author: BROCK, Justice.

text:
    PERFORMANCE SYSTEMS, INC., Appellant, v. FIRST AMERICAN NATIONAL BANK, Trustee, Appellee.
    Supreme Court of Tennessee.
    Aug. 22, 1977.

      John L. Chambers, Chambers & Wise-man, Nashville, for appellant.
    Charles C. Trabue, Jr., Trabue, Strudi-vant & DeWitt, Nashville, for appellee.
   OPINION

BROCK, Justice.

This is an action by a landlord against the assignee of the original lessee to recover rent, property taxes, cost of repairs, and insurance premiums under the terms of a written lease originally entered into between the First American National Bank, Trustee, as lessor, and Chicken Systems, Inc., as lessee. Chicken Systems, Inc., by written assignment, assigned all of its right, title and interest under the lease to appellant, Performance Systems, Inc., without the consent of the lessor, appellee. The Chancellor held that the appellant, as as-signee, became primarily liable for all the obligations of the lease and his decree was affirmed by this Court, and, the cause was remanded to the Chancellor for a reference to the master to determine the amounts owing for rent, taxes, insurance premiums, and repairs. The order of reference from the Chancellor also directed that interest be allowed and computed upon the amounts owing. The parties stipulated the amounts owing but the assignee, denied that it is obligated to pay interest either under the provisions of T.C.A., § 47-14-107, or as damages allowable in the discretion of the Chancellor.

The original lease provided that the lessee would pay to the lessor an annual base rent equal to 10 per cent of the land value and the cost of improvements. This base rent was payable in equal monthly installments of $1,049.08 each. The lease also provided that the lessee would pay all insurance and all real estate taxes and that it would maintain the property in good repair. Upon the prior appeal, this Court affirmed the holding of the Chancellor that these obligations ran with the land and were thus binding upon the assignee who had succeeded to the rights and obligations of the assignor-lessee.

The appellant argues that the obligation to pay the monthly installments < was not one to pay rent but to yield a percentage return on an investment of money. Thus, he argues that the court has ordered interest to be paid on an obligation which is itself “interest” of 10 per cent, so that the total “interest” is in excess of the constitutional limitation of 10 per cent and, therefore, is usurious. This argument is totally without merit. Interest is a charge made for the use of money while rent is a charge made for the use of land. No loan of money was involved in this transaction; on the contrary, the transaction was one for the use and occupation of land and buildings. There is no principle of law requiring that rent for the use of land and buildings be treated as interest merely because the rent is expressed in terms of a percentage of a certain sum of money to be calculated in the future, instead of the customary flat rate. The payment required by this lease is obviously rent, not interest.

The Chancellor based his conclusion that the assignee was liable for the payment- of interest upon two grounds, (1) that interest was owing to the lessor as a matter of right under the provisions of T.C.A., § 47-14-107, and, (2) whether recoverable under that statute or not, interest was allowable, in his discretion, as damages under the facts and circumstances obtaining in this case.

T.C.A., § 47-14-107, provides:

“All bonds, notes, bills of exchange, and liquidated and settled accounts, signed by the debtor, shall bear interest from the time they become due, unless it is expressed that interest is not to accrue until a specific time therein mentioned.”

Since interest, was unknown at common law, it has been recognized that this statute should be confined to those obligations and demands specified by its provisions. Equitable Trust v. Central Trust Company, 145 Tenn. 148, 239 S.W. 171 (1922); 47 C.J.S. 17 Interest § 5 and cases there cited. Nevertheless, the statute has generally been given a somewhat less than strict construction by this Court and the Court of Appeals. Brady v. Clark, 80 Tenn. 323 (1883); Endowment Rank, Knights of Pythias v. Allen, 104 Tenn. 623, 58 S.W. 241 (1900); People’s Bank & Trust Co. v. U S F & G Co., 156 Tenn. 517, 3 S.W.2d 163 (1928); Loftis v. Stuyvesant Ins. Co., 54 Tenn.App. 371, 390 S.W.2d 722 (1964); Air Temperature, Inc. v. Morris, 63 Tenn.App. 90, 469 S.W.2d 495 (1970).

Thus, it was said in Brady v. Clark, supra, that any written instrument, signed by the debtor, whereby he promises to pay to a person named a definite sum of money, for a valuable consideration stated, at a definite time, upon a specified condition, is within the provision of the statute, and will bear interest from the time of payment designated, upon proof of the happening of the contingency that makes the condition effective, although such writing is not, strictly speaking, one of those described in the statute. The other cases above-cited have applied the statute to contracts of life insurance, fire insurance and similar obligations. In keeping with this construction of the statute, we hold that the obligation to pay rent which is fixed under a written lease agreement comes within the statute and entitles the lessor to receive interest on the past due rent installments as a matter of right.

The requirement of liquidation is satisfied if the amount of the debt is certain or can be made certain by mere computation. Draper v. Great American Insurance Company, 224 Tenn. 552, 458 S.W.2d 428 (1970). In this case, although some contemplated expenditures were not to be determined at the time of the execution of this lease, subsequent events reduced them to a certainty, so that, the amount was known by the time performance was due. This satisfies the requirement of liquidation. Cf., Air Temperature, Inc. v. Morris, 68 Tenn.App. 90, 469 S.W.2d 495 (1970).

The precise amount due under this lease was never an issue in this litigation. As soon as it was decided that the defendant was liable under the lease, the parties had no difficulty in stipulating the amount to be paid. We, therefore, affirm the conclusion of the Chancellor that the plaintiff is entitled to interest under the provisions of T.C.A., § 47-14-107.

We also concur in the conclusion of the Chancellor that, apart from the statute, interest should be awarded to the lessor under the circumstances shown in this case. It is well settled that the trial court has discretion to grant or allow the recovery of interest, as is reasonable under the circumstances of the case, although the claim asserted is not one of the class of obligations which bear interest by authority of the above discussed statute. Third Nat. Bank v. American Equitable Ins. Co., 27 Tenn. App. 249, 178 S.W.2d 915 (1943); Phoenix Ins. Co. v. Jordan, 28 Tenn.App. 11, 184 S.W.2d 721 (1944); Farmers Chemical Association, Inc. v. Maryland Casualty Co., 421 F.2d 319 (1970). It is likewise the rule that the action of the trial court in granting or denying an award of interest in such cases will not be disturbed upon appeal unless the record discloses a clear abuse of discretion. Engert v. Peerless Ins. Co., 53 Tenn.App. 310, 382 S.W.2d 541 (1964).

However, the defendant relies upon the case, Textile Workers Union v. Brookside Mills, Inc., 205 Tenn. 394, 326 S.W.2d 671 (1959), for the rule that no interest should be allowed on a debt which is disputed in good faith. Although good faith on the part of the defendant was a material circumstance in that case, the principal ground of decision appears to be that no reasonable basis was found for allowing interest. Nor is it true, as defendant argues and assumes, that reasonable minds are bound to conclude from this record that payment was withheld in good faith. Although it is true that this Court, on the prior appeal, determined the liability of the defendant-assign-ee by resolving a legal issue which was thought to be a question of first impression in this jurisdiction, that does not conclude the matter. Although the defendant-as-signee may have had grounds for believing that it had a legal defense to the claim for rent, it is hard to avoid the conclusion that it was trying to use the plaintiffs’ property without paying for it.

It has been said that, in determining whether or not to allow interest on an obligation, a persuasive consideration is the relative equities between the beneficiary of the obligation and the party upon whom it has been imposed and that such equities will be weighed in accordance with the judicial principle that one for whose financial advantage an obligation was assumed or imposed, and who has suffered monetary loss by another’s breach of that obligation, should be fairly compensated for the loss thereby sustained. Rodgers v. U. S., 332 U.S. 371, 68 S.Ct. 5, 92 L.Ed. 3 (1947). In our opinion, the Chancellor in this case correctly weighed the equities and determined that interest should be allowed. We, therefore, affirm the decree of the Chancellor. Costs are taxed against the appellant and surety.

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

HARBISON, J., not participating.


source: Caselaw Access Project

author: HENRY, Justice.

license: Public Domain

text:
    STATE of Tennessee, Petitioner, v. Luther STAGGS, Respondent.
    Supreme Court of Tennessee.
    Aug. 22, 1977.

      Brooks McLemore, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, Robert H. Gay, Dist. Atty. Gen., Lawrence-burg, for petitioner.
    William Travis Gobble, Gobble & Bryant, Lawrenceburg, for respondent.
   OPINION

HENRY, Justice.

We granted certiorari in this criminal action in order to consider our general attempt statute, Sec. 39-603, T.C.A., in the context of an indictment and conviction for assault with intent to commit robbery with a deadly weapon as proscribed by Sec. 39-607, T.C.A. Our primary concern stems from the holding of the Court of Criminal Appeals that the trial judge erred in failing to charge upon an attempt to commit a felony, under Sec. 39-603, T.C.A. We are presented with an issue of first impression in this jurisdiction.

Pursuant to its finding of guilt the jury fixed respondent’s sentence at not less than five nor more than ten years. The Court of Criminal Appeals reversed and remanded solely on the basis of its view that the trial judge erred in charging the jury. Our primary concern is with the conclusion reached by the Court of Criminal Appeals that the trial judge erred in failing to charge on attempt to commit a felony under Sec. 39-603, T.C.A. It was this holding that prompted our grant of certiorari.

I.

