds (⅜) interest by the defendants. On the other hand, it is alleged in the answer that “it is denied that James B. and Tilitha J. Phillips were tenants in common of any of the surface rights of said property at the time said property was purchased by the defendant, or at any time during which defendant has owned said property.” Further, the answer denies that the plaintiffs own a ⅛ interest or any interest in the property in question.

Because the record upon which the summary judgment was based presented a genuine issue as to a material fact, to-wit: whether or not plaintiffs and defendants are tenants in common, we are of the opinion that the trial court erred in sustaining the defendants’ motion for summary judgment and dismissing the complaint.

Accordingly, the decree of the Chancery Court is reversed and this cause remanded for further hearing consistent with this opinion. Costs incurred in this Court will be borne by the appellees.

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