author: SHRIVER, Presiding Judge.

text:
    Antoine Wadieh ELIAS, Rose Elias, Carol Marie Elias, b/n/f Antoine Wadieh Elias, Claudette Pauline Elias, b/n/f Antoine Wadieh Elias, Fahima Abdel Messih Safar and Louis Tazbazian, Plaintiffs-Appellees, v. A & C DISTRIBUTING COMPANY, INC., and Gerett Lee Johnson, Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    June 29, 1979.
    Certiorari Denied by Supreme Court Sept. 4, 1979.
    Joe P. Binkley, Jr., Richardson R. Lynn and John D. Kitch, Nashville, Gerald M. Walanka, Chicago, Ill., for plaintiffs-appel-lees.
    Bernard M. Rosenblum, Levine & Rosen-blum, Nashville, for defendants-appellants.
   OPINION

SHRIVER, Presiding Judge.

Counsel for defendants-appellants makes a clear and succinct statement of the case, which statement is adopted and agreed to by counsel for the appellees. Said statement is as follows:

“This is a discretionary appeal, pursuant to T.C.A. § 27-305, from an interlocutory order of the Circuit Court for Davidson County, denying defendants’ motion to dismiss the action. Honorable Robert Lillard, Trial Judge, has certified to this Court that he is of the opinion that his order denying defendants’ motion to dismiss involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from his order may materially advance the ultimate termination of this litigation.
The only pleadings filed thus far in this action are plaintiffs’ complaint and defendants’ motion to dismiss. For the purposes of determining the motion to dismiss presented to the Trial Court, the parties stipulated certain facts incorporated in an agreed order made part of the technical record.
The complaint in the instant case purports to state a cause of action based upon an automobile accident which occurred in Nashville, Tennessee on May 21, 1976. The complaint was filed April 17, 1978.
Defendants moved to dismiss the complaint as to all of the adult plaintiffs on the ground that the claim stated in the complaint accrued more than one year before commencement of this action and is therefore barred by the provisions of T.C.A. § 28-304, the Statute of Limitations. Although not averred in the complaint, plaintiffs resisted the motion to dismiss by asserting the Tennessee “saving statute,” T.C.A. § 28-106, plaintiffs having originally filed this action in the state courts of Illinois, and the action having been dismissed without prejudice.
The controlling question of law certified to this Court is whether the commencement of an action in a foreign state court tolls the running of the Tennessee Statute of Limitations against an action for the same cause and between the same parties subsequently filed in Tennessee, when Tennessee is both the forum state and the state where the cause of action arose.
It is appellants’ contention that T.C.A. § 28-106 applies only to actions commenced in a Court within Tennessee.”

—Stipulation—

For the purpose of determining defendants’ motion to dismiss, the parties stipulated the following facts:

“AGREED ORDER
“It appearing to the Court as evidenced by signatures of counsel for the parties hereto that, for the purposes of determining the Motion presently before the Court to dismiss the plaintiff’s Complaint, the parties have agreed, and
IT IS, THEREFORE, ORDERED ADJUDGED, AND DECREED that the following facts have occurred and are to become a part of the record herein for all purposes necessary:
1.The plaintiffs are citizens and residents of Chicago, Cook County, Illinois with the exception of plaintiff Louis Taz-bazian who is a citizen and resident of Montreal, Canada.
2. The defendants are citizens and residents of Tennessee.
3. The automobile accident out of which this claim arises occurred in Nashville, Tennessee.
4. May 21, 1976 — Date of accident.
5. May 12, 1977 — Summons and complaint were filed in the Circuit Court of Cook County, Illinois.
6. June 13, 1977 — Upon motion of defendant, order of the Circuit Court of Cook County, Illinois was entered dismissing the plaintiffs’ complaint for lack of jurisdiction.
7. July 20, 1977 — Order vacating the order of June 13, 1977, and providing the same language of dismissal but with the addition ‘with prejudice’.
8. August 19, 1977 — Third order affirming the original dismissal order on June 13,1977, but changing the language to state ‘with prejudice solely on the issue of Illinois jurisdiction . . ’
9. April 17, 1978 — Summons and complaint filed in the Circuit Court for Davidson County, Tennessee, and assigned to the First Circuit Court.
/s/Rohert E. Lillard JUDGE
APPROVED FOR ENTRY:
/s/ Joe P. Binklev. Jr. Attorney for Plaintiffs
/s/ Gerald M. Walanka Attorney for Plaintiffs (Signed by JPBJr. with permission)
/s/ Bernard M. Rosenblum Attorney for Defendants”

The original complaint herein was filed April 17,1978 and purports to state a cause of action for personal injuries resulting from an automobile accident which occurred in Nashville, Tennessee on May 21, 1976. Thus it is seen that the complaint was filed almost two years after the accident in which the injuries are alleged to have occurred.