The Factual Situation

We take the facts as reflected in the opinion of the Court of Criminal Appeals:

The proof established that on December 23, 1974, the defendant and his younger brother, Dale, formed a plan to rob one of the Mennonite families living in their neighborhood, believing that because Mennonites are known to be pacifists they would not resist efforts to take their personal property. The two boys left the defendant’s car on a rural road and crossed a field to get to the home of Annie Miller, who was raking leaves in her front yard. Her husband was away at the time, and her grown daughters were inside the house.
Dale pulled his jacket hood tightly around his face and approached Mrs. Miller. He told her he needed to borrow a chain and succeeded in getting her to come around to the backyard, where he announced to her that he wanted all her money. The defendant then walked out from behind a woodpile, his knit cap pulled down over his face with holes cut out at eye level so that he could see. Luther Staggs carried with him a sawed-off shotgun which allegedly belonged to his father and which was allegedly unloaded. According to his testimony he held the gun in his left arm, pointed at the ground. The victim corroborated his story to the extent of testifying that he did not point the gun at her. Nevertheless, she said she was frightened at the sight of the gun and immediately agreed to give them her money. She turned and went into the house, and at this point the testimony is in conflict; the defendant said in his confession and at trial that Mrs. Miller slammed the door in their faces and began screaming, and that this scared the two boys so badly that they ran away; Mrs. Miller testified that she “thought” the boys actually followed her into the house, but did not explain what happened to make them abandon their robbery attempt and run off.
The police obtained a description of the ear used in the incident from two people who saw it in the vicinity of the Miller home and they eventually traced it to the defendant, who was arrested about a month after the event. He gave a full confession and testified at trial to the effect that he intended to rob Mrs. Miller, but he denied any intention to harm her in any way.
There is no factual dispute on the record that the defendant never pointed or otherwise brandished the gun, nor did he say anything to Mrs. Miller. There was no explicit threat made to her, although the jury apparently found an implicit threat in the demand for money made by Dale Staggs, followed by the defendant’s appearance in possession of a dangerous weapon. Given her conduct and subsequent testimony, there is little doubt that Mrs. Miller felt intimidated by the presence of the gun, and there can be no doubt that the two boys attempted to rob Mrs. Miller, i. e., they attempted “the felonious and forcible taking from the person of another, goods or money of any value, by violence or putting the person in fear.” T.C.A. § 39-3901.

II.

Analysis of Statutes

The Tennessee statute on attempt reads as follows:

39-603. Assault with intent to commit felony — Attempt to commit felony — Penalty. — If any person assault another, with intent to commit, or otherwise attempt to commit, any felony or crime punishable by imprisonment in the penitentiary, where the punishment is not otherwise prescribed, he shall, on conviction, be punished by imprisonment in the penitentiary not exceeding five (5) years, or, in the discretion of the jury, by imprisonment in the county workhouse or jail not more than one (1) year, and by fine not exceeding five hundred dollars ($500).

This section originated in the Official Code of 1858 as Sec. 4630. Sec. 4627 of the Code of 1858 which had its origin in Chapter 23 of the Public Acts of 1829, forms the basis of Sec. 39-607, T.C.A., proscribing assaults with intent to commit robbery, and reads as follows:

39-607. Assault with intent to commit robbery — Penalty.—Whoever shall assault another, with intent feloniously and willfully to commit a robbery, shall, on conviction, be imprisoned in the penitentiary not less than three (3) years nor more than fifteen (15) years. If the assault is committed by means of a deadly weapon, whether injury results to the person assaulted or not, the penalty on conviction shall be imprisonment in the penitentiary for not less then (sic) five (5) years nor more than twenty-one (21) years.

These two sections (39-603 and 39-607) appeared in the Official Code of 1858, under an article captioned “Assault and Battery, and Attempt to Commit Crime.” This article proscribed assault and battery with intent to commit murder (Sec. 4626 — now 39-604); with intent to commit robbery (Sec. 4627 — now 39-607); with a deadly weapon (Sec. 4628 —now 39-601); and assault and battery upon a wife (Sec. 4629 — now 39-602); and those assaults committed with intent to commit a felony. (4630 — now 39-603). It is evident that for well over a century particularized punishments have been proscribed for various types of aggravated assaults with enhanced punishment, and that also we have had a general statute governing assaults and/or attempts to commit felonies.

No reported Tennessee case has attempted an analysis of Sec. 39-603, T.C.A., and its relationship to other statutes proscribing aggravated assaults. Nor has any case examined the interplay between Sec. 39-603, T.C.A., and Sec. 40-2520, T.C.A., relating to lesser included offenses. We proceed to such an examination and analysis.

First, we point out that it is the position of the State that “[b]y enacting 39-603, the legislature clearly intended to punish all assaults and other attempts at crimes unspecified in §§ 39-604 — 39-607 (citations omitted) and all attempts at crimes specified in §§ 39-604 — 39-607, which attempts did not involve assaults.”

At first blush, the State’s insistence would appear correct. From the wording of the statute it might well be argued that (1) Sec. 39-603, T.C.A., creates two separate but equal and interrelated crimes; (2) that it is only applicable “where the punishment is not otherwise prescribed”; (3) that felonious assaults are not lesser included offenses within any charge involving statutorily prohibited assaults; and (4) that felonious attempts “otherwise” than by assault are lesser included offenses within the statutes proscribing assault.

If we were construing Sections 39-601 through 39-614, in a vacuum, isolated from all other provisions of our penal code, and independent of our decisional law, we might adopt this construction. However, when due regard is given to our penal code in its entirety, and our body of decisional law, a contrary conclusion is commanded.

Sec. 39-603 creates but one basic offense, i. e. an attempt to commit a felony. This attempt may be made with or without a personal assault. As phrased in Senter v. State, 187 Tenn. 517, 216 S.W.2d 21 (1948):

Under this section, the attempt to commit a felony may be made by personal assault on another, or it may be by a simple attempt, without any personal assault. 187 Tenn. at 519, 216 S.W.2d 22.

This view is in obvious recognition of the fact that all assaults are attempts, where as all attempts are not necessarily assaults. A failure to grasp the somewhat elusive distinction between an assault and an attempt accounts for much of the confusion. Indeed, the distinction is largely semantic. To paraphrase the poet, assaults are sure to attempts allied, and thin partitions do their bounds divide.

The early case of Richels v. State, 33 Tenn. 606, 608 (1854), instructs us that “an assault is an attempt or offer to do a personal violence to another.” An attempt is “an act done with the intent of committing a crime, but which fails of completion.” Gervin v. State, 212 Tenn. 653, 656, 371 S.W.2d 449, 450 (1963). An attempt requires three elements: “(1) an intent to commit a specific crime; (2) an overt act; and (3) failure to consummate the crime. Id. at 657, 371 S.W.2d at 451.

Irrespective of any apparent difference, under Sec. 39-603 the punishment is identical.

There is another and most compelling reason for treating Sec. 39-603 as our general attempt statute. We have no other such statute. If we were to adopt the State’s position that Sec. 39-603 does not apply to the aggravated assaults proscribed by specific statutes but does apply to attempts not involving assaults, the result would be that Sec. 39-603 would, as a practical proposition, have no application to those offenses proscribed in Sections 39-604 —39-607, and we would have no general attempt statute for any of the crimes specified in Sections 39-604—39-607, except to the extent of offenses not involving assaults. For example, we would have no such crime as an attempt to commit murder or rape, yet these are recognized offenses.

See. 39-603, T.C.A., has historically been treated as our general attempt statute. McEwing v. State, 134 Tenn. 649, 652, 185 S.W. 688, 689 (1915), refers to it as “our statute on the subject of attempts.” In Gervin v. State, supra at 655, the Court states that Sec. 39-603 “is our general attempt statute which provides for attempts to commit felonies, either by assault or otherwise.”

We hold that Sec. 39-603 is our general attempt statute. Indeed, it is our only statute providing a punishment for criminal attempts. It may not be isolated from the remainder of the Code. In Bowmer v. State, 157 Tenn. 124, 128, 6 S.W.2d 326, 327 (1928), this Court held that Sec. 39-603 fixed the punishment for the “felony of attempt to commit rape, or any other felony

Unfortunately, some of our cases tend to obscure the distinction between Sec. 39-603, creating the offense of felonious attempt, and Sec. 40-2520, relating to lesser included offenses. That section reads as follows:

Conviction of lesser offense.—Upon an indictment for any offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment and guilty of any degree inferior thereto, or of an attempt to commit the offense; and the defendant may also be found guilty of any offense the commission of which is necessarily included in that with which he is charged, whether it be a felony or misdemeanor.

In Lancaster v. State, 144 Tenn. 21, 229 S.W. 150 (1920), the court held:

The foregoing statute is very broad and comprehensive in its terms, and authorizes the conviction of the accused of any offense which is embraced in that charged in the indictment. 144 Tenn. at 25, 229 S.W. at 151.

It is important to recognize that Sec. 40-2520 creates no substantive offense. Apropos of this discussion, it merely recognizes that an attempt to commit any crime is a lesser included offense. It prescribes no punishment. Again, the only punishment for criminal attempts is as prescribed in Sec. 39-603.

The State argues that applying Sec. 39-603 in a case founded on 39-607, proscribing an assault with intent to commit robbery, would result in an absurdity, viz. “An assault with intent to commit, or otherwise attempt to commit an assault with intent to commit- a robbery.” This argument is a non-sequitur and was no doubt prompted by the Court of Criminal Appeals’ opinion wherein that Court held that the attempted felony in this case was an “assault with intent to commit robbery.” We disagree. Sec. 39-603 does not proscribe an attempt to commit an assault with intent to commit a felony; it proscribes an attempt (by assault or otherwise) to commit a substantive offense, in this case robbery.

The interplay between Sec. 39-603 and Sec. 40-2520 tends to be confusing and some of our cases do not appear to be precise. Yet, when consideration is given to the fact that Sec. 40-2520 authorizes the conviction for an attempt, as a lesser included offense, and Sec. 39-603 prescribes the punishment, the imprecision and confusion become more apparent than real.

We hold that an attempt, by assault or otherwise, under Sec. 39-603, is a lesser included offense within any felony or crime punishable by imprisonment in the state penitentiary, unless the punishment is otherwise prescribed. Sections 39-601—39-610 “otherwise” prescribe any punishment for an attempt. Compare Jones v. State, 200 Tenn. 429, 292 S.W.2d 713 (1956).

in.

Decisional Law

We recognized at the outset that we face a question of first impression in this jurisdiction; however, numerous cases have been decided which are analogous to the situation at hand.

This Court had an opportunity to make an authoritative pronouncement on this question in Rushing v. State, 196 Tenn. 515, 268 S.W.2d 563 (1954), a rape case, but declined to do so. There was an assignment that the trial court erred in failing to charge the jury that it could find the defendant guilty of an attempt to commit a felony under Sec. 39-603, T.C.A. The Court brushed this aside on the basis of a failure to submit a special request.

