author: FONES, Chief Justice. FONES, Chief Justice.

text:
    Kenneth E. McINTURFF, Petitioner-Plaintiff, v. R. L. WHITE, Milbum Rice, Seaboard Coast Line Railroad Company and Louisville and Nashville Railroad Co. d/b/a Clinchfield Railroad Company, Respondents-Defendants.
    Supreme Court of Tennessee.
    Jan. 5, 1976.
    Rehearing Denied March 8, 1976.

      Lodge Evans, Roy C. Nelson, Allen & Nelson, Elizabethton, for petitioner-plaintiff.
    H. Dennis Erwin, Erwin, Thomas E. Mitchell, Johnson City, for respondents-defendants.
   OPINION

FONES, Chief Justice.

Plaintiff Mclnturff sued the railroad companies, three security officers, and P. 0. Likens, Chief Engineering Officer, all employees of Clinchfield, for libel and false imprisonment. The first trial in 1971, resulted in a jury verdict for the plaintiff, following which the trial judge directed a verdict for the defendants on the libel count and granted a new trial on the count for false imprisonment. The libel count was based upon a letter written by P. O. Likens, and thus he was not a defendant in the second trial. D. C. Peterson, the Chief Security Officer, died between the first trial and the second trial in 1973, abating the cause of action against him. Thus at the second trial the remaining defendants were the railroad companies and their employees, White and Rice.

The Court of Appeals overruled plaintiff’s assignment of error directed to the action of the trial judge with respect to the first trial. Upon certiorari review we approved that action but granted the writ to consider the action of the Court of Appeals in reversing and dismissing the judgment in favor of the plaintiff at the second trial. The jury returned a verdict against the three railroad companies in the sum of fifty-five thousand ($55,000) dollars compensatory damages and twenty thousand ($20,-000) dollars punitive damages. The jury did not render a verdict against the employees White and Rice. The liability of the railroad companies was predicated solely upon respondeat superior. The trial judge approved the compensatory damages, remitted the punitive damages, entered judgment against the railroad companies and in favor of White and Rice.

Relying upon Loveman Co. v. Bayless, 128 Tenn. 307, 160 S.W. 841 (1913), the Court of Appeals held that failure to find against White and Rice discharged the railroad companies and required dismissal of the lawsuit. In addition, the Court of Appeals found that plaintiff’s testimony at the second trial was grossly contradictory of his testimony at the first trial; that plaintiff was without credibility, and his self-contradictory statements cancelled out his testimony at the second trial. Based upon that finding the Court of Appeals sustained defendant’s assignment of error that there was no evidence to support the verdict and dismissed the suit on that ground also. This, in spite of the fact that the second trial jury did not have before it a single fragment of the testimony of the plaintiff adduced at the first trial.

We disagree with the learned Court of Appeals on both grounds.

I.

The jury first reported a verdict in favor of plaintiff in the amounts stated above but failed to report which defendant or defendants were found liable. The trial judge instructed the jury to return to the jury room and complete the verdict by determining which defendant or defendants were liable to plaintiff. Upon returning the following occurred:

(Jury returns)
“The Court: Has the jury now reached a verdict as to which defendant or defendants you hold against?
“The Foreman: We have, sir.
“The Court: Will you please give me that?
“The Foreman: Clinchfield Railroad, Louisville & Nashville Railroad, Seaboard Coastline.
“The Court: Members of the jury, how do you find as to Milburn Rice and R. L. White?
“The Foreman: We found that they were acting as agents and employees of the company, sir.
“The Court: You found that they were acting as employees and agents of the Clinchfield Railroad Company?
“The Foreman: That’s correct, sir.
“The Court: All right. Do you find, then, against Milburn Rice and R. L. White?
“The Foreman: No, sir.”

The trial judge had the jury return to the jury room and expressed concern that the verdict was inconsistent unless it was based upon the conduct and actions of the deceased Chief Security Officer, Peterson. A colloquy between Court and counsel ensued, resulting in discharge of the jury, without further clarification of the verdict.

Plaintiff and defendants filed motions for a new trial which were overruled, final judgment was entered as described above, and all parties appealed.

In Loveman Co. v. Bayless, supra, two employees and the Loveman Company were sued for false imprisonment, slander and assault and battery. The jury rendered a verdict against the corporation and in favor of its employees. On defendant employer’s appeal asserting that the verdict against it should be set aside because the jury had exonerated its employees who committed the acts complained of, Chief Justice Neil, writing for the court, said:

“To determine these controversies it is essential that we state the rule. It is, in substance, this:
When the master, is sued solely for misfeasance, or nonfeasance, on the part of his servants, being liable for their conduct only under the doctrine of responde-at superior, a verdict, permitted to stand in favor of such servants, either in an action where they are sued with the master, or in a prior action, entitles the master to a discharge from such claimed liability.” 128 Tenn. at 312, 160 S.W. at 842.

The reason for the rule was stated as follows:

“. . . where the servant by whose act the injury occurred is exonerated it is contradictory and absurd to find the master guilty on the same evidence; that the servant’s liability is primary, that of the master secondary, or derivative, depending wholly on his duty to respond for the fault of his servant in the line of his employment, in the nature of a surety-ship; that when the relations between the two are left undisturbed, the master has the right to recover over against the servant for any liability imposed upon the former by the misconduct of the latter, but if the latter be exonerated in an action between him and the injured person, this status is destroyed, and the master prevented from such recovery.” 128 Tenn. at 315, 160 S.W. at 843.

Our subsequent case law has developed the rule that such verdicts are inconsistent and neither the verdict in favor of the employee nor the verdict against the employer can be permitted to stand. The reasoning for that rule is found in Berry v. Foster, 199 Tenn. 352, 287 S.W.2d 16 (1955) wherein Justice Swepston quotes the following from Gray v. Brooklyn Heights R. Go., 175 N.Y. 448, 450, 67 N.E. 899, 900 (1903):

“When, however, the two actions are thus tried together and inconsistent verdicts are rendered, we incline to the view that sound practice requires both verdicts be set aside at once, without attempting, by analysis of the evidence or otherwise, to discover whether either should be allowed to stand. No other course is safe, for it cannot be told with reasonable certainty what facts the jury found.” 199 Tenn. at 356, 287 S.W.2d at 18.

See Milliken v. Smith, 218 Tenn. 665, 405 S.W.2d 475 (1966); Southern Railway Company v. Butts, 214 Tenn. 328, 379 S.W.2d 794 (1964); and Alabama Highway Express, Inc. v. Luster, 51 Tenn.App. 691, 371 S.W.2d 182 (1963).

The learned trial judge had charged the jury that if they found in favor of White and Rice, they must also find in favor of the railroads, but obviously the jury ignored that instruction.

Plaintiff Mclnturff insists that the acts of Peterson, deceased, who was not a defendant at the second trial, were sufficient to support the jury verdict against his employers. He relies upon another rule stated in Loveman Co. v. Bayless, supra, that if there is evidence of liability of the employer on grounds other than the acts of the servant exonerated, the verdict may be sustained.

We are not deterred from an examination of the evidence at the second trial, sufficient to pass upon that contention, for lack of an appropriate assignment of error as was true in Bayless. From a careful review of the evidence in this case we are of the opinion that the actions of Peterson, White and Rice are so interwoven that the plaintiff’s cause of action for false imprisonment must stand or fall upon the acts of the three security officers on the day in question. It is our opinion, that upon the evidence adduced at the second trial, a jury verdict exonerating any one of the three employees would be inconsistent and arbitrary and could not be permitted to stand. On the element of unlawful restraint, plaintiff’s theory relies upon the acts of White and Rice, both armed, allegedly taking him into custody and accompanying him in his own pick-up truck to the railroad offices, their armed presence in and around Peterson’s office and on the trip to Mclnturff’s barn. Peterson was unarmed and although it is not disputed that he was the security officer in charge of the activities of the three railroad employees, plaintiff’s theory and proof would fail as a matter of law, to make out a case of false imprisonment, without the acts of White and Rice, in concert with Peterson.

There is no merit to plaintiff’s contention that independent grounds to support the verdict may rest upon the hearing on the question of discharging plaintiff from his employment with the railroad. The hearing was held in accord with the labor contract and wholly fails to support a cause of action based on false imprisonment.

II.

The Court of Appeals observed that, of necessity, it had read the plaintiff’s testimony at the first trial, preserved by a wayside bill of exceptions, and found it shockingly contradictory to his testimony at the second trial. On the element of unlawful restraint, it was said that the only evidence thereof was the testimony of plaintiff. Applying the principle that self-contradictory statements cancel out the testimony of a witness, the Court of Appeals held that there was no proof upon which the jury could have found for plaintiff. No authority is cited authorizing an appellate court to test the credibility of a witness at a second trial, by use of a wayside bill of exceptions preserving his testimony from the first trial. While acknowledging that normally a jury issue was presented, in the interest of justice, the court felt constrained to go further in this case.

We have carefully examined all of the evidence presented at the second trial and we are unable to find any questions posed to Mclnturff regarding his testimony at the first trial nor the reading of any portion of his prior testimony into the record.

It requires no citation of authority to hold that a jury verdict may not be set aside by an appellate court upon an assignment of error that there is no evidence to support the verdict, based upon alleged contradictory testimony contained in a wayside bill of exceptions, but not offered for impeachment at the second trial.

If contradictory testimony had been presented, a jury verdict approved by the trial judge would have resolved all conflicts in favor of the winning party and the appellate courts would be without authority to weigh the evidence to determine where the preponderance lies or to pass upon the credibility of witnesses. See, e. g., Anderson-Gregory Co. v. Lea, 51 Tenn.App. 612, 370 S.W.2d 934 (1963). Of course, an inconsistent verdict resolves no conflicts and is in law, no verdict at all.