Defendants-appellants filed their Motion to Dismiss on May 10, 1978, which is as follows:

“MOTION TO DISMISS — STATUTE OF LIMITATIONS DEFENSE
Come now the defendants and move the Court to dismiss the actions filed on behalf of ANTOINE WADIEH ELIAS, ROSE ELIAS, FAHIMA ABDEL MES-SIH SAFAR and LOUIS TAZBAZIAN (all plaintiffs with the exception of the two minors) on the ground that it is apparent from the complaint that the claims stated in the complaint on behalf of the above listed plaintiffs accrued more than one year before commencement of this action and are therefore barred by the provisions of T.C.A. § 28-304.
As set out in Paragraph One of the complaint, it is alleged that the cause of action of the plaintiffs accrued on or about May 21, 1976. The filing of the complaint in commencement of this action was made on April 17, 1978.
/&/ Bernard M. Rosenblum Levine & Rosenblum 18th Floor, Life &
Casualty Tower Nashville, Tenn. 37219 Attorneys for Defendants”

Plaintiffs-appellees seek to avoid the bar of the Tennessee Statute of Limitations by asserting the “Tennessee Saving Statute,” T.C.A. § 28-106.

Section 28-304, T.C.A., Personal tort actions, provides that “[a]etions ... for injuries to the person . . . shall be commenced within one (1) year after cause of action accrued.”

Section 28-106, T.C.A., New action after adverse decision not foreclosing merits, provides:

“If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action the plaintiff . . may, from time to time, commence a new action within one (1) year after the reversal or arrest.”

In Moran v. Weinberger, 149 Tenn. 537, 260 S.W. 966 (1923), it was said that this statute is remedial and is to be liberally construed, but protection against laches, negligence, or other fault of the plaintiff was no part of its purpose.

—Assignments of Error—

There are two assignments, as follows:

“I. The Trial Court erred in holding that the Tennessee saving statute, T.C.A. § 28-106, applies to suits instituted in foreign state courts when Tennessee is now the forum state and the state where the cause of action arose.
II. The Trial Court erred in holding that plaintiffs’ cause of action is not barred by the Tennessee Statute of Limitations, T.C.A. § 28-304.”

It is argued by counsel for appellants that since plaintiffs’ complaint shows on its face that the claim sued on is barred by the Statute of Limitations, and since appellants have filed a motion to dismiss upon that ground, the burden of proof is upon the plaintiffs to show that their present action falls within the saving statute, citing Knox County, Tennessee v. Moncier, 224 Tenn. 361, 455 S.W.2d 153, 158 (1970) and East Tenn. Coal Co. v. Daniel, 100 Tenn. 65, 42 S.W. 1062 (1897).

The facts shown by this record, briefly stated, are that the accident out of which this claim arose occurred in Nashville, Tennessee May 21, 1976; that the defendants are residents of Tennessee, while the plaintiffs-appellees are residents of Illinois, with the exception of plaintiff Louis Tazbazian who is a resident of Canada.

Plaintiffs originally commenced this action in the Circuit Court of Cook County, Illinois three hundred and fifty-six days after the date of the accident, which suit in the Illinois Court was dismissed for lack of jurisdiction on June 13, 1977.

On April 17, 1978, twenty-three months after the accident, plaintiffs-appellees filed the complaint in the instant case in the Circuit Court of Davidson County, Tennessee.

It is asserted by appellants, and we concur in the conclusion, that the place where the tortious conduct of the defendants is alleged to have been committed is now the forum state for judicial determination of the instant case, and the law of Tennessee determines the rights of the parties to this action. Restatement, Conflict of Laws, § 378; Telecommunications, etc. v. Southern Tel. Supply Co., 518 F.2d 392 (6th Cir. 1975); Winters v. Maxey, 481 S.W.2d 755 (Tenn.1972), wherein it was held as follows:

Absent public policy to the contrary, the law of the state in which the tort occurs controls.
If the law of jurisdiction in which the tort occurred is against good morals or natural justice, or for some other reason, its enforcement would be prejudicial to the general interests of the state’s citizens, such law would not be controlling in an action which is brought in the state and which arises out of tort.