The Rushing Court, however, made other holdings that are pertinent and persuasive. There the defendant was convicted of assault and battery with intent to commit rape.

The Court recognized prior holdings that an indictment for rape includes the lesser offenses of assault with intent to commit rape, assault and battery, and simple assault. Thereafter, it held unequivocably that “an assault and battery with intent to commit rape is necessarily included in the crime of rape.” 196 Tenn. at 523, 268 S.W.2d at 567. By applying this rationale to the case at bar an assault with intent to commit robbery would include the lesser crime of attempted robbery. This follows from the fact that rape involves assault and battery and yet the Rushing Court holds that it includes assault and battery with intent to commit rape.

A most significant rape case is Jones v. State, 200 Tenn. 429, 292 S.W.2d 713 (1956). There the defendant was indicted for rape and convicted of an attempt to commit a felony under Sec. 39-603, T.C.A. The only question presented was whether one may be convicted of an attempt when he has completed the act, the contention of the defendant being that he was either guilty of rape or nothing. The Court responded in the affirmative. The defendant argued that he could not be convicted of an attempt to commit a felony under Sec. 39-603 because the punishment is “otherwise prescribed by Sec. 39-605”; but the Court rejected that argument, holding that Sec. 39-605 “applies only to an assault and battery with an unlawful intent” and prescribes no punishment for a mere attempt. Basically Jones stands only for the proposition that a completed act of rape may be punished as an attempt; however, the lesser included offense holding is clear; and since the issue was pertinent to the holding, the Court’s comments may not be considered dicta.

Strader v. State, 210 Tenn. 669, 362 S.W.2d 224 (1962), opinion by Mr. Justice Felts, is a most significant case. There the defendant was convicted of assault and battery on a female under twelve years of age in violation of Sec. 39-606, T.C.A. On appeal the defendant assigned as error the failure of the trial judge to charge the jury as to the lesser included offenses under the felony as charged in the indictment. This Court reversed, holding that the trial judge committed prejudicial. error in failing to instruct the jury that a charge of rape included an assault with intent to commit a felony under Sec. 39-603, and other lesser included offenses. Specifically the Court said:

[A] charge of rape also embraces the lesser included offenses of assault and battery with intent to commit rape (T.C.A. § 39-605), an assault with intent to commit a felony (T.C.A. § 39-603), and an assault and battery, which is a misdemeanor. 210 Tenn. at 676, 362 S.W.2d at 227.

In Clark v. State, 214 Tenn. 555, 381 S.W.2d 898 (1964), this Court held that an indictment under either 39-605 or 39-606 includes an attempt to commit a felony under Sec. 39-603, T.C.A.

Also pertinent to this discussion is McDonald v. State, 512 S.W.2d 636 (Tenn.Cr.App.1974), wherein the Court of Criminal Appeals held an assault with intent to commit a felony under Sec. 39-603 is a lesser included offense within a charge of an assault with intent to have carnal knowledge under Sec. 39-606, T.C.A.

In Hudson v. State, 534 S.W.2d 322, 323 (Tenn.Cr.App.1975) the Court held that the offense of rape (Sec. 39-3701) “embraces the lesser included offenses of assault and battery with intent to commit rape (T.C.A. § 39 — 605), assault with intent to commit a felony (T.C.A. § 39-603), and assault and battery, a misdemeanor.”

IV.

HOLDING — Lesser Included Offenses

Under the rationale of these cases and in view of the structure of our Criminal Code, we hold that the crime of assault with intent to commit robbery by means of a deadly weapon, as proscribed by Sec. 39-607, T.C.A., embraces and includes:

a. Assault with intent to commit simple robbery (without a deadly weapon) punishable by imprisonment in the penitentiary for not less than three nor more than fifteen years. (Sec. 39-607).
b. Attempt to commit a felony, by assault or otherwise, under Sec. 39-603.
c. Assault and battery, a misdemeanor.
d. Simple assault, a misdemeanor.

In charging juries, trial judges should make it clear that Sec. 39-603 proscribes attempts to commit a felony and that the crime may be committed with or without an assault. The better form of the verdict is “we, the jury, find the defendant guilty of an attempt to commit a felony,” etc., although a verdict predicated upon an assault with intent to commit a felony is not per se erroneous.

V.

Application

Sec. 40-2518, T.C.A., makes it the duty of trial judges “in cases of criminal prosecutions for any felony wherein two (2) or more grades or classes of offense may be included in the indictment, to charge the jury as to all of the law of each offense included in the indictment” without special request.

As Mr. Justice Felts said in Strader v. State, 210 Tenn. 669, 682, 362 S.W.2d 224, 230 (1962):

He had the right to have all the law as to these different grades of offenses explained to the jury, in order that they might apply the law in determining whether he was guilty of any one or none of such offenses. He had this right because the statute (T.C.A. § 40-2518) gave it to him, and because it was a part of his constitutional right of trial by jury to have every issue made by the evidence tried and determined by the jury under a correct and complete charge of the law given by the Judge.

While we have some reluctance in reversing the able and experienced trial judge who presided over this case, we cannot escape a holding that his failure to charge on the lesser included offense of attempt to commit robbery, under Sec. 39-603 was reversible error. This is not a proper case for the application of the rule recognized by Mr. Justice Harbison, writing for the Court in Johnson v. State, 531 S.W.2d 558, 559 (Tenn.1975), “that there is no requirement to include such instructions when no evidence at all is offered as to lesser included offenses.”

The proof in this case establishes the main offense and all lesser included offenses, except for assault and battery. The defendant had a constitutional right to have a “correct and complete charge of the law given by the judge.” This right was denied him.

The trial judge charged on assault with intent to commit robbery with a deadly weapon; on assault with intent to commit robbery without the use of a deadly weapon; on assault and battery; and simple assault.

While we would not necessarily affirm the Court of Criminal Appeals and reverse the trial judge for the other suggested deficiencies in the charge as pointed out by the Court of Criminal Appeals, these irregularities, coupled with the failure of the Court to charge fully on the offense denounced by Sec. 39-603, T.C.A., operated to thwart defendant’s constitutional right to have all issues raised by the pleadings submitted to the jury. We are confident that the trial judge on remand will fully charge the jury in accordance with the opinion of the Court of Criminal Appeals and the mandate of Sec. 40-2518, T.C.A.

Affirmed and remanded.

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

      . Specifically, it is asserted that the trial judge erred in not instructing the jury as to the meaning of the phrase “intent to commit robbery (including the definition of robbery)”; in failing to define the elements of an assault; in failing to explain the nature or elements of the offense charged; in failing to instruct the jury that intent to do injury is an essential ingredient of the crime of assault; in failing to instruct adequately upon aggravated assault; and in failing to charge on attempt to commit a felony, under Sec. 39-603, T.C.A.

      . These sections appear as Chapter 6 of our Official Code, entitled “Assaults, Attempts and Injuries to Persons.”

      . J. Dryden, Absalom and Achitophel: Great Wits are sure to Madness near Ally’d; and thin Partitions do their Bounds divide.


text:
    Mary Alyse ACUFF, Executrix for the Estate of Bryde F. Acuff, Appellant, v. COMMISSIONER OF the TENNESSEE DEPARTMENT OF LABOR, Appellee.
    Supreme Court of Tennessee.
    Aug. 22, 1977.

      Sam F. Cole, Jr., Memphis, for appellant.
    Jack E. Seaman, Asst. Atty. Gen., Nashville, of counsel; Brooks McLemore, Jr., Atty. Gen., Nashville, for appellee.
   BROCK, Justice.

This appeal, pursuant to T.C.A., § 4-524, Tennessee Uniform Administrative Procedures Act, seeks to review the assessment of a penalty of $600.00 against appellant by the Tennessee Occupational Safety and Health Review Commission for an alleged violation of a safety regulation adopted by the Commissioner of Labor and by the Commissioner of Public Health. We concur in, the findings and conclusions of the Chancellor, Hon. Robert S. Brandt, and adopt them as our own:

“This is an action for judicial review filed pursuant to the Tennessee Uniform Administration Procedures Act, T.C.A. § 4-523. The petitioner seeks review of a decision of the Tennessee Occupational Safety and Health Review Commission, which affirmed the issuance of a citation by the Tennessee Department of Labor for a serious violation of 29 C.F.R. 1926.-550(a)(15)(i) and the imposition of a penalty of $600.00. Petitioner asserts several grounds upon which the agency’s decision might be overturned.
“The citation arose from a tragic accident at the Schlitz Brewery in Memphis on January 22, 1975. Petitioner, doing business as the Acuff Crane Service, owned a crane which was being operated by his son, Tommy, to unload large steel storage tanks from a truck. In the process of unloading a tank, the crane came into such proximity to a 23,000-volt electrical power line that an electric current ran through the crane, electrocuting one workman and severely shocking two others. Evidence clearly establishes that the crane was operated much nearer the power line than the ten-foot minimum distance prescribed by the Regulation. Consequently, after inspection the Department of Labor issued the citation and imposed the fine on February 6, 1975. These actions were affirmed by the Occupational Safety and Health Review Commission on October 8, 1975, on grounds that the improper operation of the crane was the responsibility of the petitioner, Bryde F. Acuff. Petitioner has since died, but the representative of his estate seeks reversal of the Commission’s order. “Petitioner’s only substantive contention is that he is not responsible as employer for the crane operator’s misconduct because of the ‘loaned servant’ doctrine. He asserts that the operator was under the temporary control of Corzine Mechanical Contractors and that his improper actions at the work site were taken under the immediate direction of the contractor, thus removing any liability of petitioner under respondeat superior doctrine. The loaned servant doctrine is recognized in Tennessee, but proper instances of its application are often difficult to determine. The decisions in Richardson v. Russom Crane Rental Co., 543 S.W.2d 590, (Tenn.App.West.Sect., Jan. 28, 1975), lends support to the argument of petitioner, for the Court there utilized the loaned servant doctrine to absolve a crane owner from liability for the negligence of the crane operator who was being guided in his actions by the work site manager. Yet while the loaned servant doctrine is relevant, its application often turns upon tedious factual distinctions, and the Richardson case displayed very close supervision in the context of a tort suit.
“Consequently, the Court believes the better model for this case is the decision in Frohlick Crane Service, Inc. v. Occupational Safety and Health Review Comm., 521 F.2d 628 (10th Cir. 1975), which is practically indistinguishable from the instant case. There the Court upheld a citation and fine against a crane owner whose employee caused the crane to come so near a power line that a worker was electrocuted. The Court rejected the borrowed employee doctrine as inconsistent with the purpose of the pertinent regulation. In fact, liability is more easily established here than in the Frohlick case, for the latter involved a written lease agreement that provided that the crane operator should be under the lessee’s exclusive supervision and control. The court nevertheless held that where the lessee relies on the expertise of the crane operator and gives no particular direction as to its operation, then the duty to comply with minimum safety standards falls upon the owner-employer. It reasoned that the Occupational Safety and Health Act was intended to ensure safe conditions by placing responsibility where economic realities dictate rather than upon the nuances of the common law, particularly where its concepts are fuzzy and were designed with tort liability in mind. The reasoning and decision of the Froh-lick case, as well as the very similar case of Ames Crane & Rental Service, Inc. v. Dunlop, 532 F.2d 123 (8th Cir. 1976), are persuasive. Petitioner is correct in asserting that these authorities were based on federal regulations, not Tennessee law. This overlooks, however, that the Tennessee regulation was taken directly, word-for-word from the federal regulation and incorporated into the Tennessee standards without even the necessity of a hearing, in accordance with T.C.A § 50-515. Thus decisions under the federal regulation are of the very highest persuasive authority in interpreting the Tennessee regulation and should be adhered to closely.
“Additionally, the petitioner’s argument would go far toward defeating the purpose of the regulation. Responsibility for safe work procedures should be placed on those able to enforce them. Though the crane was being operated at a work site under the general supervision of the contractor, the details of operating the crane were left up to petitioner’s employee. To place liability on the contractor in this factual setting might well be useless, for the contractor could be unfamiliar with the operation of cranes, potential dangers from their use near power lines, or the regulations covering their operation. The policy of the Act and Regulation is furthered by placing responsibility on the owner of the crane service company, who is in the best position to instruct his employees in safety measures and to see that the cranes are operated in accordance with applicable regulations. Thus the court feels that the actions of the Commission directed toward petitioner were in accordance with the Tennessee laws and regulations.
“The further arguments of petitioner scarcely merit the court’s attention. That the crane was being used to unload steel tanks instead of air conditioning units as petitioner perhaps anticipated seems irrelevant, since the danger was inherent in operating the crane near high-vóltage power lines, whatever the cargo involved might be. The assertion that the domestic worker’s exception of T.C.A. § 50-504(e) applies because the operator of the crane was the son of the owner of the crane service is puzzling. This exception obviously pertains to household workers unrelated to the employer, not to relatives of the employer whenever they assist in his business. Kinship ties do not eliminate the need to comply with safety regulations in business and industry.
“The court fails to see the relevance of the petitioner’s assertion that selective suspension of agency rule-making by legislative committees under T.C.A. § 4-535 is possibly violative of the Tennessee Constitution. The procedure outlined in that statute was not invoked here. If the' regulation at issue here is invalid because it was subject to suspension by a legislative committee, all rules and regulations promulgated by state administrative agencies would be likewise invalid because § 4-535 seems to lack any special pertinence to this case. This would be an absurd result, since the questionable procedure has not been utilized here, and the court rejects petitioner’s contention. That this section of the Administrative Procedures Act may be unconstitutional does not impugn in any way the validity of the other provisions of the Act. The court also rejects petitioner’s assertion that the Commission reversed its original decision on inadequate grounds. The document dated September 10, 1975, was clearly titled a “Proposal for Decision” and was in no way a final order or decision. The final order of the Occupational Safety and Health Review Commission was entered on October 8, 1975, in favor of the respondent. For these reasons, the court is of the opinion that the actions of the Commission were well within its discretion under the law and were based upon the facts adduced at the hearing. “The citation for serious violation of 29 C.F.R. 1926.550(a)(15)(i) issued to respondent is affirmed, and the penalty of $600.00 assessed against respondent is also affirmed. Costs are taxed to the petitioner. The attorney for the respondent shall prepare the decree and provide therein the granting of an appeal.”

One other contention of appellant remains for consideration. In this Court, but not in the proceedings below, appellant questions proof of the regulation here involved. Appellant contends that the standard used here was not a validly adopted regulation.

T.C.A., § 50-515, permits either the Commissioner of Labor or the Commissioner of Public Health to adopt as an occupational safety or health standard the federal standard relating to the issue under consideration. Both Commissioners adopted the federal regulation, 29 C.F.R. § 1926.-550(a)(15)(i), which provides, in substance, that cranes be operated in such a manner that no part of the crane or load is at any time- closer than ten feet to an energized high voltage transmission line.

The complaint filed by the Commissioner of the Tennessee Department of Labor with the Tennessee Occupational Safety and Health Review Commission in this case alleged that appellant violated “29 C.F.R. 1926.550(a)(15)(i) as adopted by regulation pursuant to Section 50-515 Tennessee Code Annotated.” That complaint was certified by the Occupational Safety and Health Review Commission to the Chancery Court and the Chancellor has certified to this Court that it is one of the matters considered during judicial review of the agency proceeding.

Mr. Les D. Lanier, Memphis Area Supervisor of the Tennessee Department of Labor, testified that the standard had been adopted by the State of Tennessee. But aside from this evidence, we hold that this regulation is a proper subject of judicial notice. Rule 44.01, Tennessee Rules of Civil Procedure; 29 Am.Jur.2d 76-7, and cases there cited. It is the general rule that courts may take judicial notice of the rules and regulations of state administrative agencies which have been promulgated by authority of law, have statewide application and are easily ascertainable. State v. Friedkin, 244 Ala. 494, 14 So.2d 363 (1943); Smith v. Highway Board, 117 Vt. 343, 91 A.2d 805 (1952); Owen v. Rochester-Penfield Bus Co., 304 N.Y. 457, 108 N.E.2d 606, 33 A.L.R.2d 1354 (1952); State v. Hall, 39 Ohio App.2d 87, 315 N.E.2d 504 (1973); Cf. State v. Swiggart, 118 Tenn. 556, 102 S.W. 75 (1907). This is such a regulation. T.C.A., §§ 4-502, 4-510; Official Rules and Regulations of the State of Tennessee, 0800-1-1-01(1), (18). Administrative agencies may likewise take “official notice” of such regulations. T.C.A., § 4-515(d).

We find no error. The decree of the Chancery Court is affirmed. Costs are taxed against the appellant.

COOPER, C. J., FONES and HENRY, JJ., and LEECH, Special J., concur.


author: SHRIVER, Presiding Judge. TODD, Judge,

text:
    Ruby Maxey STROTHER, Plaintiff-Appellee, v. Carl H. LANE, Jr. and Nashville Transit Company, Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Feb. 25, 1976.
    Certiorari Denied by Supreme Court June 20, 1977.

      Herbert R. Rich, Nashville, for plaintiff-appellee.
    John D. Whalley, Barksdale, Whalley, Gilbert & Frank, Nashville, for defendants-appellants.
   OPINION

SHRIVER, Presiding Judge.

—The Case—

This is a suit to recover for the wrongful death of an eleven year old boy who was struck by a bus of the defendant Transit Company as it was backing along a street in Nashville.

The case was tried to a jury and resulted in a verdict and judgment for $75,000.00, from which the defendants have appealed and assigned errors.

—The Facts and Proceedings Below—

The complaint, filed December 21, 1971, recites that the plaintiff is the mother and next-of-kin of Joseph Carl Wilson who died April 23, 1968 in Nashville, Tennessee from injuries received when he was struck by a bus belonging to the defendant, Nashville Transit Company, and operated by the defendant, Carl H. Lane, Jr. It is alleged, and the record shows that on April 23,1968, at approximately 3:15 P.M., plaintiff’s son was walking home from Howard School and, as he crossed Middleton Street, he was struck by a Nashville Transit Company bus operated by defendant Lane, and died within a few minutes thereafter as a result of his injuries. It is alleged that her son, Joseph, was ten years of age at the time of the accident and a fourth grade student in Howard Elementary School. The record shows that he would have reached his eleventh birthday in less than a month after the date of the accident.

It is alleged, and the record shows that the boy was struck by the left rear portion of the bus as it was being backed in an easterly direction along the north side of Middleton Street.

It is charged that defendant Lane was negligent in that he failed to give any warning as he proceeded to back the bus along the street; that there were many children nearby; that defendant was negligent in failing to keep a proper lookout behind him as he backed the bus along the street.

Without objection, the complaint was amended before the trial to add a statutory count based on alleged violation by the defendant of T.C.A. § 59-864 relating to limitations on backing vehicles.

Plaintiff’s suit was for $100,000.00

Defendants filed a plea of the general issue of not guilty and moved the Court for a directed verdict in their behalf at the conclusion of the plaintiff’s proof, which motion was overruled and which was renewed at the conclusion of all of the evidence and again overruled and, as herein-above stated, the trial resulted in a verdict and judgment for $75,000.00 and, following the overruling of the motion for a new trial, said cause was appealed to this Court and assignments of error filed.

Counsel for plaintiff-appellee, in his brief and argument, recites the relevant facts which are, in substance, as follows:

Mr. Lane, the operator of defendant’s bus, had driven the first of three buses delivering approximately fifty grammar school children each to the Children’s Theater located on the same grounds with the Children’s Museum, a playground, a high school, and the grammar school attended by plaintiff’s son at a time shortly after pupils had been released for the day from the above mentioned schools.

The record shows that the driver was familiar with the area and was aware of the presence of the many children in this area in addition to those who had been transported there by defendant’s buses.

After discharging his passengers, Mr. Lane, the driver, continued north on a driveway through the grounds of the school, which grounds he had entered from the south and, on leaving the north end of the driveway, he turned left, or westerly on Middleton Street which borders the grounds of the schools and museum on the north. He pulled his bus as near as possible to the north curbing of the street, whereupon, for the purpose of getting in position to re-enter the same driveway later to pick up his passengers for their return trip, the driver decided to back his bus eastwardly about 175 feet along the curb of the street.