The judgment of the Court of Appeals is reversed and the case is remanded to the Circuit Court of Washington County for a new trial. One half of the costs of this appeal are taxed against plaintiff and one half against defendants.

HENRY and HARBISON, JJ., and HY-DER, Special Justice, concur.

COOPER and BROCK, JJ., not participating.

OPINION ON PETITION TO REHEAR

FONES, Chief Justice.

Defendants’ petition to rehear asserts that we overlooked the rule of law that a master is not liable under the doctrine of respondeat superior unless the servant is liable. Second, it is said that we overlooked the fact that plaintiff’s attorneys affirmatively induced the trial court to accept the jury verdict, and that waiver and estoppel prevent his reliance on the inconsistency in the verdict.

Evidently we failed to make it clear to counsel that the jury verdict was inconsistent, fatally defective, irreconcilable, and no judgment whatever could be pronounced thereon. The reason that is so is that the master is not liable unless the servant is liable where the only basis for liability of the master is the misconduct of the servant, while acting within the scope of employment. But for that rule, the verdict against defendant railroad companies would have been affirmed by this Court.

We were also fully aware of the entire colloquy between the trial judge and counsel for all the parties to this litigation from which defendants seek to charge plaintiff with waiver and estoppel.

Our reasons for the disposition of this case that we have heretofore made and continue to adhere to, with confidence, are well stated by Mr. Justice Creson in Milliken v. Smith, supra:

“The obligation of every jury is summarized in the oath taken by its members to render a true verdict according to the law and the evidence. This applies whether the jury is trying one or more cases. And where it plainly appears from the verdicts returned by a jury that it has not fulfilled this obligation, but acting upon considerations other than those presented in the law and the evidence has returned irreconcilably conflicting verdicts, it is the duty of the trial court to order the jury to consider further with respect to these verdicts, and if it refuses (which we doubt will ever be the case), to order a mistrial, otherwise this Court must reverse.” (Emphasis added) 405 S.W.2d at 477.

Opinions, comments or assurances of counsel, with respect to the efficacy of a jury verdict do not relieve the trial judge of the duty to see that a verdict is returned upon which a valid judgment can be pronounced, or to declare a mistrial. In our view, it would be of equal logic to hold that defendant railroad companies’ silence and acquiescence in the jury verdict precluded setting that verdict aside. Fortunately for said defendants that is not the law.

The petition to rehear is denied.

HENRY and HARBISON, JJ., and RYDER, Special Justice, concur.

COOPER, J., not participating.


source: Caselaw Access Project

author: HARBISON, Justice. BROCK, Justice,

license: Public Domain

text:
    Robert SLATEN, Petitioner, v. EARL CAMPBELL CLINIC HOSPITAL and Campbell Clinic Association, Respondents.
    Supreme Court of Tennessee.
    April 24, 1978.
    Robert J. Shockey, Robert J. Shockey, P. C., Chattanooga, for petitioner.
    W. A. Moody, Nashville, Paul Campbell, Jr., Chattanooga, for respondents.
   OPINION

HARBISON, Justice.

Petitioner sustained severe personal injuries while a patient at the respondent hospital. Petitioner jumped or fell from an unguarded window of his third floor room and received spinal injuries resulting in paraplegia. It is insisted on his behalf that he was suffering from severe mental depression and that he jumped from the hospital window in an attempt to commit suicide. At best, however, this is only one permissible inference which might be drawn from the testimony, since there were no eyewitnesses and the petitioner himself-has no memory of the occurrence.

Joined as a defendant in the trial of the case below was Dr. William C. Dowell, a staff physician of the hospital. At the conclusion of a lengthy trial the jury returned a verdict against the hospital but exonerated Dr. Dowell of all claims of causative negligence which had been asserted against him. Although counsel for petitioner filed a post-trial motion seeking to preserve a right of action against Dr. Dowell, apparently they did not appeal from the action of the trial court in overruling that motion, so that, insofar as we can tell from the record, judgment in favor of Dr. Dowell seems to have become final. If so, it obviously would bar any further proceedings against either Dr. Dowell or against his employer based upon any alleged negligent or improper actions on his part.

The trial judge overruled a motion for new trial filed on behalf of the hospital which alleged, among other things, that the verdict of the jury was inconsistent. On appeal, however, the Court of Appeals sustained that assignment of error and held that, as the case was presented to the jury on the trial record, the verdict was legally inconsistent, the court finding no evidence of any operative or causative negligence on the part of any other hospital personnel than Dr. Dowell. Having held the verdict inconsistent, however, the Court of Appeals went further and dismissed the suit entirely. This Court granted certiorari to give further consideration to the matter.

In our opinion, the analysis of the trial record made by the Court of Appeals is correct, and the verdict was indeed inconsistent in view of the manner and of the theory upon which the case was tried and presented to the jury.

It does not necessarily follow, however, that the suit should have been dismissed by the Court of Appeals as a matter of law at this stage of the proceedings. Ordinarily, when there is an inconsistent verdict, the appropriate procedure is to set it aside and order a new trial. This, of course, cannot be done in the present case as to Dr. Dowell, if in fact the judgment in his favor has become final. Such a situation has been presented in other reported cases, however, and the fact that a complete new trial as to all parties is no longer available has not prevented a new trial as to those parties who appealed and objected to the inconsistent verdict.

Probably the leading case in this state on inconsistent verdicts is Loveman Co. v. Bay-less, 128 Tenn. 307, 160 S.W. 841 (1913). See also International Corp. v. Wood, 8 Tenn.C.C.A. (Higgins) 10 (1918); Howard v. Haven, 198 Tenn. 572, 281 S.W.2d 480 (1955).

Decisions subsequent to Bayless have developed the rule that when inconsistent verdicts are rendered in master-servant and similar cases, neither the verdict in favor of the employee nor the verdict against the employer can be permitted to stand. Berry v. Foster, 199 Tenn. 352, 287 S.W.2d 16 (1955). In the Berry case this Court quoted approvingly from Gray v. Brooklyn Heights Ry., 175 N.Y. 448, 450, 67 N.E. 899, 900 (1903) as follows:

“ ‘When, however, the two actions are thus tried together and inconsistent verdicts are rendered, we incline to the view that sound practice requires both verdicts to be set aside at once, without attempting, by analysis of the evidence or otherwise, to discover whether either should be allowed to stand. No other course is safe, for it cannot be told with reasonable certainty what facts the jury found.’ ” 199 Tenn. at 356, 67 N.E. at 900.

Again, in Milliken v. Smith, 218 Tenn. 665, 405 S.W.2d 475 (1966) this Court stated the rule as follows:

“The obligation of every jury is summarized in the oath taken by its members to render a true verdict according to the law and the evidence. This applies whether the jury is trying one or more cases. And where it plainly appears from the verdicts returned by a jury that it has not fulfilled this obligation, but acting upon considerations other than those presented in the law and the evidence has returned irreconcilably conflicting verdicts, it is the duty of the trial court to order the jury to consider further with respect to these verdicts, and if it refuses (which we doubt will ever be the case), to order a mistrial, otherwise this Court must reverse.” 405 S.W.2d at 477.

See also Southern Ry. v. Butts, 214 Tenn. 328, 379 S.W.2d 794 (1964); Alabama Highway Express, Inc. v. Luster, 51 Tenn.App. 691, 371 S.W.2d 182 (1963).

In both the case of Southern Ry. v. Butts, supra, and in the earlier case of Angel v. McClean, 173 Tenn. 191, 116 S.W.2d 1005 (1938), all of the original parties had not been kept in the case by protective appeals, and judgments in favor of some of them had been permitted to become final. Nevertheless, in each case, the Court found the original verdicts as rendered to have been legally inconsistent and ordered new trials as to the parties remaining in the litigation.

In the case of Mclnturff v. White et aL, Washington Law, released on January 5, 1976, this Court had occasion to deal with the legal effect of inconsistent verdicts, and re-examined many of the cases cited above. Because the problem seems to be a recurring one, we deem it appropriate at this time to direct publication of the opinion in that case, wherein it was pointed out on petition to rehear that when an inconsistent jury verdict, is properly challenged, “no judgment whatever could be pronounced thereon.”

We are of the opinion that these cases are controlling here, and that instead of dismissing the suit, the Court of Appeals should have remanded the case for a new trial as to the respondent hospital. The legal effect of the final judgment in favor of Dr. Dowell, and whether or not it will preclude any effective right of action of the petitioner in further proceedings, are not issues presently before the Court and will have to be dealt with upon the remand. As pointed out in the cases cited above, however, an inconsistent verdict is, in legal theory, a nullity and amounts to no verdict at all when properly attacked. Had the petitioner appealed as to Dr. Dowell, the appellate courts could have granted the petitioner a new trial against him as well as granting a new trial in favor of the hospital on its appeal. On the record before us, however, the only appealing party was the hospital. Its complaint of an inconsistent verdict having been sustained, in legal theory there is no verdict at all against it, and as to it the cause should be remanded for a new trial.

The assignment of error of the petitioner to the action of the Court of Appeals in dismissing the suit entirely is sustained, and the cause is remanded to the trial court for further proceedings consistent herewith. All other assignments of error of the petitioner as well as those assignments preserved by the respondent for review here are overruled. Costs accruing in the appellate courts will be taxed equally to the parties; costs in the trial court will be finally adjudged there.

HENRY, C. J., and COOPER and PONES, JJ., concur.

BROCK, J., dissents.

BROCK, Justice,

dissenting.

I respectfully dissent because I find that there was no inconsistency in the verdict since the plaintiff alleged and proved that employees of the hospital other than Dr. Dowell were guilty of negligence which directly and proximately caused- the plaintiff’s injuries.