On the question whether the commencement of an action in a foreign state tolls the running of the Tennessee Statute of Limitations against an action for the same cause and between the same parties subsequently filed in Tennessee, numerous authorities have been cited by counsel for both appellants and appellees and it definitely appears that the majority rule as announced in decisions of the courts of numerous other jurisdictions is that an action in a foreign state does not toll the running of the Statute of Limitations in the state where the cause of action arose.

It is pointed out that there is no reported decision of the Appellate Courts of Tennessee which is addressed to the specific issue presented in this case, except perhaps the old case of Shelton v. Johnson, decided in 1857 and reported in 36 Tenn. 672, wherein our Supreme Court held that a suit in Virginia was not lis pendens of the subject matter in Tennessee and that plaintiff’s claim was barred by the Tennessee Statute of Limitations. The Court stated as follows:

“It is a very strong and forced presumption to make, in most cases, within the same State, that all its citizens have knowledge or notice of all the suits that may be pending in all the Courts of record in the State. But though we know it is the presumption of an impossibility, yet the urgent policy of the rule has forced its adoption. But it would be an absurd and unreasonable extension of it to make it apply to every court in the Union. This would shock the common sense of mankind, and bring odium upon the whole doctrine. The phrase thrown out in the books, laying down the rule that ‘lis pendens is notice to all the world,’ must be limited in its construction to all persons within the jurisdiction or State where the suit was pending. It cannot be carried further upon correct principles or reason, and there is no authority on the question to control us.”

While the decisions of Federal District Courts are not binding authority upon this Court and other State Courts in Tennessee, yet from time to time we find the reasoning in the decisions of a Federal District Court to be useful and persuasive.

In Sigler v. Youngblood Truck Lines, 149 F.Supp. 61 (D.C.1957), the United States District Court for the Eastern District of Tennessee definitively held that under Tennessee law, the words, “If the action is commenced within the time limited by a rule or statute of limitation,” contained in the Tennessee Savings Statute (§ 28-106, T.C.A.), have reference to actions commenced in Tennessee Courts only, and that commencement of an action in a state other than Tennessee does not toll the Statute of Limitations in this State. In that case the Court stated: inter alia, as follows:

“It is obvious that the words, ‘If the action is commenced within the time limited by a rule or statute of limitations * * *’ contained in Sec. 28-106, have reference to actions commenced in Tennessee courts only. If the Legislature had intended to include actions commenced in foreign states, it could have easily said so, as was said by the Kentucky Legislature. The fact that this section is a part of the chapter containing Tennessee’s general provisions of statutes of limitation buttresses this conclusion. The general rule is that the commencement of an action in one state does not toll the statute of limitations in another state, unless the applicable statute so provides.” [p. 66-67]

We find that the general rule, as stated in Corpus Juris and American Jurisprudence, is as follows:

“A statute permitting a new action to be instituted after failure of the original action has been held inapplicable where the original action was instituted in another state. 54 C.J.S. § 288-c
“The commencement of an action in one state does not toll the running of limitations against an action for the same cause and between the same parties in another state. 54 C.J.S. § 299
“As a general rule, the commencement of an action in one state does not toll the running of limitations on the same cause of action in another state. 51 Am.Jur.2d § 201.
“Where the action is regarded as controlled by the statute of limitations of the forum, it has usually been held that a plaintiff invoking the savings statute of the forum may not rely upon a nonsuit in an earlier action brought in another state.” 51 Am.Jur.2d § 306.

We are impressed that the decisions cited in the brief of counsel for appellees, while pertinent and persuasive, do not alter the proposition that the vast majority of the courts of last resort in other jurisdictions have held that suits in a foreign state do not toll the Statute of Limitations in the state of original jurisdiction unless the statute of that state specifically so provides.

It is pointed out by counsel for appellants that the following States adhere to the general rule that the commencement of an action in one state does not toll the running of the Statute of Limitations against an action for the same cause and between the same parties brought in another state, those States being: Kansas, Mississippi, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Texas, Wyoming, and West Virginia.