As is shown by the evidence, the driver did not consider the alternative of driving around the block so as to have a clear view ahead at all times, nor did he seek the assistance of available bus company employees to stand outside and keep watch as he backed along the street.

As testified by defendant Lane, when he came to a stop in preparation for backing the bus, he put it in reverse, then stood up in a crouching position with his foot on the brake, and looked back to the rear, and seeing no children or other obstruction, he sat down and began backing, looking alternately from the mirror over the windshield to the outside left rear view mirror. It appears that he was proceeding from five to fifteen miles an hour, depending upon which estimate the jury accepted, and that there was no obstruction to his view to the left toward the driveway from which the deceased child came before the bus struck him.

The driver never saw the boy before he was struck. His first knowledge of the accident was when he heard a scream and saw a school book on the road some five feet to the left rear of his bus as he looked through the left rear view mirror. On hearing the scream, he “jammed on the brakes,” and “froze” in apparent shock from what he realized had happened.

Aside from the testimony of the defendant driver, the only eyewitness to the accident was Patricia Robertson who was called as a witness for the plaintiff. She testified that she was walking up Middleton Street and saw the bus come out of the driveway and across the road while another bus came up behind the first one which came out of the driveway from the theater. She saw the bus driven by defendant Lane as it started backing along the curb on Middleton Street. She saw the little boy come out of the driveway beside the other bus and he proceeded at an angle as he came out on the curb. She stated:

“. . . He came, I guess, about six feet out off the curb and he stopped and he looked both ways to see if there was anything coming. And I would say he looked at the bus because he looked straight across in front of him. Then he went right at an angle and went right behind the bus. And when he got behind the bus, the bus struck him and knocked him down.”

On cross-examination, she stated that after the boy was struck and thrown to the pavement, he never did regain consciousness.

—Assignments of Error—

There are five assignments of error which we will discuss hereinafter.

Assignment No. 1 is to the effect that it was error for the Judge to refuse to sustain the motion for a directed verdict since the jury found, as a matter of fact, that the deceased was capable of negligence in that it found him guilty of remote contributory negligence and that he was actually guilty of such contributory negligence as a matter of law as would bar a recovery.

Assignment No. 2 assigns error on the ground of the excessiveness of the verdict as indicating passion, prejudice and unaccountable caprice on the part of the jury.

Assignment No. 3 assigns error on the ground that there was no material evidence to support the verdict.

This assignment is obviously without merit and is, therefore, overruled.

Assignment No. 4 charges error on the ground that the verdict and judgment were against the preponderance of the evidence.

As has been held in numerous cases, this assignment is not available to the defendants since we do not weigh the evidence where there is a jury verdict. Lyman v. Bank, 48 Tenn.App. 328, 346 S.W.2d 289 (1961).

This assignment is overruled.

Assignment No. 5 is a reiteration of Assignment No. 1 to the effect that the jury verdict was inconsistent with a finding that the deceased was guilty of remote contributory negligence.

—Our Conclusions—

We will discuss Assignments Nos. 1 and 5 together. In considering these assignments we must bear in mind that we are dealing with the question of negligence as it applies to an eleven year old boy who was in the fourth grade at school and who, according to the evidence, was a normal child of that age.

The report of the jury in returning a verdict was as follows:

“FOREMAN: We, the jury, find the plaintiff of — plaintiff with remote contributory negligence — if we got it right awhile ago — and of the child — and find seventy-five thousand to be a just figure.
THE COURT: All right, ladies and gentlemen, Mr. Duncan, your foreman, says that it is the verdict of the jury that you find in favor of the plaintiff, and in the amount of $75,000.00. So say you all?
JURY: (All appeared to assent.)
THE COURT: Let me be absolutely sure I understand. $75,000.00 is the figure after taking into consideration the remote contributory negligence; is that right?
FOREMAN: Yes, sir, that’s what we’ve been all this time on.
THE COURT: So say you all?
JURY: (All appeared to assent.)”

It is the insistence of the appellant that since the jury found the eleven year old boy to have been guilty of contributory negligence, this was tantamount to a finding that he was capable of negligence and that under the facts shown by this record, such negligence was, as a matter of law, proximate rather than remote and that it was such negligence as to bar a recovery.

The record shows that Middleton Street on which the accident occurred is forty feet wide and that the boy came out of an entrance way and, after proceeding some six feet into the street, he stopped and looked both to his left and to his right and, thus, did look in the direction of the bus. He then ran diagonally across the street and was struck by the rear of the bus as it backed along the north curb.

In undertaking to rationalize as to the reason the child proceeded across the street in the path of the backing bus, one might suppose that when the bus came within his vision it may have been either momentarily stopped or proceeding slowly and the child’s impression may very well have been that the bus, if it were moving, was proceeding in a normal fashion forward along the right-hand side of the street. As he ran across the street diagonally, the bus was, thus, behind him or in a position that it was obscured from his vision.

It cannot be successfully contended by the defendant driver that he was free of proximate negligence in failing to see the boy as he came into the street and ran diagonally across and into the path of the bus.

In West v. Southern Railway Co., 20 Tenn.App. 491, 100 S.W.2d 1004, it was held as follows:

“Engineer had no right, at least in the absence of a warning signal of an approaching train, to assume that a child [of tender years], even though he has seen the train, will act with discretion of an adult in remaining in a place of safety unless it is apparently of sufficient age and intelligence to understand the danger of its position.
“Children between the ages of seven and fourteen may or may not be capable of appreciating danger and exercising proper care in reference to it, depending on mental development, experience, and other circumstances.
“Presumption that a child is capable of exercising care for his own safety, the same as if he were a grown person, [does not exist] until the child is over fourteen years of age.
“Whether a child between the ages of seven and fourteen is guilty of contributory negligence is for [a] jury.”

In J. W. Owen, Inc. v. Bost, 51 Tenn.App. 79, 364 S.W.2d 499 (1962), a jury verdict was affirmed wherein the driver of the Construction Company truck ran over a three year old child while the truck was backing down the roadway which was accessible to children and where he failed to keep a proper lookout to the rear and failed to supply a watchman to prevent the truck backing over children who frequented the area. The Court held that, while backing an automobile on a public street is not negligence per se, reasonable care requires a driver to look before starting to back a vehicle and to make sure that the way is clear and the driver must continue his lookout as he backs the vehicle.

In Staley v. Harkleroad, 501 S.W.2d 571, 573 (Tenn.App.1973), a nine year old child was involved in a collision with an automobile and the Circuit Judge directed a verdict in favor of the defendant but the Court of Appeals reversed, holding that the evidence created a jury issue as to whether the driver took such precautions as were necessary to avoid the accident. In the course of the Opinion written by Judge Matherne, the following statement from Townsley v. Yellow Cab Co., 145 Tenn. 91, 237 S.W. 58 (1921), was quoted with approval:

“ ‘Children, wherever they go, must be expected to act upon childish instincts and impúlses; and others who are chargeable with a duty of care and caution towards them, must calculate upon this, and take precaution accordingly.’ Townsley v. Yellow Cab Co. (1921) 145 Tenn. 91, 237 S.W. 58. See also Bradshaw v. Holt (1956) 200 Tenn. 249, 292 S.W.2d 30.”

In Country Maid Dairy, Inc. v. Hunter, 57 Tenn.App. 138, 416 S.W.2d 367 (372) (1967), it was observed that the evidence supported a finding of negligence on the part of the driver (1) in backing the truck down the roadway which was accessible to small children without keeping a proper lookout to the rear; and (2) in failing to supply a watchman or lookout to prevent the truck backing over any of the small children who frequented the area.

Considering the facts in the instant case and the authorities dealing with the subject, we think the facts present a jury question as to negligence and contributory negligence; hence, Assignments Nos. 1 and 5 are overruled.

Assignment No. 2 complains of the exces-siveness of the verdict. Counsel for appellants cite a number of cases dealing with the amount of verdicts which have been approved or disapproved by the Appellate Courts where the death of a child was involved, and it is argued that $75,000.00 is a grossly excessive award for an eleven year old child who had no earning capacity and who was not shown to have undergone pain and suffering before his death.

It is argued by counsel for the plaintiff that it is not known whether the child was rendered instantly unconscious from the blow struck by the collision with the bus or in his fall when his head struck the pavement and that he may have been conscious for a brief period before he died.

In view of the facts as they are revealed by this record, we doubt that the jury would have been justified in taking into account pain and suffering in arriving at their verdict. However, as has been said in numerous cases, there is no rule by which to measure the value of a life and the jury is in the best position to assess damages and, next to the jury, the Trial Judge is in the best position to evaluate damages, and that great weight must be given to the judgment of the jury and the Trial Judge in the absence of any showing of misconduct.

As was said in Crowe v. Provost, 52 Tenn.App. 397, 374 S.W.2d 645 (1963), the amount of damages is primarily a question for the jury and their verdict is entitled to great weight in this Court when the Trial Court has approved it, if there is no claim that the verdict is corrupt or dishonest, citing Phillips et al. v. Newport et ux., 28 Tenn.App. 187, 187 S.W.2d 965.

In said case the Court further observed that the great weight of authority is to the effect that substantial damages may be recovered by the parents of a minor child, notwithstanding the fact that such child had never been gainfully employed, such damage to be measured by the experience and judgment of the jury, enlightened by a knowledge of the age, sex and physical and mental characteristics of the child. The Court further said:

“Since we have no mathematical formula to guide us as to the amount of damages to be allowed in negligence cases, we cannot say as a matter of law that we would be justified in substituting our judgment as to the amount of damages to be allowed in this case in preference to that of the Trial Judge who approved the verdict.”