I

The issue is primarily a factual one of examining the record to ascertain whether it discloses evidence of negligence on the part of employees and agents of the hospital other than Dr. Dowell upon which the verdict of the jury could be based.

It is clear from an examination of the plaintiff’s complaint that his assertion of liability against the hospital was not confined to acts of negligence on the part of the codefendant, Dr. William C. Dowell. Indeed, he did not assert anywhere in the complaint that Dr. Dowell was the agent, servant or employee of the hospital. Throughout the complaint, Dr. Dowell and the hospital are treated as joint tortfeasors. Moreover, in alleging negligence on the part of the hospital, the complaint refers repeatedly to the latter's servants in the plural rather than the singular. To demonstrate this, I quote excerpts from the complaint as follows:

“The defendant, Campbell Clinic Hospital, their employees and agents, acknowledged his condition of severe depression and suicidal potential at the time of his admission or shortly thereafter. Notwithstanding this knowledge defendants did absolutely nothing to alleviate his depression, nothing to protect him from self-inflicted harm, and nothing relative to psychiatric consultation or help. Ironically, the defendants advised the plaintiff’s family that he didn’t need psychiatric help, for reasons known only to themselves. They placed the plaintiff in a top floor room of the hospital, and with no protection whatsoever, .
“iy
“Plaintiff avers that the defendants, their agents and employees, were negligent in their care and/or lack of care to such plaintiff and failed to meet the standard of care in this area or similar areas for medical and hospital treatment of mentally ill or afflicted patients.
“V
“Plaintiff avers that the defendants ’ lack of care or protection was tantamount to abandonment of the patient.
“VI
“Plaintiff avers both ex delicto and ex contractu that they owed a duty to the plaintiff to give reasonable care and attention for his safety as his mental condition required and to safeguard him against known or reasonably to be appreciated danger to himself due to his mental derangement, and they failed therein. “VII
“Plaintiff further avers that the defendants were negligent in the following respects:
“1. Accepting the plaintiff as a psychiatric patient when they were unwilling, unequipped or unqualified to render proper treatment.
“2. Failing to treat, in an appropriate and effective medical manner, the plaintiff’s depressive state.
“3. Failing to obtain psychiatric consultation.
“4. Failing to protect their patient from self-inflicted harm when they knew or should have known that such safeguards were necessary.” [Emphasis added.]

Clearly, the plaintiff did not restrict his theory of liability against the hospital to acts of negligence on the part of Dr. Dowell but was relying upon the acts or failure to act of other employees, servants and agents of the hospital who were not sued.

At the time plaintiff received his injuries he was 26 years of age and held a responsible position with an insurance company. He was about to be married and as the wedding day approached he apparently began to feel overwhelmed by the prospect of the solemnities. At the same time he had increased responsibilities and pressures with his work. He experienced insomnia and inability to concentrate, to make simple calculations or to remember names. Finally, on June 30, 1974, having attended a buffet supper in his honor at which he had several drinks, he wrecked his employer’s automobile which caused him to become fearful that he would lose his job.

Although the plaintiff was in good spirits during most of the six months period immediately before his planned wedding for July 13, 1974, on July 2, 1974, he broke his engagement and became depressed and apparently disoriented. His brother, John Slaten, having learned of the plaintiff’s condition from his sister, decided to go to Nashville and bring Bobby, the plaintiff, home to Chattanooga. John found the plaintiff staring at a wall and unable to carry on a conversation. Moreover, considerable time elapsed upon their meeting before the plaintiff indicated that he recognized his brother. John brought the plaintiff to Chattanooga and during the trip the plaintiff manifested extreme nervousness and feelings of worthlessness. The plaintiff indicated that he had considered suicide.

After their arrival in Chattanooga, John Slaten became so concerned about his brother’s health that he decided to hospitalize the plaintiff. Accordingly, John Slaten took the plaintiff to the emergency room of the defendant hospital. Before admission he told the hospital employee there in charge, being either a nurse or Dr. Larry Moorman, a resident physician, that Bobby had been very nervous and depressed, that he had been exhibiting abnormal behavior, that no members of the family were available to watch after Bobby and that he, John, feared that Bobby would attempt suicide.

Dr. Moorman, who was a young resident at another hospital but who also worked part time at the defendant hospital as a resident physician, telephoned Dr. Dowell who was at his residence and off duty and received from him approval to accept the plaintiff as a patient. Someone in the employment of the hospital assigned the plaintiff to a room on the top floor, being the third floor of the hospital, a room which contained an unguarded window looking out over the parking lot of the hospital. The identity of the employee who made this room assignment is not clearly shown in the record, but it is shown that Dr. Dowell did not do so; Dr. Dowell so testified. Plaintiff remained a patient in his room on the third floor of the hospital until he jumped on the morning of July 5.

It was stipulated at the trial that Dr. Moorman was an employee of the defendant hospital and was in charge of the emergency room at the time the plaintiff was admitted.

Dr. Dowell, a specialist in internal medicine, testified that on the night of July 2 he received a telephone call from Dr. Moorman and approved the plaintiff’s admission to the hospital. Dr. Dowell denied that he had been informed by Dr. Moorman on the night of July 2 that the plaintiff had indicated a tendency toward suicide. He testified that Dr. Moorman was the one who “evaluated” the plaintiff as a patient and determined that he should be placed in a room on the third floor of the hospital. He testified that he could not explain why the plaintiff was not placed in a room on the ground floor of the hospital. It is clear from the testimony of Dr. Dowell that he was not the admitting physician but that Dr. Moorman, who consulted with Dr. Do-well, was the admitting physician.

Dr. Dowell explained that he made a brief preliminary examination of the plaintiff on the morning of July 3 and held a more extensive interview later in the day. On these occasions, he did not detect any irrational behavior or loss of contact with reality on the part of the plaintiff. Upon being told that the idea of suicide had occurred to Bobby, Dr. Dowell attempted to explore the subject more thoroughly with the patient but could get no further response. Dr. Dowell arrived at a diagnosis of “secondary situational depression moderately aggravated by recent heavy drinking.” He concluded that the patient was not psychotic and saw no necessity for a psychiatric consultation or for confinement in a psychiatric ward. He testified that on July 3 he dictated an admission note for the plaintiff’s hospital record in which he stated that the plaintiff “has been severely depressed to the point of attempting suicide.” This note of Dr. Dowell, although dictated on July 3,1974, was not transcribed and did not appear in the patient’s hospital record until after the patient had jumped on July 5; such is the testimony of Dr. Nelson as hereinafter set out. Dr. Dowell admitted that it is possible that the reason the plaintiff jumped from his hospital room was his “severe depression,” although an illness of this severity was not apparent to Dr. Do-well at the time he examined the patient. He also testified that it is not the policy of the defendant hospital ordinarily to admit severely depressed patients because proper and suitable facilities to care for such patients are not available at that hospital. He also admitted that the defendant hospital took no protective measures for protecting the plaintiff from the harm which ensued.

Dr. Merrill Nelson, another physician employed by the defendant hospital, also testified. One of the attorneys representing the defendant hospital indicated in argument that there was some question whether Dr. Nelson was employed by the hospital, but the record clearly shows that he was. Thus, the doctor himself testified:

“Q. Where are you employed Sir?
“A. At Campbell Clinic.
“Q. When did you go Campbell Clinic?
“A. 1954.
“Q. You have your own private practice and yet with your practice you also have certain duties in the hospital?
“A. Well, I do read our brain type things, neuro-medicine type hospital related things. I read some of the electrocardiograms. I don’t have a lot of exactly hospital duties as separated from my private practice except for those.
“Q. In your function there, Sir, did you ever have any contact or at any time that you acted as a physician for Robert Slaten?
“A. Yes.
“Q. All right. How did that come about Sir?
“A. I don’t really need the record. I guess I remember well enough. I may ask for it.
“Q. Yes Sir.
“A. Ok. On the 4th of July last year— we have the customary four days a year of letting two of the three of us guys off. One of the guys takes calls. We have three interns. I believe I was off Christmas — it doesn’t matter a whole lot, but I was on the 4th of July. I made rounds on all of the internal medicine patients in the hospital on that date. Mr. Slaten was one of the first. I think I started upon his floor, as a matter of fact.”

Dr. Nelson, as a staff physician of the defendant hospital, assumed the task of treating the plaintiff while Dr. Dowell was away from duty on the 4th of July weekend. He first saw the plaintiff on July 4 while making his rounds in the hospital and found the plaintiff to be “obviously depressed” but coherent. Concerning his examination of the plaintiff, he stated:

“. . . I did spend extra time with him because I could see that he was bothered.”

He testified that the patient did not communicate readily but that he found no evidence of psychosis. He also testified that he had the benefit of Dr. Dowell’s “progress notes” but that these did not contain Dr. Dowell’s dictated but untranscribed note to the effect that the plaintiff had been depressed to the point of attempting suicide which, he stated, did not appear on the chart until Friday, July 5, the day that the plaintiff jumped.

In response to hypothetical questions, Dr. Nelson gave some rather candid testimony which the record shows made a rather strong impression upon the trial judge. Thus, he testified that a patient with symptoms such as the plaintiff had at the time of admission should not have been placed in a third floor room with free access to windows that could be opened; but that if such a patient were placed in such a room, minimal precaution would require that someone be stationed in the room to watch the patient at all times. He explained that he did not recommend a change of the plaintiff’s room because he thought that the plaintiff had improved somewhat and that a change of room might upset him, although he wrote on the plaintiff’s chart that the plaintiff was “still deeply depressed . still rather withdrawn.” He further testified that it is a “well recognized, established medical rule that if you have a severely depressed patient, you must watch out for suicidal tendencies and take appropriate precautions.”