While we have not made an exhaustive review of the authorities, we are impressed that the argument of counsel for appellants is reasonably accurate that the remaining states other than those above listed here have not addressed the specific issue involved in the instant case or have savings statutes differing from the Tennessee statute involved herein and that some of those states have addressed the issue of the interpretation of their savings statute only in the context of cases in which the cause of action arose in a foreign state, thereby necessitating the importation of law foreign to the forum, under the conflict of laws principles.

It is with these distinctions that we find the cases recited and relied on by counsel for appellees to be distinguishable and, thus, not binding or conclusive on the Courts of Tennessee.

For reasons indicated, we are of opinion that Tennessee adheres or should adhere to the majority rule and that the assignments should be sustained.

It results that the judgment of the Trial Court is reversed and the plaintiffs’ cause of action is dismissed as having been barred by the Statute of Limitations of Tennessee.

REVERSED AND DISMISSED.

DROWOTA and LEWIS, JJ., concur.


source: Caselaw Access Project

author: FRANKS, Judge.

license: Public Domain

text:
    Helen M. HANDLEY, Plaintiff-Appellant, v. Willie Kate MAY, Defendant-Appellee.
    Court of Appeals of Tennessee, Eastern Section.
    July 6, 1979.
    Permission to Appeal Denied by Supreme Court Oct. 22,1979.

      Walter L. Fuller, Jr., Oak Ridge, William A. Young of Cheek, Taylor & Groover, Knoxville, for plaintiff-appellant.
    James T. Barry, Jr., St. Louis, Mo., Harry L. Lillard of Lillard & Seivers, Oak Ridge, for defendant-appellee.
   OPINION

FRANKS, Judge.

This is an action for slander, presenting on appeal as a principal issue whether the plaintiff, as a matter of law, must plead in his complaint the precise words proved at trial.

The complaint alleges defendant had told one W. A. Jones, Sr., that plaintiff was “a member of organized crime and was acting in consort with other members of organized crime in Knoxville and surrounding communities.” Jones’ testimony was offered by deposition at the trial and he stated defendant had said to him that “Dan Bectol, who is the manager of Credit Bureau in Knoxville, was connected with the Mafia, and that Helen Handley [plaintiff] was involved in the underworld, too.”

At the conclusion of plaintiff’s proof, defendant moved for a directed verdict. Relying on Lackey v. Metropolitan Life Ins. Co., 26 Tenn.App. 564, 174 S.W.2d 575 (M.S.1948), the trial court sustained the motion, ruling the failure of plaintiff to prove the exact words alleged in her complaint was fatal.

The evidence establishes that at one time the parties were associated in the business of credit reporting and computer billing and collection of accounts in the Oak Ridge area. The defendant operated the credit bureau and plaintiff supervised the billing and collection operation. Subsequently, the parties separated the operations by swapping stock in the two corporations which had been formed to handle the respective operations with the defendant acquiring total ownership of the credit bureau and plaintiff total ownership of the billing and collecting firm; however, their offices remained in the same building. In 1977, plaintiff entered into an agreement with the operators of a credit bureau in Cleveland, Tennessee, whereby she would establish a credit bureau in Oak Ridge; in the course of establishing the credit reporting service, she entered into an agreement with the Knoxville Credit Bureau which enabled her to obtain credit information from their records. This direct competition with defendant’s business resulted in a suit over the use of similar trade names which was recently before this court.

Plaintiff alleged, as a result of this competition, the defendant entered into “a campaign of slander, harassment, and embarrassment calculated to destroy the personal and professional integrity of the plaintiff.”

At the trial, the only material evidence offered on this allegation was the testimony of Jones.

The sole assignment of error on appeal is:

The Trial Court erred in granting a directed verdict for appellee on the ground that the offensive words complained of were not alleged verbatim in the complaint and in holding the complaint was fatally defective on that basis.

In the Lackey case relied upon by the trial judge, the Middle Section of this court held: “ . . . in an action for libel or slander the exact language of the defamatory statement must be set out in the complaint, . . . ” 26 Tenn.App. at 581, 174 S.W.2d at 582. The basis of that holding was derived from prior Tennessee cases which had held that “ . . the words must be proved strictly as alleged; where the proof is of equivalent words or words of similar import, or of words spoken interrogatively when they were alleged to have been spoken affirmatively, the variance is fatal.” At p. 580, 174 S.W.2d at p. 582.