In Lunn v. Ealy, 176 Tenn. 374, 141 S.W.2d 893, the Supreme Court, quoting from Reeves v. Catignani, 157 Tenn. 173, 7 S.W.2d 38, said:

“The amount of the verdict is primarily for the jury to determine and, next to the jury the most competent person to pass upon the matter is the Judge who presided at the trial and heard the evidence. . . . Where the two Courts have agreed in this way on the amount of damages, our practice has been to treat such concurrence as ‘well-nigh conclusive.’ ”

From the evidence produced in this record, we are not prepared to say that the verdict is so excessive as to indicate passion, prejudice or unaccountable caprice on the part of the jury; hence, the assignment is overruled.

It results that the judgment of the Trial Court is affirmed.

AFFIRMED.

DROWOTA, J., concurs.

TODD, J., partially dissents.

TODD, Judge,

partially dissenting.

The principal opinion is correct in all respects except as to the amount of the verdict.

The measure of damages for wrongful death is the pecuniary value of the life of the deceased plus funeral expenses, where there was no proof of any pain and suffering. Templeton v. Quarles, 52 Tenn.App. 419, 374 S.W.2d 654 (1963).

The pecuniary value of a life is to be determined from the expectancy of life, age, condition of health and strength, and capacity, if any, for earning money, and personal habits as to sobriety or industry. Sou. Ry. Co. v. Sloan, 56 Tenn.App. 380, 407 S.W.2d 205 (1965).

The estimation of compensation for wrongful death must take into consideration not only the most optimistic expectations, but also the most pessimistic, and all uncertainties between the extremes. Smith v. Bullington (Tenn.App.1973), 499 S.W.2d 649.

Damages recoverable for wrongful death do not include grief, mental anguish, or loss of moral aid, comfort counsel or companionship. Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967 (1902).

In estimating the pecuniary value of the life of a minor child, there is good reason and logic in the insistence that the anticipated expenses of rearing, support, training and education should be considered in mitigation of the value of future earnings during adulthood. The decisions on this subject are not uniform. See 25A C.J.S. Death § 114, pp. 962, 963; 22 Am.Jur.2d, Death, § 170, pp. 727, 728.

In Hildreth v. Key, Mo.App., 341 S.W.2d 601 (1960), it was held that the measure of damages for the wrongful death of a minor child is the value of its services during minority plus burial expenses and other incidental expenses, less the expense of support and maintenance during minority.

Even though juries are not ordinarily instructed to consider support and maintenance in mitigation of anticipated earnings, it is obvious that they do so, for verdicts for the death of children with a long life expectancy are uniformly less than verdicts for death of adults.

In addition to considerations of expense of rearing and uncertainty of life and future development of earning capacity, there is, in the present case, the unequivocal report of the jury on remote negligence which must mitigate the recovery.

Furthermore, the amounts awarded in similar cases must be given some consideration in order to preserve some sensible consistency in verdicts of juries and resultant judgments. To this end, a tabular analysis has been prepared showing dates, age of deceased, and approved damages in cases annotated in 8 Tenn.Digest, Death ®=»99(3), (supplement), and same is reproduced as follows:

1951 - 6 years - $20,000.00

1952 - 8 years - 15,000.00

1956 - 8 years - 20,000.00

1960 - 11 years - 22,500.00

1961 - 3 years - 17,500.00

1961 - 16 years - 19,000.00

1963 - 22 months- 25,000.00

1963 - 4 years - 10,000.00

1965 - 9 years - 50,000.00

1966 - 11 years - 20,000.00

It is recognized that no amount of money can compensate a parent for the loss of a child. Without the wrongful death statute, there could be no recovery at .all. The statute allows limited damages for wrongful death, described as “the pecuniary value of the life” (not value to the survivors, but value to the deceased).

The limited recovery allowed by statute should not be permitted to expand beyond the bounds of reason and the intent of the statute.

To approve a verdict of $75,000.00 where remote negligence required a mitigation would have the effect of approving compensation substantially in excess of $75,000.00 in a comparable case where remote negligence was not present.

Accordingly, this Court should suggest a remittitur of $25,000.00 and grant a new trial if same is not accepted.


author: SHRIVER, Presiding Judge.

text:
    Larry TRULL d/b/a Larry Trull Construction Co., Plaintiff-Appellee, v. CITY OF LOBELVILLE, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Dec. 30, 1976.
    Certiorari Denied by Supreme Court May 31, 1977.
    Landis Turner, Keaton, Turner & Peluso, Hohenwald, for plaintiff-appellee.
    Robert L. Jones, Columbia, for defendant-appellant.
   OPINION

SHRIVER, Presiding Judge.

The Case

This suit involves several utility lines constructed by plaintiff-appellee, hereinafter referred to as plaintiff or appellee, in the City of Lobelville and this appeal is from a judgment rendered against the City by Honorable Henry Denmark Bell, Circuit Judge, sitting without the intervention of a jury, wherein judgment for $11,805.00 was entered in favor of plaintiff and title to the utility lines in question were vested in the City.

The Pleadings and the Facts

It is not alleged in the bill but the record shows that defendant City is a municipal corporation chartered under the Uniform City-Manager Commission form of Government, pursuant to Chapter 18 through 23 of Title 6, T.C.A., while the plaintiff is a private contractor engaged in the business of laying sewer, gas and water lines, in addition to other activities as a contractor.

In March, 1973, plaintiff laid a sewer line from the City’s existing sewer line to the property of one Tommy Garber and laid a gas line from the City’s existing gas line to the property of said Tommy Garber. Both of said lines were within the city limits.

In November, 1973, the plaintiff laid approximately three thousand feet of two-inch water line to the homes of H. A. Hendrix, Jr. and H. A. Hendrix, Sr. North of the city limits of the defendant. The Hendrix line crossed their private property as much as three hundred yards from the public highway and stopped at the home of H. A. Hendrix, Sr., several hundred feet away from the highway, and there is no record of any easement having been granted or recorded with respect to said lines.

The original complaint, filed January 7, 1975, avers that an agreement was made between the plaintiff and the defendant, under which plaintiff agreed to construct the above mentioned sewer line at his own expense on condition that he would be permitted to tap on to the main line of the defendant and would recover his investment by charging tap-on fees to each user on the new line and when he had recovered his investment from these tap-on fees, including a reasonable profit, he would convey the line to the defendant.

It is alleged and the record shows that, pursuant to this agreement, plaintiff constructed the sewer line running from the manhole at the Lobelville Garment plant building, 320 feet up Sixth Avenue West toward State Highway 13 East, which was a 6-inch line and plaintiff’s investment therein is alleged to have amounted to $3,360.00, of which amount he had recovered at the time of the filing of the bill only $515.00.

It is further alleged that defendant has reneged on its agreement with plaintiff regarding the sewer line by tapping same to provide service to the residence of one Charles Burcham and by refusing to recognize plaintiff’s ownership of the line and his rights in connection therewith.

It is further alleged that at about the time the agreement as to the sewer line was made, plaintiff and defendant also agreed that plaintiff would construct a gas line from the mobile home of Jim Loveless to the mobile home of James T. Garber, and that plaintiff constructed this line, investing $420.10 in same, and it was agreed that he would recover his investment by charging fees to the persons using the line.

It is proper at this point to state that, on cross-examination, plaintiff said that there was no longer any dispute between him and the City with regard to the gas line referred to in the bill of complaint.

In May of 1973, plaintiff and defendant entered into a third agreement under which plaintiff, at his expense, installed a water line about two miles in length, with the understanding that he would be permitted to tap onto defendant’s main line and recover his investment by charging fees to users tapping onto this water line. His investment in said line was $12,938.85.

It is averred that defendant has reneged on its agreement with plaintiff with respect to this line by refusing to recognize his rights in connection with same.

It is alleged that defendant’s breach of its agreement has caused plaintiff to suffer great damages by preventing him from recovering his investment as agreed upon.

The bill prays for injunctive relief; that plaintiff be awarded damages in the amount of $25,000.00 for defendant’s breach of contract and for general relief.

The answer of the City states that none of the current officers of the City of Lobel-ville have any personal knowledge of the alleged agreements with plaintiff and, therefore, neither admits nor denies same but demands strict proof thereof. It is also denied that the City has breached any agreement or contract with the plaintiff and it is pointed out that the water line involved in this dispute was at one time dedicated to the City by C. C. Cunningham but has been returned to him because of his failure to comply with certain requirements of the City.

It is stated in the answer that defendant is unable to give a detailed answer to the complaint because of a lack of information.

After a full hearing and oral statement of his findings and conclusions by the Trial Judge, the following decree was entered:

“JUDGMENT

This civil action came on to be heard on the 25th and 26th days of July, 1975 before the Honorable Henry Denmark Bell, Circuit Judge, on the complaint, answer, testimony of witnesses in open court, their exhibits and the entire record.
From all of which the Court finds that plaintiff is entitled to recover from the defendant the sum of $11,285.00 to which shall be added interest at the rate of six percent per annum on $8,104.00 portion of said amount, interest being $520.00, so that the total judgment shall be $11,-805.00.
The costs of this civil action shall be paid by the defendant.
All the foregoing of which is hereby ORDERED and ADJUDGED by the Court.
To which action of the Trial Court the defendant duly excepts and prays an appeal to the next term of the Court of Appeals at Nashville, which appeal is hereby granted upon the defendant filing a proper bond and perfecting its appeal as required by law and the defendant is allowed a total of ninety days from the entry of this judgment in which to file its bill of exceptions.
/s/ H. D. Bell
Circuit Judge”

Assignments of Error

There are twelve assignments of error which it will not be necessary to set out seriatim but they will be discussed by the Court hereinafter.

Counsel for appellant, in his statement of the case, states that the main points raised by this appeal are: (1) Whether appellee must be denied relief due to the appellant City’s failure to comply with all the statutory formalities covering contracts by municipalities; and (2) whether quantum meruit is a proper basis on which to compensate appellant in this case.

The Proof and our Conclusions

Counsel for appellant, by the assignments of error, brief and argument, insists that it was error for the Trial Judge to find that there was any contract or agreement between the plaintiff and defendant City other than the City Manager permitting plaintiff to connect to the City’s water system and permitting plaintiff to recover his cost from customer tap fees, and that it was error for the Trial Judge to fail to find and hold that defendant City Manager and Commission were without authority to contract except by ordinance passed in three separate official meetings, and that it was error to find and hold that the defendant City ratified the alleged agreements.