The only psychiatrist who testified in this case was Dr. Phillip Sottong of Chattanooga who was called by the plaintiff. He testified in replying to a hypothetical question, in which he was asked to assume the facts which were known to the staff of the defendant hospital on the night that the plaintiff was admitted as a patient, that the standard of care in the Chattanooga area would dictate that: (1) the defendant hospital, which was without protective facilities, should not have accepted the plaintiff as a patient, (2) if such a patient were accepted by the defendant then “suicide precautions” should be taken, including the keeping of a nurse or member of the family in the room with the patient at all times, denying him access to unguarded windows, (3) that such a patient should not be placed upon the top floor of the hospital as was the plaintiff and (4) that the defendant should have arranged for a psychiatric consultation.

In reply to a hypothetical question assuming as fact the symptoms displayed by the plaintiff in the days just prior to his admission to the defendant hospital, that is, that the patient was suffering from insomnia, obsessive worry about money, unwarranted fear of losing his job, feelings of personal worthlessness, inability to think and speak coherently and who had undergone a dramatic change in his personality and physical behavior, Dr. Sottong testified that it was his medical opinion that the case presented was one of “a rather typical picture of a psychotic depression.” He testified that such a patient is dominated by feelings of hopelessness to the extent that his behavior is not subject to rational direction, although such a patient may not display symptoms of depression all of the time so that it is possible for the observer to be deceived.

Dr. Sottong testified that doctors Dowell and Nelson were specialists in internal medicine and that such specialists, among other things, should be skilled diagnosticians who should be able to identify specialized medical problems and make appropriate referrals to other specialists, including psychiatrists. He testified that the fact that a patient had considered suicide would be extremely important to the physician, although the patient might characterize such thoughts as being foolish. He also testified that the fact that the patient behaves normally, eating and sleeping well, as did the plaintiff, would not reduce the physician’s concern about him if the symptoms herein-above stated also had been displayed.

He explained that the fact that the patient may have been correctly diagnosed as suffering from “situational depression” did not exclude the possibility of “psychotic” depression, since “situational” refers to the cause of depression while “psychotic” refers to the intensity or gravity of the illness. He stated too that “moderately severe depression” could be descriptive of a psychotic depression. He stated also that a psychotic depression could develop suddenly, depending upon the patient and the kind of strain to which he was subjected, so as to precipitate a crisis with very little warning. An impending marriage could create such a strain because “[at] the point of marriage, your whole value system is being put on the line. ...”

II

Viewing the foregoing evidence most favorably to the plaintiff, as we must, I find ample evidence of negligence on the part of employees of the defendant hospital, other than Dr. Dowell, upon which the verdict of the jury and judgment of the trial court may be sustained.

A.

First, there is evidence to sustain a conclusion that the defendant hospital was negligent in accepting the plaintiff as a patient under the circumstances existing. The jury could have concluded that the defendant knew that it did not have adequate facilities for treatment of a severely depressed patient. Such an inference is supported by the testimony of Dr. Dowell and the testimony of Dr. Sottong. That the plaintiff was a severely depressed patient is shown by the testimony of Dr. Sottong and by the entries made in the plaintiff’s hospital record by doctors Dowell and Nelson, e. g., Dr. Dowell’s note that the plaintiff “. . . has been severely depressed to the point of attempting suicide” and Dr. Nelson’s note that plaintiff was “. still deeply depressed . . . still rather withdrawn.”

Moreover, the evidence supports the conclusion that the young resident physician, Dr. Moorman, who was not called as a witness at the trial, is the employee of the defendant hospital who was primarily responsible for the decision to accept the plaintiff as a patient although he did confer by telephone with Dr. Dowell before the plaintiff was admitted. The jury could well have found Dr. Dowell blameless in the admission of plaintiff to the hospital, in that, Dr. Moorman did not convey to Dr. Dowell the full import of the severity of the plaintiff’s illness and the significant history given to him at the emergency room by the plaintiff’s brother, John Slaten, who made it clear to Dr. Moorman that the very reason the plaintiff had been brought to the hospital emergency room was that he had been severely depressed to the point of attempting suicide and that the Slaten family had no one available to watch the plaintiff and protect him from his illness. The duty assumed by the hospital was as much to protect the plaintiff as it was to treat him. Moreover, this duty was one assumed by the hospital, not by Dr. Dowell. The record of admission states that plaintiff was admitted “for observation and medication.”

B.

Secondly, the evidence abundantly supports the conclusion that it was negligence for the plaintiff to be placed in a room on the third floor of the hospital which contained an unguarded window through which the plaintiff jumped three days after his admission and that the decision to place the plaintiff in this room was not made by Dr. Dowell but by Dr. Moorman or some other employee of the defendant hospital. Thus, Dr. Dowell testified as follows:

“Q. . . . Doctor, would you place such an individual on the top floor of your hospital with open access to windows, yes or no?
“A. This patient was placed in the hospital?
“Q. Yes or no, would you answer the question yes or no?
“A. Ordinarily not.
“Q. Now, you may explain.
“A. This patient was put in this room at night before I had ever seen the individual. I had never seen the patient the night he was admitted. He was evaluated by Dr. Larry Moorman who made that determination.” (Emphasis added)

Every physician who testified in this case was of the opinion that a patient with the plaintiff’s symptoms should not have been placed in that third floor room unattended.

C.

Not only could the jury have concluded that it was negligence to place the plaintiff in that room initially, but it also may well have concluded that it was negligence on the part of Dr. Nelson to fail to have the plaintiff moved to a safer room after he examined the plaintiff on July 4 and found him to be “still deeply depressed . still rather withdrawn.”

D.

Next, there is adequate evidence in the record to support the conclusion that, once placed in that third floor room, the defendant should have made certain that a nurse or some member of the plaintiff’s family was available at all times to watch the plaintiff. Dr. Nelson testified to this effect, as did Dr. Dowell and Dr. Sottong. It is'likewise clear from the record that this duty fell upon the hospital rather than Dr. Dowell.

E.

Finally, there is evidence from which the jury could have concluded that the defendant hospital did not afford to the plaintiff proper medical care, e. g., (1) its failure to arrange for a psychiatric consultation with a specialist, (2) its failure to properly administer the medication, Elavil, which had been prescribed by Dr. Moorman for the patient and which acts to alleviate depression and anxiety and (3) the failure of hospital employees to communicate vital information from one to the other, such as the failure to transcribe Dr. Dowell’s note of July 3 that the plaintiff . . has been severely depressed to the point of attempting suicide . . until July 5, the day the plaintiff jumped. It is clear that these failures, these omissions, cannot be laid solely at the door of Dr. Dowell who was not present after July 3; these failures were the failures of nurses, Dr. Nelson and other physicians and employees of the hospital. The record shows that the note of Dr. Dowell dictated on July 3 was made specifically for the purpose of alerting Dr. Nelson and others who would be looking after the plaintiff during Dr. Dowell’s absence to the “possible suicide tendencies of the patient,” and that this cautionary note of Dr. Dowell was not transcribed until too late.

The experienced trial judge gave comprehensive instructions to the jury respecting the relative duties owed by the defendant hospital and by Dr. Dowell to the plaintiff. Pertinent here are the following excerpts from those instructions:

“First of all, with regard to the duties of a hospital, the general rule is that voluntary submission to the authority of a hospital raises an implied obligation on the part of the hospital to give the patient such reasonable care and attention for his safety as his mental and physical condition requires.
“And if he is bereft or deprived of reason and this fact is known by the hospital authorities or in the exercise of ordinary and reasonable care it should be known, the authorities are in duty bound to use reasonable care to prevent an act of violence or injury by or to the patient. “In other words, the rule is that the attending physician and the hospital are required to exercise such reasonable care towards the patient as his known condition may require and the extent and character of this care depends upon the circumstances of each case.
“Now, as I have stated, this is a suit against the Earl Campbell Clinic Hospital and Dr. William C. Dowell, and the plaintiff’s action is based upon negligence.
“Now, in that regard, Dr. Dowell is an employee of the hospital, and if you find against Dr. Dowell, you would have to find against the hospital. The converse, though, is not true. If you found — you could find, and I am not suggesting anything to you — I am simply outlining possibilities — in the event that you found that Dr. Dowell was not guilty of any negligence or breach of the duties imposed upon a physician but you found that other physicians of the hospital or other employees of the hospital were and you found against the hospital, you might find against the hospital and not against Dr. Dowell.
“But that’s entirely up to you as the sole judges of the facts and I am not in any way suggesting anything to you.”

From an examination of the complete charge of the court to the jury, I find no fault with it, nor is any asserted by the defendant. See Thompson v. Methodist Hospital, 211 Tenn. 650, 367 S.W.2d 134 (1962); Rural Education Association v. Anderson, 37 Tenn.App. 209, 261 S.W.2d 151 (1953). It is my conclusion that, consistent with this charge and the evidence above discussed, the jury could with entire consistency find a verdict in favor of the plaintiff and against the hospital and, at the same time, upon the same evidence and under the same charge, find a verdict in favor of Dr. Dowell and against the plaintiff. In short, I conclude that this jury verdict, which was recognized as consistent by the trial judge and approved by him, is responsive to the pleadings, supported by the evidence and consistent with proper jury instructions and, therefore, is not fatally inconsistent, as insisted by the defendant. Accord, Grewe v. Mount Clemens General Hospital, 74 Mich.App. 479, 253 N.W.2d 805 (1977).