The plaintiff insists that the Lackey standard is no longer operative having been superseded by the enactment of the Tennessee Rules of Civil Procedure. In particular, she relies upon Rule 8.01 which states:

8.01. Claims for relief. — A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.

Under this standard, the plaintiff maintains the harsh technical requirements of common law pleading have been abrogated. The technical requirement for pleading the exact language under the Lackey rationale was necessary in order:

[T]hat the court may know exactly what the words were so as to be able to judge whether they are actionable; that the defendant may know what he is called on to meet and how to shape his defense, whether by demurring, denying, or justifying; and that the judgment may be so certain that it may. be pleaded in bar of another action for the same cause. At p. 581, 174 S.W.2d at p. 582.

This rationale under modem rules of pleading is no longer persuasive. There is no actual necessity that a court have the exact words of an allegedly defamatory statement in order to determine whether or not they are actionable. Slanderous statements in most instances involve imputations of moral turpitude or criminal behavior and, in evaluating whether the statement has subjected an individual to ridicule or degradation in the community, it is the substance of the statement not the form which is significant. Of course, if the complaint is so vague that a court cannot ascertain the nature of the alleged slander, it is insufficient.

Where the substance of the slanderous utterance is pled along with notice of the time and place of the utterance the defendant is apprised of the allegations that he must defend against. To the extent that the circumstances surrounding the utterance are significant, the broad and varied discovery established by the Rules of Civil Procedure provide ample means to ascertain the details of the circumstances. The means of discovery available at the time of the Lackey decision were quite limited and many of the functions of modern discovery were then performed by the system of common law pleading.

In this context, other rules of procedure are pertinent. Rule 9, purports to list matters which must be pleaded with particularity. Included are fraud, mistake, lack of capacity and other matters. No mention of defamation is made in this rule. The advisory committee comment to Rule 9 states that the particularity requirement “is not intended to require lengthy recital of detail. Rather, the Rule means only that general allegations of fraud and mistake are insufficient; the pleader is required to particularize, but by the ‘short and plain’ statement required by Rule 8.01.”

The specific enumerated actions which must be specifically pleaded need not be set out with the kind of precision which Lackey required. This is consistent with the injunction set forth in Rule 1: that the T.R. C.P., “shall be construed to secure the just, speedy and inexpensive determination of every action” and the abolition of technical forms of pleading in favor of “simple, concise and direct” averments contained in 8.05.

Under the common law rules governing pleading, a plaintiff in a slander action was placed in a difficult posture, as illustrated in a statement from Butler v. Stites, 7 Tenn.App. 482, 486 (M.S.1928):

The rule is that in an action for slander, but possibly uncertain what the slanderous words were, the plaintiff may state one set of words in one count and another set in another, and so varying them in as many different ones as he chooses. Then if the evidence established either set of words the plaintiff recovers. [Citations omitted.]

This burdensome, technical and harsh system is at odds with the scheme established by the Tennessee Rules of Civil Procedure. As stated in Altoona Clay Products, Inc. v. Dun & Bradstreet, Inc., 367 F.2d 625 (C.A.3), the court, in evaluating the impact of the Federal Rules of Procedure on pleadings, said:

[TJechnical rules must give way when they come in conflict with our simplified rules of pleading. [Citations omitted.] At p. 629.

The better reasoned approach to the issue was taken in the Michigan case Pursell v. Wolverine-Petronix, Inc., 44 Mich.App. 416, 205 N.W.2d 504 (1973). The court noted that because an alleged slander is spoken, it is often impossible for the hearer to repeat it verbatim. And, where the remark is not made within the plaintiff’s presence, the in haec verba requirement would cause plaintiff’s case to depend on the precision of a third party’s memory. On that basis, the court held that a complaint which sets out the substance of the defamatory statement is sufficient.

In the case sub judicé, the utterance was made to the third party Jones in a telephone conversation who, in turn, apprised his son of the utterance who, in turn, in a telephone conversation, restated the substance of the conversation to plaintiff. No other publication of the utterance was established in the record. The rationale of Pursell is highly relevant to the case sub judice. Its wisdom is reflected in the testimony of Jones when he was asked:

Q. Did she say Mr. Bectol was a member of the Mafia?
A. The best I remember she said “connected” with the Mafia. The word “connected” was used.