The first witness called for the plaintiff was Mr. Reed DePriest, a real estate broker in Lobelville, and former member of the City Council of defendant who served four years until sometime in 1973. He testified that he served with Dr. Earl Salhany, Harry Meade, Ray Warren and Ivory May, and that Dr. Salhany was Mayor during the time the witness served on the Council.

He was asked to state in his own words what he knew about an agreement, if any, between the City of Lobelville and Mr. Trull concerning utility lines that he was to build, and he answered:

“Well, he had equipment that he was capable of stopping leaks and so forth, of using. In this particular case, three of the lines that was in question, the Council agreed to let him put the lines in, that we were financially in bad shape and he agreed to do it.”

After an objection was ruled on by the Court, the witness continued:

“. . .He agreed to put the lines in on his own, and we were to get the revenue from the water and the gas, which I figured would be important to the City, and that he was to be repaid by charging tap fees to people that did tap on, and get his pay in that manner, and that when he got his pay he would give the lines to the City . . .”

He stated that plaintiff’s proposal was discussed and agreed upon at a regular Council meeting in the Fall of 1973.

The plaintiff, in the course of his testimony, stated, among other things, that at the time in question, Mr. Redner Bates, the City Manager, approached him and said if plaintiff would lay the line up there, that he could collect the tap fees and the City would pay him for tapping on the main sewer.

With respect to the water line in question, he testified that it was discussed two times in a Council meeting, and further stated:

“They all agreed that as long as it didn’t cost them anything that they didn’t see anything wrong with it as long as they could collect the revenue off of the water, and they asked me if I would give them the line when I got my money back, and I said, ‘Sure, be glad to,’ and Mr. Meade (a member of the Council) made the comment that it sounded like a real good deal to him to collect the money because they were in bad need of money.”

On cross-examination, he was asked if there was ever any agreement with the City that they would buy the line from him and he answered:

“They took it. They didn’t buy it.”

There was testimony to the effect that the City, after claiming authority over and possession of the water line, sold one tap for $250.00. He said he did not think they were entitled to it because it came out of his pocket and they did not have a dime invested in the line.

In the old case of Gaslight Co. v. Memphis, 93 Tenn. 612, 30 S.W. 25 (1894), the Supreme Court of Tennessee held that a municipal corporation, restricted by its charter to contract in writing, and to create no general liability, is nevertheless liable, upon an implied contract, to compensate a party who has furnished gas for use upon its streets.

In Land Co. v. Jellico, 103 Tenn. 320, 52 S.W. 995 (1899), our Supreme Court held that a municipal corporation may be held upon "an implied promise for the benefits actually received under an invalid contract for the improvement on its streets, when the contract was fair and reasonable in its terms, and clearly within the scope of the powers of the City Council, who were fully aware of its existence and infirmity, but nevertheless permitted it to go unrescinded and unchallenged, and allowed the other party to it to continue work under it, under the belief that all was satisfactory, and permanent advantage accrued to the City.

In Keenan v. Trenton, 130 Tenn. 71, 168 S.W. 1053 (1914), the Court held:

“Where a municipality had power under its charter to purchase an electric light plant, it was liable under an implied promise for the reasonable value so purchased and used by it, though the power was not properly exercised by the City Council and though bonds voted to pay for it were invalid.”

In Carter County v. Williams, 28 Tenn. App. 352, 190 S.W.2d 311 (1945), our Court held that claims against Carter County for equipment, materials and supplies sold to the County Superintendent of Roads based upon irregularly executed or void contracts which were fully performed in good faith could be recovered under an implied contract by the County to pay for benefits actually received.

The Court further held:

“Where claimant against Carter County for sale of equipment, materials and supplies to the County Superintendent of Roads has no valid express contract because of failure to observe procedural requirements of private act creating the office of Superintendent of Roads in such County and prescribing the duties and seeks to recover on quantum meruit, the claimant must assume the burden of showing a benefit commensurate with the claim asserted.

In Carter County v. City of Elizabethton, 39 Tenn.App. 685, 287 S.W.2d 934 (1950), this Court recognized the rule that a municipality may be estopped to assert the invalidity of a partially executed contract. To the same effect is 63 C.J.S. Municipal Corporations § 1024b, p. 614.

In 56 Am.Jur.2d, Municipal Corporations, etc., § 526, p. 581, is found the following text:

“The liability of a municipal corporation or political subdivision upon an invalid contract on the basis of estoppel is closely related to liability upon an implied contract. In fact, some cases refer to the law imposing ‘an estoppel in the nature of an implied contract.’ In accordance with the principles, discussed elsewhere, concerning the application of the doctrine of estoppel generally to municipalities and political subdivisions, a municipal corporation or county may be estopped in the exercise of its contractual powers.”

In the same article at § 527, pp. 582, 583, is found the following:

“One of the commonest situations in which the doctrine of estoppel may be applied against a municipal corporation or other political subdivision with regard to the validity of its contracts is that in which the contract is intra vires and not prohibited by law, but where the contracting power of the corporation or subdivision has been irregularly or improperly exercised. The authorities generally hold or recognize that in that situation the municipal corporation or political subdivision may be estopped to deny the validity of the contract. Thus, where a municipal corporation receives the benefit of the performance of a contract, invalid merely for the failure to comply with some formality in its execution not affecting the power of the corporation in the matter, it is thereby estopped to assert the invalidity of the contract. Upon like principle, a municipal corporation may be estopped to assert the invalidity of a contract on the ground of failure to authorize the contract by ordinance, or because the contract was adopted by resolution instead of an ordinance, or because of informality in the proceedings leading up to execution of the contract or the adoption of the ordinance.”

The evidence in the instant case, including the testimony of Mayor Salhany and former City Manager Bates, clearly shows the assent of the City authorities, including the City Council, and that the rights of the City are not prejudiced, hence, it does not appear just to allow a City to escape its obligation to one who has performed his part of a contract by asserting that it (the City) did not comply with the law in formalizing its action on the minutes of the Council.

Even if such unjust defense should be allowable, the circumstances of the present case estop the City from defending upon grounds of its own dereliction.

Moreover, even if the contract with plaintiff should be invalid upon a technicality (which is not held) and the City should not be estopped to claim the technicality (which is not held), nevertheless, the facts of this case raise an implied contract in terms identical with those of the informal contract under which the parties acted.

Thus, whether by valid contract without infirmity, or by estoppel to plead the infirmity, or by implied contract to substitute for an invalid contract, the results are the same, that is, that the City is obligated to honor the conditions under which it induced or permitted plaintiff to perform the construction heretofore described.

Therefore, the assignments of error wherein appellant asserts error of the Trial Judge in holding that the agreement was valid and binding are overruled.

On the other hand, we find ourselves in disagreement with the judgment of the Trial Court wherein it is held that the plaintiff is entitled to recover from the defendant the sum of $11,285.00, plus interest, for a total judgment of $11,805.00. We are in further disagreement with the judgment that all the rights and interests of the plaintiff held by him in connection with the utility lines described in the complaint are divested out of him and vested in the defendant.

In the first place, the bill of complaint does not assert any agreement by which the plaintiff would be entitled to recover a judgment for the value of the utility line in question. On the contrary, the bill of complaint asserts that an agreement was made between the plaintiff and defendant under which plaintiff agreed to construct the lines at his expense and that he would be permitted to tap onto the lines of the City and would recover his investment by charging tap-on fees to each user of the new lines and, when he had recovered his investment, including a reasonable profit, it was agreed that he would convey the lines to the defendant.

In addition to the allegations in the bill hereinabove referred to, the testimony of the plaintiff, himself, was clearly to the effect that he had entered into an agreement with the City to construct the lines in question at his own expense and that the City would permit him to connect said lines with those already established by the City, which included gas lines, sewer lines, and a water line, and that he would be permitted to charge tap-on fees to prospective customers and, through that method, obtain reimbursement for the expense of installing the lines, plus a reasonable profit, whereupon, he would turn them over to the City.

As hereinabove noted, plaintiff testified on cross-examination that there was no longer any dispute between him and the City regarding the gas line, so that is pre-termitted in the determination herein made.

In view of all of the foregoing, we conclude that the plaintiff is entitled to the enforcement of his agreement and that the City be enjoined from interfering with the plaintiff’s rights in connection with the water line and sewer line installed by him, which rights include his reasonable control over the lines with the right to collect tap-on fees from all customers seeking the services furnished thereby until he has recovered the actual cost of the.installation of said lines, plus a reasonable profit. He is also entitled to recover from the City the $250.00 tap-on fee that the City extracted from one customer.

It results that all assignments charging error in awarding plaintiff a money judgment against defendant City are sustained and all other assignments, except those hereinabove acted upon, are pretermitted.

The cause will be remanded to the Trial Court for the enforcement of this Court’s decree and for such other and further proceedings and actions as may be necessary and proper in conformity with this opinion.

The costs of the cause will be taxed to the City of Lobelville inasmuch as it was by the City’s action that this suit became necessary.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

TODD and DROWOTA, JJ., concur.


author: NEARN, Judge.

text:
    Jimmy WELCH, Appellee, v. T. F. C. MARKETING SERVICE, INC., Appellant.
    Court of Appeals of Tennessee, Western Section.
    March 1, 1977.
    Certiorari Denied by Supreme Court Aug. 1, 1977.

      Rondal T. Wilson, Shelbyville, for appellant.
    Lyle Reid, Brownsville, for appellee.
   NEARN, Judge.

This is a suit between the farmer and the mill over a soybean contract.

In June of 1972, Jimmy Welch, the farmer, entered into an agreement with T.F.C. Marketing Service, Inc., the mill, to deliver soybeans at a future date. A dispute arose between the parties and the farmer filed a complaint in the Chancery Court of Haywood County for a determination of the rights of the parties under the contract, a declaration that plaintiff had no further liability thereunder and to enjoin defendant from undertaking to assert any claim or right against plaintiff with reference thereto.

The mill filed its answer which denied certain factual allegations, and coupled with that answer a counter-claim for the amount due for an alleged breach of the contract caused by the failure of the farmer to deliver the amount of beans for which he contracted.