This is not a case in which the sole basis for liability of the master is the alleged act of a servant whom the jury has found to be blameless. Here, the plaintiff was placed in the care of the defendant hospital, not of Dr. Dowell, for safekeeping and treatment, or as the admission note recites, “for observation and medication.” There simply is no basis for concluding that the duties thus assumed were to be performed solely by Dr. Dowell. They were duties owed by the hospital and were non-delegable. Rural Education Association v. Anderson, supra.

In my opinion the Court of Appeals erred in reversing the judgment of the trial court and directing a verdict.

I would reverse the judgment of the Court of Appeals and reinstate that of the trial court.

      . Two separate corporations were named as defendants, but it was stipulated at the trial that the Earl Campbell Clinic Hospital and Campbell Clinic Association were for purposes of this litigation to be considered as one entity. Therefore, in this opinion, we shall refer to that single entity as the hospital, a private institution operated for profit.

      . It should be noted here that Dr. Moorman was not called as a witness in this case, although it appears that he was available.


author: BROCK, Justice.

text:
    STATE of Tennessee, Petitioner, v. Nancy Mills WELCH, Marsha Schmidt, Catherine Edwards and Dirk Swanson, Respondents.
    Supreme Court of Tennessee.
    May 8, 1978.
    William 0. Kelly, Asst. Atty. Gen., Nashville, for petitioner; Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel.
    J. Stanley Rogers, Manchester, Robert T. Knott, Albuquerque, N. M., Joseph Abraham, Jr., El Paso, Tex., for respondents.
   OPINION

BROCK, Justice.

The question presented in this criminal case is whether the trial judge, • prior to denying the defendants’ motions for suspended sentences, should have ordered a probation officer to make pre-sentence reports pursuant to T.C.A., § 40-2904.

On October 15, 1975, police made a raid on a Coffee County farm and arrested eight persons allegedly involved in an extensive marijuana growing and processing operation. Charges against two of those arrested were dismissed; two others, considered to be the principals, were allowed to plead guilty to a felony charge. The four respondents, indicted for manufacturing marijuana and possessing marijuana for purposes of resale, were permitted to plead guilty to a misdemeanor charge of possession. The State recommended the lesser offense because the four were considered to be only indirectly involved with the drug operation, serving in such supporting roles as cooks and carpenters. Each was sentenced on August 25, 1976, to six months in jail and fined $500.00.

Each respondent filed a motion for suspended sentence, seeking both a hearing on the motion and a pre-sentence report. An evidentiary hearing was held at which the defendants presented both testimony and exhibits to show justification for probation. The trial judge ruled that pre-sentence reports would be unnecessary and denied the motions.

The Court of Criminal Appeals reversed and remanded for the making of pre-sen-tence reports. The court did not hold that pre-sentence reports were required in all cases, but concluded that the reports are mandatory in a case in which the justification for probation is “a close question,” and the defendants have specifically petitioned the court for such reports. In view of the fact that the defendants made these petitions, the court stated that it was “at a loss to understand” why the trial judge refused to order the reports.

In Stiller v. State, Tenn., 516 S.W.2d 617 (1974), the rights of a probation petitioner were set forth:

“He has the right to petition the court for probation, the right to a full and fair evidentiary hearing and the right to all the procedural requirements contained in or necessarily contemplated by the statutory scheme.” Id. at 619-20.

The defendants here have been accorded the right to petition for probation, and the right to an evidentiary hearing on their petitions. The relevant statute, § 40-2904, requires such a report only in the event that a probation officer is available and the trial judge elects to order probation. In all other circumstances, the statute leaves the decision whether to obtain such a report entirely within the trial judge’s discretion.

Nor does the Stiller decision require the making of pre-sentence reports. But, it does set forth the relevant factors to be considered by the trial judge, viz., the circumstances of the offense; the defendant’s criminal record; the defendant’s social history; the defendant’s present condition; and the defendant’s physical and mental condition, when these factors are specially relevant. 516 S.W.2d at 620.

Defendants rely upon cases such as Franks v. State, Tenn.Cr.App., 543 S.W.2d 613 (1976) and Mattino v. State, Tenn.Cr. App., 539 S.W.2d 824 (1976). These cases do require the trial court to consider all of the above factors, but hold that a presentence report may be only one method by which these factors are presented for consideration.

The trial judge in this case had before him the mitigating evidence offered by the defendants. Defendant Nancy Mills Welch, 28, of California, took the stand and testified about her life history. She testified that she had no prior criminal record and that she had lived for ten years in an unmarried status with David Welch, the principal defendant, before marrying him after the convictions in this case. She introduced five additional witnesses who gave testimony regarding her reputation and personal background.

Marsha Lou Schmidt, 25, of California, testified regarding her life history, which included a tumultuous marriage that ended in separation and caused her trip to Tennessee. She testified that she had no criminal record. Her only witness was her mother, but she introduced as an exhibit a thorough 37-page portfolio relating to her personal background, including 22 letters and affidavits from friends and relatives, past W-2 forms, degrees, school transcripts and other material.

Catherine Lee Edwards, 25, of California, testified respecting her personal background, admitting that she had a previous misdemeanor conviction for drug possession for which she had already served a probationary term. Her only witness was her sister, although she introduced as an exhibit a 24-page file of material relating to her personal background, including ten favorable letters, a psychological report and certain hospital records.

Dirk Swanson, 29, of California, testified regarding his personal background, including a clean criminal record. His one additional witness was his father, but exhibits included a psychiatrist’s report relating his state of depression, an emotional letter from his wife, a letter from his mother-in-law, and eight other favorable letters and affidavits relating to his social history.

In his lengthy order denying the motions, the trial judge took note of this evidence and set forth his reasons for denial. Unquestionably, his major concern was the nature of the offense. He characterized the drug operation as “massive,” stating that officers found on the Welch farm a sophisticated marijuana-processing operation complete with irrigation facilities, seed-screening devices, a garbage-compactor for baling, scales, and drying racks. Confiscated were two truck loads of raw marijuana weighing 4,160 pounds, one compacted 25-pound bale, two packages in a cooler, and a quantity of seeds, all resulting from what the trial judge described as a “large, well-coordinated, professional marijuana processing operation.” He concluded:

“From a consideration of all the statutory factors required to be considered by the Court in exercising its discretion in regard to probation, i. e., the enormity of the defendant’s crime, the defendant’s criminal record, social history, present condition, and physical condition, and with particular emphasis by the Court upon the enormity of these defendants’ crime, their activities and actions in the premises being the very source from which the illicit weed marijuana emanates, the Court is of the opinion that these defendants are not entitled to the ‘largess’ of the probation law and the Court cannot in good conscience favorably entertain the application.
“[T]he Court is of the opinion that to grant these defendants a suspended sentence under the factual circumstances of this case would be to make a mockery of our drug control laws and the general probation process.”

This holding squares with the rule of Franks v. State, supra; even though the trial judge here based his decision primarily upon the nature of the offense, he clearly considered all other Stiller factors. We find no abuse of discretion in refusing to obtain the requested reports.

It is clear that the pre-sentence report must contain the same subject matter as the trial judge received in this case because T.C.A., § 40-2904, requires the report to inquire into precisely the same factors as those enumerated in Stiller, viz., circumstances of offense, criminal record, social history, present condition. Moreover, it is obvious that at the hearing the defendant and his witnesses will present mitigating factors in the most favorable light to the defendant. See R. Dawson, Sentencing (1969). It seems unlikely that a presentence report, designed to cover the same factors, could add any more weighty favorable factors than those presented by the defendant. In all likelihood, this is the reason the statute requires the report only if probation is being granted, for it could reveal negative factors which were not presented at the hearing.

The judgments of the Court of Criminal Appeals in each of these cases is reversed and the causes are remanded to that court for further proceedings, not inconsistent with this opinion. Costs incurred in this Court are taxed to the respondents and sureties.

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

      . “Investigation and report by probation and paroles officer — Supervision of Parolee. —The power of suspension and probation is within the sole discretion of the trial judge, however, when a probation and paroles officer is available to the court, no defendant shall be placed on probation until a written report of investigation by a probation and paroles officer shall have been presented to and considered by the court, provided the probation and paroles officer to whom such matter has been referred shall file his report within ten (10) days after such reference. Said report shall inquire into the circumstances of the offense, criminal record, social history, and present condition of the defendant. Whenever the trial judge deems it desirable, such investigation shall include a physical and mental examination of the defendant, the expense of which shall be adjudged as part of the costs. . . . ”

      . One aspect of the presentence report which is not included in the hearing is the probation officer’s recommendation. This distinction should not be controlling, in our opinion, since the report is designed to place before the trial judge information which will enable him alone to make the decision, as required by statute. The recommendation may be an additional factor to consider, but it is not among those set forth in the statute and in Stiller.

      Moreover, as noted by the Court of Criminal Appeals, the State failed to make any recommendation in this case. The Stiller decision observes that the State’s prosecutors and appellate advocates “not only have solemn obligations to espouse the causes of the meritorious petitioner, but also to protect and promote the public welfare by standing in unalterable opposition to the unworthy.” 516 S.W.2d at 620.


author: DROWOTA, Judge.

text:
    Milton McCLURKAN, Plaintiff-Appellant, v. BOARD OF ZONING APPEALS FOR the METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Tennessee, Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section.
    April 1, 1977.
    Certiorari Denied by Supreme Court June 13, 1977.

      John L. Chambers, Chambers & Wise-man, Nashville, for plaintiff-appellant.
    Robert Rutherford, Metro Dept, of Law, Nashville, for defendant-appellee.
   OPINION

DROWOTA, Judge.

This is an appeal by an owner of property in Nashville from a decree of the Chancery Court of Davidson County, which affirmed the denial of appellant’s application for a variance by the Metropolitan Board of Zoning Appeals.