This approach was followed in Pirre v. Printing Developments, Inc., 432 F.Supp. 840 at 843, (S.D.N.Y.1977) (applying F.R. C.P. 8(a)):

To be sure, plaintiff has failed to plead those [the allegedly slanderous] statements in haec verba and his witnesses recall the gist of the conversations rather than the precise language. However, once the defendant has sufficient notice of the nature of the communications complained of it is the function of the jury rather than of rigidly applied pleading rules to ascribe weight to the inexactness of such complaints.

We conclude this is the proper approach under the Tennessee Rules of Civil Procedure which have supplanted the common law rule followed in Lackey. Plaintiff’s assignment of error is sustained since she offered proof of words substantially the same as those alleged.

However, the defendant asserts that there is no material evidence in the record on the issue of damages which would require submission of the case to the jury.

Our Supreme Court recently noted that the United States Supreme Court has eliminated, on constitutional grounds, presumed damages in defamation suits. The plaintiff is now required to prove actual damages in all defamation cases. Memphis Pub. Co. v. Nichols, 569 S.W.2d 412 (Tenn.1978).

At the trial, plaintiff’s tax returns were introduced to show that she had suffered no loss of revenues from her business since the occurrence of the alleged slander. And defendant asserts that she has, therefore, suffered no compensable damage. This argument is based upon a misapprehension of the law. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the case followed by the Tennessee Supreme Court in Nichols, abolishing the per se/per quod distinction, states as to the actual damage requirement:

It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We need not define “actual injury,” as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury. 418 U.S. at 350-1, 94 S.Ct. at 3012.

Failure to prove special damages or out-of-pocket loss is not necessarily determinative. The issue is whether the record contains any material evidence of the types of injury outlined in Gertz. If there is material evidence on any of the elements of damages, the cause must be submitted to the jury.

In this regard we are required to consider all the evidence favorable to the plaintiff, drawing all reasonable inferences therefrom, disregarding all countervailing evidence. Lowe v. Irvin, 52 Tenn.App. 356, 373 S.W.2d 623 (E.S.1963).

As noted supra, plaintiff proved no special damages. The only possible damages that could arise would be derived from any actual harm inflicted by the defamation. There is no evidence whatsoever of any impairment of reputation and/or standing in the community and, on the issue of personal humiliation and mental anguish and suffering, the only evidence in this regard is that plaintiff was under mental stress and strain independent of the defamatory utterance and she stated when she was apprised of the utterance in the telephone conversation: “Well, the telephone call was quite upsetting. This was in a series, I think, that had been upsetting to me in my business. And when this occurred, I went to my lawyer’s office and sat down, and, I said, ‘Where does it stop. I can’t conduct business in this manner.’ ”

She further stated that, as a result, she was unable to concentrate in her business and concluded: “I think it was the unknown that bothered me more than anything else.” Plaintiff’s assertions are mere conclusions; plaintiff’s evidence establishes that she sustained no special damages in connection with her business and no physical suffering or illness. Moreover, her reaction to the telephone call apprising her of the utterance may fairly be characterized as one of anger rather than anguish — mere annoyance or loss of peace of mind do not constitute recoverable special damages. Mell v. Edge, 68 Ga.App. 314, 22 S.E.2d 738 (1942).

We conclude there is no material evidence in the record on the issue of damages and the verdict should have been directed on that issue and where the trial court has reached the correct result but for the wrong reason the judgment will be affirmed on appeal. Adams v. Underwood, 225 Tenn. 428, 470 S.W.2d 180 (1971); Cherokee Ins. Co. v. U.S. Fire Ins. Co., 559 S.W.2d 337 (Tenn.App.1977).

The judgment of the trial court is affirmed with costs of appeal assessed against appellant.

PARROTT, P. J. (E.S.) and GODDARD, J., concur.

      . The publication was via a long distance telephone call to a resident of Cleveland, Tennessee. There is no evidence of publication in the “community”.

      . She attributed this to “many other things” as well and added, “[R]ight at that time, I was worried about other things in a personal matter; and, I really just had more than I could handle at this time, both at home and at work,


author: DWYER, Judge. O’BRIEN, Justice,

text:
    John Walter NOLAN, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 29, 1979.