The farmer demanded a jury to try the issues of fact.

Issues of fact were submitted to the jury. The answers made by the jury to the factual issues were all contrary to the position taken by the farmer. Judgment was accordingly entered in favor of the mill for $5,086.80.

A motion for a new trial was made by the farmer. Upon the hearing of the motion the Chancellor granted a new trial and simultaneously withdrew the issues from the jury and ordered judgment entered for the defendant. In pertinent part the order provides:

“WHEREUPON, The Court, upon its initiative and with consent of the parties, withdrew the case from further trial by jury, and the Court, having heard and considered the evidence, enters judgment for the defendant and against the plaintiff on Defendant’s counter-claim in the sum of Fourteen Hundred Forty-Four and ^/ioo ($1,444.40) Dollars, for which execution may issue, to which action the parties excepted and prayed and hereby are granted appeals to the Court of Appeals at Jackson. — ” (Emphasis ours)

The mill appeals and while admitting that a Trial Judge has the right to grant a new trial if not satisfied with the verdict, it is charged that a Trial Judge does not have the right to act as a jury in that new trial; and the Chancellor erred in deciding the case instead of ordering a new trial before a new jury as the appellant never waived or intended to waive a jury on the new trial.

The farmer, in response to the Assignment of Error, contends counsel for the mill has waived a new trial before a jury. Also, the farmer appeals and charges the Chancellor with error in the amount of the verdict. It is contended that the Chancellor had the right to enter a verdict sans jury; but it is insisted that such should have been less than $1,444.40. To be exact, it should have been for zero.

The order before set out was not approved for entry by either counsel and bears the pen written notation “Entered without attys signature.”

The Bill of Exceptions reveals that the following occurred after the motion for a new trial was argued:

“THE COURT: Gentlemen, you know, I have never set aside the verdict of a jury and I have never granted a new trial and this is one time I am going to grant a new trial.
“I think the jury did try to split the difference, I really think it should have been December the 15th or should have been May, it shouldn’t have been March. I believe that they did try to in all fairness as in a condemnation suit, they tried to split the difference.
“Now, do you want me to set aside the verdict of the jury, do you gentlemen want to do that or do you want to try it again?
“MR. WILSON: No, sir, I think that this case has been fully tried and I think to set aside the verdict of the jury on the grounds that have been assigned has to say that neither of the three of us knew what we were doing when we submitted the issues to them.
“MR. REID: I avoided any response to that argument in my closing argument for the simple reason that I don’t think it is a proper argument, the issues that were submitted to the jury are ultimately the court’s issues, the Court has to approve them.
“THE COURT: The court would not in all due respect have submitted the same issues in a jury trial that they have submitted back to try this lawsuit.
“MR. REID: No, sir, there would be three.
“MR. WILSON: The same three that I wanted the first time.
“MR. REID: These were drawn late one night after having been in court for—
“THE COURT: And we have learned a little bit more about soybeans and cotton, I am going to set aside the verdict of the jury and I am going to set — I will also enter a judgment that the breach of contract was as of December 15, 1973, and measure of damages should be computed as of that date — that the extensions submitted and signed by T.F.C. and Jimmy Welch, I would say that they were to some extent ambiguous and that Jimmy Welch did not know what he was signing at that time and was not advised as to what he was signing and consequently I believe under case law at the present time that the damages should be set as of December the 15th.
“MR. WILSON: Is the court — are you granting a new trial or are you—
“THE COURT: I am going to set aside the verdict of the jury and set the measure of damages as of December the 15th.
“MR. WILSON: Note our exceptions. If that is the Court’s ruling then I have no choice but to appeal it.”

We presume that Court and counsel for appellee took Mr. Wilson’s negative response to its two-pronged question concerning setting aside the jury verdict and trying the case again as a waiver of a jury trial. Mr. Wilson did not so consider it and neither do we.

It must be remembered that prior to the motion for a new trial, Mr. Wilson’s client, the mill, had received everything it desired from the jury. The last thing in the world Mr. Wilson wanted was to have the verdict set aside. Counsel wanted neither a new trial nor a setting aside of the verdict. As soon as the Chancellor completed his statement regarding his intention to set aside the verdict and to himself enter judgment, the consternation of counsel is immediately evident from the record, along with his exception to the ruling.

We therefore hold there was no waiver of a jury on the new trial and no consent given for the Chancellor to adjudge the issues without jury intervention.

The suit was tried as a breach of contract matter and as such is of a non-equitable nature. The right to a jury determination of factual issues in such matters has been set out in Hurt v. Earnhart (1976 Tenn.App., W.S.) 539 S.W.2d 133 as follows:

“The rule in cases of a non-equitable nature tried in the Chancery Court is that a party, as a matter of right, may demand a jury to try issues of fact, and the verdict of a jury so demanded has all the weight and effect of a verdict at law. The Trial Judge may reject it in his capacity as thirteenth juror, but such rejection leads to a new trial with a new jury — not a substituted verdict by the Chancellor. In such cases on appeal, just as the Trial Court could not, we cannot substitute our judgment of the facts for that of the jury, but must review only to see if there are any material facts to support the verdict of the jury. State Ex Rel. Webster v. Daugherty, supra [Tenn.App., 530 S.W.2d 81]; Ashe v. State Ex Rel. Shriver, supra [Tenn., 518 S.W.2d 360].”

The fact that in this case the jury was initially demanded by plaintiff, who does not now complain of the Chancellor acting without a jury, is a fact of no distinction. See Rule 38.05 T.R.C.P.

The result is that the Assignment of Error addressed to the Chancellor’s action in withdrawing the issue from a jury is sustained. We do not reach the other Assignments of Error.

The decree below is reversed and the cause remanded for a new trial.

Costs of appeal are adjudged equally between the parties and costs below will await the outcome of the new trial.

So order.

Honorable W. E. Quick, by designation of the Supreme Court of Tennessee, took part in the hearing of this appeal in the absence of Presiding Judge C. S. Carney.

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

MATHERNE, J., and QUICK, Special J„ concur.


text:
    In Re ESTATE OF James (Jack) Orvorie MARTIN. Hulan F. MARTIN et al., Appellees-Proponents, v. Flossie Gribble MARTIN (Goodman), Appellant-Contestant.
    Court of Appeals of Tennessee, Western Section.
    May 3, 1977.
    Certiorari Denied by Supreme Court July 25, 1977.

      Noble E. Pepper, Hermitage, for appellant-contestant.
    Harold E. Collins, Nashville, for appel-lees-proponents.
   NEARN, Judge.

This is a will contest. By consent of the parties it was tried in the Circuit Court at Nashville without a jury.

On September 12,1974, Jack Martin died. On February 5, 1975, the brother of the deceased offered for probate in the Probate Court of Davidson County, a holograph dated June 3, 1974. On February 28, 1975, Flossie Goodman filed a petition and answer in the Probate Court. The petition alleged that Flossie Goodman was the beneficiary of a formal will of Martin, dated January 27, 1970, which she contended was the only and last will of Martin, and charged that the holograph failed as a will.

Both alleged wills were certified to the Circuit Court for trial on the issue of devi-savit vel non.

The Trial Judge found in favor of the holograph.

We affirm.

Flossie Goodman attempted to prove the formal will of 1970, in which she was the prime beneficiary, as the last will and testament of Jack Martin. Her right to contest the holograph depends upon the efficacy of this position. If the alleged formal will of 1970 fails, she has no right to contest, for she is neither a beneficiary under the holograph nor an heir of Martin. It is our opinion that plaintiff’s own proof positively rejects any possibility that the formal will of 1970 was the last will and testament of Martin.

Flossie Goodman testified that she and Martin together went to attorney Nowlin Taylor’s office in 1970 where the 1970 will was prepared and signed. Flossie Goodman retained the original Martin will. The 1970 will contains the following opening paragraph:

“I, JAMES (JACK) ORVORIE MARTIN, a resident of Bedford County, Tennessee, being of sound mind and disposing memory, and realizing the uncertainty of life and the certainty of death, do hereby make and publish this my Last Will and Testament, hereby revoking anv and all wills and codicils by me heretofore made.” (Underscoring ours)

Attorney Nowlin Taylor was called to testify on behalf of Flossie Goodman. Mr. Taylor testified that he prepared the 1970 will, but also testified that in 1971, Flossie Goodman and Jack Martin again returned to his office and a new will was prepared. He further testified that the 1971 will was identical to the 1970 will except that the name of a testamentary guardian was changed. Mr. Taylor had a copy of the 1971 will, but the original could not be found by anyone.

Flossie Goodman did not return to the stand to deny or explain any of Mr. Taylor’s testimony.

Since this matter was heard without a jury, it arrives in this Court for a review de novo of the facts and the law, accompanied by the presumption of the correctness of the decree below. T.C.A. § 27-303.

We find as a fact that Mr. Taylor’s testimony was factually correct. Those facts being accepted as true, it necessarily follows that the 1970 will was formally revoked by the 1971 will which contained a revoking clause identical to the one before set out. It also then follows that Flossie Goodman could not take under the 1970 will, as it had been revoked.

Had Flossie Goodman desired to rest her rights on the 1971 will, which also named her as beneficiary, she could not do it in the Probate or Circuit Court, but would have been required to assume the difficult task of proving a lost will in the Chancery Court. See Buchanan v. Matlock (1847) 27 Tenn. (8 Humph.) 390, 47 Am.Dec. 622.

Perhaps this is why she chose to ignore the 1971 will, the original of which cannot be found and therefore is strongly presumed to have been revoked or destroyed by the testator. Sanders v. McClanahan (1969 E.S.) 59 Tenn.App. 590, 442 S.W.2d 664; Donnelly v. Hendrix (1960 W.S.) 49 Tenn.App. 361, 355 S.W.2d 116.

The Assignments of Error are without merit.

The judgment below is affirmed and the cause remanded to the Circuit Court for a remand to the Probate Court accompanied by the holograph as the last will and testament of Jack Martin.

All costs are adjudged against the appellant and surety.

Done at Nashville in the two hundred and first year of our Independence and in the one hundred and eighty-second year of our Statehood.

CARNEY, P. J., and MATHERNE, J., concur.