The property in question is located at 1713 Beechwood Avenue in an area zoned for one and two family dwellings. It contains a house that is divided into four separate living units, none of which is accessible except by its own outside entrance. The record is unclear as to how long the house has been divided into four apartments, but appellant contends that it has been so structured at least since 1952. In 1973, after having been informed that the residence did not conform to zoning regulations, Mrs. Nora Smith, the previous owner, applied for and was granted a use and occupancy permit to continue its use as a four-family dwelling for so long as she owned and resided on the property. This permit expressly stated that when Mrs. Smith ceased to own and reside on the premises, the property should revert to a “lawful use”. The permit was recorded in the office of the Register of Deeds in February of 1974. Appellant purchased the property in September of 1974 and, when notified that he was in violation of zoning regulations, applied to the Board of Zoning Appeals for a variance, which was denied. He then took his case on certiorari to the Chancery Court, from whose affirmance of the Board he now appeals.

As a preliminary matter, appellee Board of Zoning Appeals has moved to dismiss the appeal for appellant’s failure to comply with Rule 12 of this Court, which requires an appellant to file his assignments of error and brief within twenty-five days of the filing of the transcript. Appellant was admittedly six days late in filing his assignments of error and brief in the case at bar. Appellant’s counsel, however, avers in reply to appellee’s motion that prior to expiration of the twenty-five days he arranged for a short extension with the Clerk of this Court, who informed him that an extension had been granted but evidently failed to make an entry to that effect in the record. Counsel then relied on having this extra time and filed his assignments within what he believed was the extension period, though this was six days after the deadline prescribed by Rule 12. Since appellant filed only a few days late, and since counsel has satisfied us that this was done in good faith for the reason stated above, we overrule appellee’s motion to dismiss.

In his first assignment of error, appellant contends that the use and occupancy permit issued by the Board of Zoning Appeals to the previous owner runs with the land and so inures to his benefit and that the condition that the permit should expire when Mrs. Smith ceased to own the property and reside on it is void. Appellant first argues that, as a general proposition, it is the property itself and not the person who owns it that is to be considered by a zoning board in acting on an application for a variance. He then asserts that, since the condition attached to the permit granted Mrs. Smith dealt only with her continued ownership of and residence on the property, the condition is void and appellant is left with an unconditional permit to use the property for a four-family residence. While we are largely in agreement with the premise of this argument, we cannot concur in the result that appellant insists is mandated by it in this case.

The statute authorizing municipal boards of zoning appeals to grant variances allows them to take such action

[w]here, by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of enactment of the zoning regulation, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property,

the applicable zoning regulations would impose “peculiar and exceptional practical difficulties ... or undue hardship upon the owner . . . .” Tennessee Code Annotated § 13-707(3). Similarly, § 101.27(b) of the Zoning Ordinance for Metropolitan Nashville empowers the Board to grant variances “to alleviate hardships by virtue of the inability of the landowner to .comply strictly with the provisions of this Ordinance by reasons of unique shape, topography, or physical features of the zone lot.”

These provisions, along with the standards for variances set out in § 102.20 of the Ordinance, clearly contemplate that a variance is not a “personal license given to a landowner,” as appellant rightly says. See Hickerson v. Flannery, 42 Tenn.App. 329, 302 S.W.2d 508 (1956). But they also contemplate that it is the peculiar circumstances of the land that must be the primary consideration, rather than any hardship personal to or created by an owner of it. See 82 Am.Jur.2d, Zoning and Planning, §§ 274-76 (1976). While the Board is vested with broad discretion in the variance area, we do not believe that it is authorized to grant a variance when the only hardship to the owner in complying with the zoning regulations is the result of a condition existing not in the land itself but in a structure which was created or altered by an owner of the property in violation of the zoning ordinance. Also, the case for a variance here is made even weaker by a lack of any evidence of hardship other than pecuniary loss, which has been held insufficient by itself to justify a variance. See Houston v. Memphis and Shelby County Board of Adjustment, 488 S.W.2d 387 (Tenn.App.1972). Thus, although we do not have before us the record of the proceedings in which Mrs. Smith was granted her conditional permit to use the premises as a four-family residence, we are forced to conclude from the facts presented that the award of this permit itself, and not merely the personal condition attached to it, was beyond the jurisdiction of the Board under its governing statute and ordinance.

In so concluding, we wish to point out that we do not hold that improvements constructed on the property or even the personal ownership of an applicant may never be considered in deciding whether or not to grant a variance. We do say, however, that both the statute and ordinance controlling here make characteristics of the land itself the overriding criteria by which the Board is to decide the issue of hardship to an owner. It may be that in some cases other factors presented by a variance applicant would be closely related to these criteria, and that the Board would be justified in considering them. In the instant case, however, unique features of the land itself were entirely lacking, and any hardship concerned only the condition of the house, which was brought about by an owner of the property in violation of the zoning ordinance, so that the Board exceeded its authority in granting the variance to Mrs. Smith. The first assignment of error is therefore overruled.

Appellant contends in his second assignment of error that the Board’s failure to grant him a variance in the present case deprives him of the beneficial use of his property and so constitutes a taking of it without due process of law. Of course it is true that zoning regulations may go so far as to constitute a taking of property, and that in such a case the attempted “regulation” will be held unlawful. Bayside Warehouse Co. v. City of Memphis, 63 Tenn.App. 268, 470 S.W.2d 375 (1971). In Bayside, the zoning provision was found to deprive the owner of any beneficial use of the property and therefore held invalid as to that property. Far from so penalizing appellant in the instant case, the ordinance to which he is subjected by denial of his request for a variance imposes a simple restriction universally upheld as one within the zoning power: that the premises be used as a residence for no more than two families. This is not such a substantial deprivation of beneficial use of the property as to constitute a taking. Further, any loss to which appellant may be subjected here evidently is directly attributable not to any change in zoning that deprives him of the use of his property but to the erection or alteration of this building for use as a four-family residence by a previous owner in violation of the zoning ordinance. In any case, neither the two-family zoning provision nor the denial of the variance application that subjects appellant to it rises to the level of a taking of property, and the second assignment of error is overruled.

In his third and final assignment of error, appellant maintains that the Board discriminated against him and arbitrarily denied his requested variance. There is no merit in this contention. While appellant argues that others in the neighborhood are allowed “to use their homes as three and four-family dwellings,” there is no evidence in the record to support this, and we are therefore unable to consider it. Appellant’s claim of discrimination by the Board in awarding a variance to Mrs. Smith while denying one to him is also groundless, for we have already shown that the permit granted Mrs. Smith was beyond the Board’s authority and therefore void. Finally, denial of the variance to appellant can hardly be termed arbitrary. On the contrary, just as the Board exceeded its authority in granting a permit to Mrs. Smith on the facts presented here, as explained above, so it would have exceeded its authority had it granted one to appellant for the same reasons. Denial of the variance to appellant thus was not arbitrary, but was required by the governing statute and ordinance on the facts here presented. The third assignment of error is overruled, and the decree below is affirmed.

Affirmed.

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


text:
    STATE of Tennessee ex rel. DEPARTMENT OF TRANSPORTATION, BUREAU OF HIGHWAYS, Robert F. Smith, Commissioner, Plaintiff-Appellee, v. Harvey GEE and wife, Mary Virginia Gee, Madison Investments, J. Vaulx Crockett, Trustee, the Equitable Life Assurance Society of the United States, Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Aug. 26, 1977.
    Rehearing Denied Oct. 28, 1977.
    Certiorari Denied by Supreme Court April 10, 1978.
    Rehearing Overruled Oct. 28, 1977.
    See 567 S.W.2d 470.

      Harry S. Lester, Frank Grace, Jr., J. Vaulx Crockett, Nashville, for defendants-appellants.
    R. H. Ashley, Jr., Atty. Gen., Clark Tid-well, Nashville, for plaintiff-appellee.
   OPINION

DROWOTA, Judge.

In this case we are confronted with the issue of apportionment of a condemnation award for a partial taking of property subject to a long-term lease.

On September 26,1974, the State filed its petition to take by eminent domain a strip of land about six feet wide and adjacent to the roadway at the corner of Old Hickory Boulevard and Gallatin Road in Davidson County. The strip is a part of a parcel of land owned by defendants Harvey and Mary Gee, who are husband and wife. The State deposited $28,650.00 into court as the value of the property, and an order of condemnation and appropriation was entered on November 26, 1974. When the case was tried to the court sitting without a jury on March 29,1976, the only point of contention was the method of apportionment of the award deposited by the State between the Gees, as owners of the fee, and Madison Investments, as lessees under a long-term lease.

The lease in question was executed on June 15, 1964, by the Gees as lessors and Martin Theatres as lessees. The initial term was 25 years, but the lease contained two 25 year options which, if exercised, could extend the term to the year 2039. The lease provided for rental payments of $2,000.00 a month with an escalator clause, calibrated to the cost of living index, to effect adjustments beginning in 1979. In no event was the rent to fall below $24,-000.00 a year. On January 5, 1966, because both parties realized that a partial taking of the property to widen the highway was inevitable, the following amendment to the lease was executed:

In the event condemnation proceedings be instituted against the leased premises by any public or quasi-public authority to the end that a strip of land up to 25 ft. in width abutting on Old Hickory Boulevard be taken in condemnation, no diminution of rent shall result from such taking. Should, however, a strip of land abutting on Old Hickory Boulevard in excess of 25 ft. in width be so taken in condemnation, then the parties hereto agree that a reduced rental for the remaining portion of the leased premises shall be mutually agreed upon.