      F. Glen Sisson, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, W. Fred Axley, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

DWYER, Judge.

Convicted of receiving stolen property over the value of $100 and sentenced to not less than five nor more than ten years in the penitentiary, John Walton Nolan appeals to this court with his sole assignment of error challenging the trial court’s sustaining the legality of the search and seizure of certain items taken from a motel room and the appellant’s automobile.

At the pre-trial hearing on the appellant’s motion to suppress, the following is a summation of the evidence as disclosed by the record.

On August 1, 1977, Memphis police officers responded to a disturbance call from the assistant manager of the Rodeway Inn located at 2949 Airways. When the officers arrived they found the appellant, who appeared to be intoxicated, kicking the door of Room 165 and using profanity. A woman and a young boy were with the appellant. The officers placed the appellant under arrest for being drunk and disorderly and advised him of his rights. They searched him and found a vial of pills that the officer suspected to be narcotics. (The pills were not identified at the hearing or at the trial.) They then placed him in their squad car. The officer then related that the assistant manager advised him that the appellant earlier had asked for the key to Room 118 stating he had belongings in that room. The assistant manager had refused the appellant’s request because the room was not registered to him but to a Danny Simms. The officer accompanied the assistant manager to Room 118, and using a passkey, they entered the room. Therein the officer observed two television sets, one of which the assistant manager identified as belonging to the motel. The officer then observed a white substance in a spoon and several syringes on the floor. The officer also noted that the wires to a telephone had been clipped and spliced into the wires of a tape recorder. He also found the appellant’s billfold on the dresser and two sets of car keys.

The officer testified that he sensed the second television set was stolen although at the time he was unaware of the actual burglary from which the articles had been purloined. At this time the youth that was with the appellant, upon being questioned, directed the officer to the appellant’s car in the motel parking lot. He further testified that when drugs were involved in an arrest it was a departmental regulation to inventory the automobile before impounding it. A search of the trunk of the appellant’s car, using the keys found by the officer in Room 118, revealed a C. B. radio, a cash register and coins of various denominations. (The C. B. radio was identified at the trial as being stolen from a burglarized home.)

After the officer inventoried the car, the assistant manager requested that he accompany her to a third room, Room 135, where he found Richard Keith Norris who appeared to have passed out on the bed. (At the trial the assistant manager testified Richard Norris had registered in Room 118 as Danny Simms.)

We will first evaluate the search of the motel room. We think that since the appellant was not registered as the occupant of Room 118 he lacks standing to attack the search. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

We will now discuss the search of the automobile. At the threshold, a war-rantless search is per se unreasonable unless it is conducted within a recognized exception, United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 76 L.Ed. 59 (1951), such as an incident to a lawful arrest, one made in hot pursuit, and stopping an automobile with probable cause. The trial court concluded that the warrantless search of the appellant’s automobile was reasonable on two predicates: (1) it was a lawful inventory search, and (2) it was a lawful “probable cause” search under exigent circumstances. The State here makes no argument as to (2), but in deference to the trial court we will put both (1) and (2) under judicial scrutiny, recognizing there is no set form for determining whether a search is reasonable or not, for all searches must depend on their own facts and circumstances.

The appellant contends the warrant-less search was made in contravention of both federal and state constitutions. We are in accord with the appellant and in disagreement with the learned trial court on both of his predicates holding the search to be reasonable. In search and seizure questions the guarantees of the Fourth Amendment of the United States Constitution and Article 1, § VII of the State Constitution must be liberally construed in favor of the citizen. Hughes v. State, 176 Tenn. 330, 141 S.W.2d 477 (1940). We think the founding fathers in drafting our Constitution intended that citizens should remain secure in their properties and be protected from illegal intrusions by government officials. This premise, plus taxation without representation, was the very basis upon which this democracy came into existence and is as viable now as then. The protection or security from unreasonable searches inures without exception, alike to all citizens regardless of their station in life.

We will now examine the search under the inventory theory. There is a vast difference between the facts in the case sub judice and South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), as relied upon by the State. In the case sub judice, appellant’s car was parked on the lot of the motel and was not creating any traffic congestion, was not posing a hazard of any type, and from the record, was not violating any local ordinance. In Opperman, supra, the legal impoundment of the vehicle was brought about after multiple violations of municipal parking ordinances had been placed on the vehicle. The police impounded the vehicle with removal to a police lot, requiring an inventory of its contents to protect the owner as well as the police from claims of theft and to protect the public.