In 1968 the lease was bought by defendant Madison Investments, a partnership that spent over $2 million to develop the property and erect the shopping center which currently occupies it. On February 7,1970, the Gees and Madison Investments executed a substantial amendment to the lease, part of which provided:

In the event a reduced rental cannot be mutually agreed upon, Lessor and Lessee agree upon a continuation of the same rental with Lessor receiving no portion of the condemnation award.

This and the other provisions of the 1970 amendment were executed primarily to satisfy defendant Equitable Life Assurance Society of the United States, which then loaned Madison over $2 million to develop the property and took a mortgage on the leasehold in the form of a deed of trust to J. Yaulx Crockett as security. Equitable and Madison were in agreement as to how to apportion between them any share of the condemnation award due the lessee, and all parties agreed that the $28,650.00 deposited by the State was fair compensation for the property taken. Thus, only the question of apportionment between lessor and lessee remained for trial.

Only two witnesses gave testimony at the trial. Mary Gee, one of the owners and lessors of the property, testified that she and her husband were entitled to the entire condemnation award, stating that in leasing the land they did not “relinquish ownership” of it. She further stated that it was “understood” between the parties to the lease amendments that those provisions required that the lessors receive the entire award if the property taken was a strip of less than 25 feet in width. The other witness was Howard Gibson, one of the two partners in Madison Investments and a long-time real estate investor and developer with extensive experience in appraising property. His testimony was that Madison had invested $2.55 million in improving the property, and he estimated the value of Madison’s interest in the property at $1.25 million. He said that the lease had been extended to 2014 by exercise of the first 25 year option, and that a second 25 year option remained as yet unexercised by Madison. When asked about apportionment of the condemnation award between lessor and lessee, Gibson said that the lessor’s interest could be calculated by adding the present value of the reversionary interest of the property taken to the present value of any rental payments lost on the taken property. The present value of the rever-sionary interest is calculated by “capitalizing” the $28,650.00 value of the taken property, that is, by determining what amount of capital today would have produced $28,-650.00 at a reasonable rate of interest by the assumed time of the lease’s termination in 2039. The present value of any lost rental amount would be figured by use of a similar capitalization method. Using this approach and a six per cent interest rate, Gibson concluded that the value of the Gees’ reversionary interest in the property taken was presently $668.00. He further concluded that this amount represented the entire extent of their interest, because the lease amendment’s provision for no diminution in rent meant there would be no loss of rental payments to be capitalized and added to the total of the Gees’ loss. Thus, it was Gibson’s opinion that $668.00 of the $28,-650.00 award should go to the Gees, and that Madison should get the rest.

After hearing the evidence the court, in its memorandum, stated its belief that the rule in Tennessee requires apportionment in such cases to be made by determining the value of the lessee’s leasehold interest, subtracting the rental payments required to be made, and adding on any incidental damages. The court expressed its uneasiness at the lack of evidence upon which to base an apportionment, asserting that it had to “estimate — if not speculate — as to the values of the interests of the parties,” and its amended order read in part as follows:

Although evidence has been offered as to fair market value of the leasehold interest of the defendant lessees, there has been no testimony or proof as to the value of the specific property taken in this instance.

The court nevertheless apportioned the award by giving $1,500.00 to the Gees and the remaining $27,150.00 to Madison, the lessee. It further stated that it construed the lease as not preventing either party from participating in the award. From this decision, the Gees appeal.

The first assignment of error alleges that the trial court erred in construing the lease so as to allow the lessee, Madison, to share in the award. The Gees’ position is that the amendments to the lease, quoted above, give them the exclusive right to the entire condemnation award due to the taking of a strip of land less than 25 feet wide. These amendments provided for rental adjustment only if a strip more than 25 feet wide was taken and that, if in that situation no adjustment could be agreed upon, the rent would remain the same but the lessor would receive “no portion of the condemnation award.” We can find in these provisions no support, either express or implied, for the proposition that the parties therein agreed that the lessor would take the entire award if less than a 25 foot strip of property was condemned. There is likewise no support for such a strained interpretation to be found in the evidence introduced at trial, assuming that such evidence could be properly considered on the point. The question of who was to get the condemnation award in the event the taking was of a strip less than 25 feet wide is one that is clearly and simply not addressed at all in the lease or its amendments. In the absence of any express provision by the parties, Tennessee law requires an apportionment of the award according to the value of the respective interests of lessor and lessee in the property taken. See Shelby County v. Barden, 527 S.W.2d 124 (Tenn. 1975); Mason v. City of Nashville, 155 Tenn. 256, 291 S.W. 1074 (1927). We thus overrule this assignment of error and affirm the trial court’s construction of the lease and interpretation of the law requiring both the Gees and Madison to share in the condemnation award.

In their second and final assignment of error, the Gees contend that the trial court erred in making an apportionment of the award when there was no evidence to support a proper apportionment. In Tennessee, condemned land is to be valued as one estate and a fair market value fixed for the taken property as a whole before apportionment of that amount is made among the various interests in the property. Moulton v. George, 208 Tenn. 586, 348 S.W.2d 129 (1961); State v. Texaco, Inc., 49 Tenn.App. 278, 354 S.W.2d 792 (1961). Apportionment between lessor and lessee is accomplished by determining the value of the latter’s interest in the taken property, which in turn is calculated by determining the fair rental value of that property for the unexpired term of the lease and subtracting the rent that would actually have been paid for it by the lessee during that term. Shelby County v. Bar-den, 527 S.W.2d 124 (Tenn.1975); Moulton v. George, supra; Mason v. City of Nashville, 155 Tenn. 256, 291 S.W. 1074 (1927); Gallatin Housing Authority v. Chambers, 50 Tenn.App. 441, 362 S.W.2d 270 (1962); State v. Texaco, Inc., supra; City of Nashville v. Mason, 11 Tenn.App. 344 (1930). In other words, the total fair market value of the taken property is apportioned by first determining the lessee’s interest, which is the fair market value of the leasehold on that property minus rent actually called for under the lease, with the remainder of the property’s fair market value going to the lessor. Incidental damages to each interest are also allowed, but are not an issue in the instant case.

Lessee Madison has called our attention to persuasive authority which approaches apportionment in the case of a long-term lease differently from apportionment in the case of a short-term lease. These cases approach apportionment of a condemnation award for property subject to a short-term lease by valuing the lessee’s interest in the leasehold first, much like the Tennessee cases cited supra, but apportion the award when a long-term lease is involved by first valuing the lessor’s present interest in the reversion and in the future rental payments. L. Orgel, Valuation Under the Law of Eminent Domain, §§ 122, 125-26 (2d ed. 1953), and cases cited therein. It appears that the approach outlined by Orgel in long-term lease cases comports fairly closely with that used by Gibson in testifying to his opinion of apportionment values. However, we need not decide any questions about the mechanics of the “long-term” approach as applied in this case or in any other, for we conclude that we are bound by Tennessee law not to apply it. We conclude that Tennessee courts, in all cases of apportionment of the proceeds of a condemnation between lessor and lessee, must apply the approach (similar to the one recommended by Orgel for use in short-term lease cases) of apportioning by valuing the leasehold first, in the manner described in Tennessee cases such as Barden and set forth above. It is true that the distinction in Orgel, which appears to be followed in a great number of jurisdictions, is supported by the similarity of a long-term lease to a fee simple in the lessee subject to payment of an annuity in the form of rent to the lessor. It is also true that the courts of Tennessee appear not to have been confronted with the question of whether to adopt the distinction or not. Nevertheless, the Tennessee authority that we have found consistently and as recently as 1975 states the rule of valuation of the lessee’s interest as excess of value of the leasehold over rentals due for the unexpired term. See Shelby County v. Barden, supra; other cases cited supra. These cases state the rule generally as applicable in condemnation apportionment cases involving leases, and in most instances they do so without even giving any facts as to the length of the specific lease involved from which we might infer tacit approval or disapproval of a long-term/short-term distinction. Accordingly, we conclude that the lower courts are bound to apply the rule we have described the Tennessee cases as stating in cases of leases of all lengths, absent some more definite pronouncement on the question from our Supreme Court.

The trial court, then, applied the proper standard of apportionment, for the memorandum opinion states that the lessee’s damages are “the market value of his leasehold interest less the rents that he must pay to the landlord, plus incidental damages, if any, to the remainder,” and cites City of Nashville, supra, and Chambers, supra. We think, however, that the record lacks the evidence necessary for a reasonable application of that standard. Madison’s only evidence was Gibson’s testimony as to the value of the reversion and his remark that Madison’s leasehold was worth $1.25 million. The Gees presented no evidence on the question of valuation for apportionment purposes. There was thus no evidence sufficient to determine properly the lessee’s damages, that is, the fair market value of the leasehold (or fair rental value of the property) less the rent due under the lease with reference to the specific strip of property taken. The fair market value of the leasehold in the strip taken could be established by specific evidence of the rental value of that strip reduced by the rental required to be paid, but there was not enough evidence to do so. On the issue of rent called for under the lease, there was no evidence concerning the effect of the escalator clause and whether it could be taken into account with any reasonable degree of certainty, nor could the rent attributable to the strip taken have been computed from the evidence given. Further, the trial judge in his memorandum gives strong indications of his own dissatisfaction with the state of the evidence and with his having to make an apportionment based on it, and appears to have been willing to grant a new trial on the issue had the parties requested it. Under these circumstances, and because an application of the correct apportionment method to evidence adequate for that purpose should speedily produce a proper result which will probably differ from that heretofore reached, we remand under T.C.A. § 27-329. On remand, the trial court should retry only the issue of exactly how the award is to be apportioned between the Gees and Madison, both of whom are entitled to share in it according to their interests. The court should then decide that issue by applying Tennessee law, which it correctly understands, to the adequate evidence obtained at the retrial. The costs of this appeal will be taxed equally between the Gees and Madison Investments.

Affirmed in part, modified and remanded.

SHRIVER, P. J., not participating.

TODD, J., concurs.


author: FONES, Justice.

text:
    Thomas WILLIAMS, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    June 12, 1978.
    Petition to Rehear Denied August 7, 1978.
    Jay Fred Friedman, Memphis, for petitioner.
    Brooks McLemore, Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, for respondent.
   OPINION

FONES, Justice.

The question addressed in this opinion is whether a defendant who has laid a proper foundation by pleading and evidence presenting the issue of self defense may adduce proof of specific acts of violence committed by the victim against third parties, knowledge of which has been communicated to defendant prior to the homicide, for the purpose of showing defendant’s state of apprehension.

Defendant was convicted of the second degree murder of one Morris Webb and sentenced to fifty years incarceration. Defendant admitted that he killed Webb, but alleged that he did so in self-defense. The trial judge allowed defense witness Fred Parker to testify that Webb had a reputation for violence, but the judge sustained the State’s objection to testimony by Parker concerning specific acts of violence directed against Parker and his wife by Webb.

Defendant relied upon Holt v. State, 170 Tenn. 76, 92 S.W.2d 397 (1936) as authority for the admissibility of Parker’s testimony.

The Court of Criminal Appeals affirmed the conviction and the incompetence of Parker’s testimony, expressing the opinion that Holt was overruled sub silentio by this Court in Chaffin v. State, 209 Tenn. 590, 354 S.W.2d 772 (1962), and noting that Chaffin was followed in Broz v. State, 4 Tenn.Cr.App. 457, 472 S.W.2d 907 (1971), and Henley v. State, 520 S.W.2d 361 (Tenn. Cr.App.1974). We granted certiorari to consider the conflict between Holt and Chaffin.

The State’s proof established that Webb was at the home of his mother at about 9:00 p. m. on December 24, 1975, when the defendant, accompanied by a woman and a child, drove his pick-up truck into the alley behind the apartment and began honking his horn. Both Webb’s mother and a neighbor who was sitting in his car in the alley testified that Webb was shot immediately after opening the door, and that he had nothing in his hands. No weapon was found near his body.

The defendant was apprehended later that evening. A single-shot shotgun containing a spent shell and smelling like it had been recently fired, was found in defendant’s truck. Defendant admitted to the arresting officers that he had killed Webb.

Defendant testified that he had returned from a hunting trip that evening, and that he had subsequently picked up the woman and-child who were with him when he drove up to Webb’s mother’s house. The child had requested money from the woman to go skating, which request was denied, whereupon the child got out of the truck, and defendant, hoping to convince the woman to give the child the money, blew his horn to get the child to return to the truck.

According to defendant, Webb came out of his mother’s apartment armed with a pistol, and in the time it took Webb to walk briskly approximately twelve feet, defendant took his shotgun from behind the seat, broke it, loaded it, closed it, aimed it, and shot Webb from the window of the truck. Defendant and another witness testified that Webb had assaulted the unarmed defendant with a knife approximately one week earlier.

In Holt v. State, supra, defendant testified, out of the presence of the jury, about five recent violent acts committed by deceased against third parties that had been told to him by five different persons. The trial judge ruled the five incidents incompetent and defendant assigned that ruling as error on appeal.

The Holt court correctly observed that in both Jackson v. State, 65 Tenn. 452 (1873), and Fitzhugh v. State, 81 Tenn. 258 (1884), similar testimony had been held incompetent, without discussion of the reasoning supporting the rule. Decisions of the appellate courts of Michigan, Montana, Indiana and Massachusetts were examined, wherein the view was expressed that defendant’s state of mind and apprehension of danger in allegedly acting in self-defense are more accurately revealed to the jury by his knowledge of specific acts committed by deceased of which he had been informed, than by his knowledge of deceased’s general reputation, and that such testimony by the defendant should be admitted as an exception to the general rule limiting character evidence to general reputation. The Holt court concluded as follows:

“This exception to the general rule restricting character evidence to general reputation is supported by reason. When a case narrows to the inquiry as to the degree of reasonableness of the apprehension in the mind of the defendant when he finds himself in a position in which he must instantly determine when, or whether or not, to strike, and when it is conceded that it is permissible for his judgment to be affected by the character of his antagonist for violence, there would seem to be no escape from the further concession that his judgment would be even more directly affected by knowledge of recent specific unrestrained violence. All men well know that the average mind responds more readily to knowledge of specific conduct than to impressions based on general reputation. To illustrate: An officer in performance of his duty approaches B to place him under arrest. Defying and resisting arrest, B threatens the officer. What more convincing basis of apprehension of danger from B could that officer possibly have than reliable information that two days before B had shot and killed another officer approaching him on a like mission, and that week before last he had committed a like offense, and that he was charged with having slain in brutal and violent fashion an inoffensive citizen? Is it possible that the court should decline to permit this officer, when on trial for shooting down B, to tell the jury that he was apprehensive of death or great bodily harm and that he fired as quickly as he did because this apprehension was intensified by knowledge of these specific recent offenses, strongly indicative of the readiness of B to repeat?
“[W]e are of opinion that the learned trial judge should have admitted this testimony by the defendant, subject to the right of the state to disprove defendant’s claim that he had received such information . . . .” (Emphasis added.) 170 Tenn. at 90-91, 92 S.W.2d at 402.

In Chaffin, a serious dispute over the boundary line between their farms resulted in defendant killing deceased with a pistol. The Court found that defendant’s evidence was sufficient to present a jury question on the issue of self-defense and thus evidence of deceased’s general reputation for peace or violence in the community and evidence of threats made by deceased toward defendant that had been communicated to defendant were properly admitted. The Court’s treatment of the admissibility of the specific type of evidence we are considering here was a model of brevity and did not mention Holt or any other Tennessee case. All that we know from the decision about the source or substance of the testimony adduced in the trial court is the statement that the trial judge, “would not permit character evidence relative to specific traits or specific habits, nor would he permit proof of specific threats made against third persons by the deceased, including threats to adjacent land owners.” 209 Tenn. at 595, 354 S.W.2d at 774. In ruling upon the action of the trial judge in excluding that evidence, the Court said, “We are of the opinion that it was proper to sustain objections to evidence of specific acts of the deceased toward third persons.” 209 Tenn. at 595, 354 S.W.2d at 774.

If the testimony offered on behalf of defendant were by witnesses other than defendant himself, we are of the opinion that Chaffin would not be in conflict with Holt. Defendant testified in Chaffin but there is no indication in the opinion that he attempted to relate what had been told him regarding deceased’s acts of violence against others which would bring the decision into conflict with Holt. The rule approved in Holt is limited to testimony by the defendant, repeating what had been told him of recent acts of violence by deceased directed against third parties. In the case at bar, defendant’s witness Parker was examined about incidents of violence committed by deceased, as observed by Parker, not as told to defendant. The Holt rule does not embrace testimony by witnesses other than defendant and we think the rule should be strictly confined within the scope of that decision. The state of mind, the fears, and apprehensions of defendant are reflected by what he has been told, not by what other persons have seen the deceased do. If the State offers evidence to disprove defendant’s claim that he received such information, defendant should be allowed to offer in rebuttal the witness or witnesses who furnished him with information about deceased’s violent acts. Such rebuttal testimony should be limited to what was told defendant, as distinguished from the witnesses’ independent recollection of what actually happened.

The Holt rule is vulnerable to valid criticism, principally that it introduces collateral issues that may lead to a trial or trials within a trial; it permits a double standard favorable to defendant, since the State cannot introduce evidence of defendant’s past acts of violence or convictions for violent crimes; and testing the credibility of such testimony is difficult. Bearing in mind that the essence of the justification of self-defense, and also of the rule of evidence under discussion, is how the situation appeared to defendant at the time of the homicide, we think it is reasonable and logical to limit this character of hearsay evidence to defendant’s own recollection of the information that had been communicated to him of deceased’s violent acts.

The witness Parker’s testimony about violent acts committed by deceased against Parker and his wife was elicited out of the presence of the jury, followed by a lengthy colloquy between counsel and the trial judge. While it is clear that defense counsel was asserting that Parker had told defendant about the violent acts committed by deceased, after the adverse ruling of the trial judge with respect to Parker’s testimony, he did not seek to adduce defendant’s testimony for the record on appeal. Without defendant’s version of what Parker may have told him, in the record for our review, the benefit of the Holt rule is not available to defendant. However, if defendant had testified that Parker related the identical version of the deceased’s violent acts, as stated by Parker in this record, and the trial judge had ruled it incompetent, we would hold that to be harmless error beyond a reasonable doubt. In our view the proof is overwhelming that deceased was unarmed at the time defendant shot him and the circumstances of the encounter were such that defendant’s claim that he acted in the belief that he was in imminent danger of death or great bodily harm has but slight, if any, probative value.

The result is that we affirm the conviction of defendant and adhere to the Holt rule, as interpreted herein. A defendant who has laid a proper foundation by pleading and evidence presenting the issue of self-defense may testify as to what he has been told of recent violent acts committed by deceased against others. Such evidence cannot be adduced from witnesses other than defendant, as proof in chief, but may be offered as rebuttal, if the State presents evidence to disprove that defendant had received such information.

HENRY, C. J., COOPER and HARBI-SON, JJ., and QUICK, Special Justice, concur.

      . “Victim” and “deceased” are used interchangeably in this opinion. The same rule applies in all assault and homicide cases.

      . See dissenting opinion in McMorris v. State, 58 Wis.2d 144, 205 N.W.2d 559 (1973).

      . See Morrison v. State, 212 Tenn. 633, 638, 371 S.W.2d 441, 443 (1963).