Further, there was no basis for concern as to public safety (gun in car) and the car did not constitute a nuisance as in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2423, 37 L.Ed.2d 706 (1973). In short, the' Fourth Amendment and Article 1, § VII of the State Constitution cannot be bartered away by a police regulation which commands the officer to make an inventory search of vehicles, as here, when the arrest was removed from and not connected with the automobile. What the officer left unsaid about departmental policy in drug cases requiring an inventory is that there must be a nexus between the drugs and the car in some manner before the departmental policy can pass constitutional muster. Moreover, while not controlling, there is no evidence in this record that the pills found on appellant were contraband. While the inventory search may have been prompt effective police action which uncovered stolen property, and commendable perhaps in law enforcement circles, it was, as we view the circumstances, an act without sanction of law. We therefore think the “inventory” of the automobile justifying the seizure is without merit.

We will now turn our attention to the probable cause under exigent circumstances question. The trial court sustained the search on the grounds that the officer had probable cause to believe the appellant’s vehicle had been used either to transport stolen goods to that locale, or possibly contained other stolen goods, and that exigent circumstances existed since the room was rented to a third unidentified party, opening up the possibility that this third party may have been in the vicinity and could have removed the car. It may be true that after observing the second television and finding appellant’s keys in Room 118, the officer assumed from police experience that the television set was stolen, but that fact alone, we think, cannot support “probable cause” to conduct a warrantless search of the appellant’s car some distance removed and unconnected with the location of the television. The Supreme Court of the United States in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) stated:

“The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.”

In short, the fact that the television set found in someone else’s room was stolen, or surmised so by the officer at the time, created no factual foundation other than a good suspicion to the officer that contraband may be in the trunk of appellant’s car. As we understand Coolidge v. New Hampshire, supra, to invoke Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), two facts must be evident to support a warrantless search of an automobile; neither may stand alone: (1) probable cause and (2) exigent circumstances. We think that the exigent circumstances of Carroll and Chambers have no applicability here. The appellant was safely in police custody almost immediately after his arrest. We may safely assume therefore he was in no position to remove his car. The automobile of appellant was not stopped on the highway, it was not fleeting, Fuqua v. Armour, 543 S.W.2d 64 (Tenn.1976). We are in respectful disagreement with the trial court on both counts. On the facts, we think there was no “probable cause” under exigent circumstances to conduct a warrant-less search. The motion to suppress the evidence (the G. B. radio) which came from the trunk of the automobile should have been sustained.

The judgment of the trial court is accordingly reversed. The record is remanded for a new trial.

JOE C. LOSER, Jr., Special Judge, concurs.

O’BRIEN, Justice,

dissenting.

I agree with the majority that an inventory search of defendant’s automobile under the evidence in this case was unjustified. There is very little persuasive authority on this issue among either the State or Federal cases on the subject. The State relies principally on the United States Supreme Court case of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and the cases cited there, as authority to sustain the position that an inventory search was valid. It is essential to note that Opperman is extremely limited in its scope, holding that when vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobile’s contents in response to three distinct needs:

(1)The protection of the owner’s property while the vehicle remains in custody.
(2) The protection of police against claims or disputes over lost or stolen property.
(3) The protection of police officers from essential danger.

A fourth need suggested is to protect the vehicle and its contents against incidents of theft or vandalism. The decision explicitly spelled out that approval of the inventory search was premised on the fact that there was “no pretext concealing an investigatory police motive.” It is significant to note that in Opperman it was said, “None of our prior decisions is dispositive of the issue whether the [4th] Amendment permits routine inventory ‘searches’ of automobiles.”

The record clearly discloses that the search in this case was initiated as part of the investigatory phase of the proceedings. It was obviously an exploratory search for evidence of the criminal offenses the officers believed had occurred. The search was initiated in conjunction with the arrest of defendant on a narcotics charge and the additional evidence of a possible robbery found in Room 118 of the motel. The search was begun by opening the locked trunk of the automobile. The vehicle was not yet in the custody of the police, and though in a semi-public place in the motel parking lot, was not on a public highway or street. The owner was present, and no waiver, or consent to the search was requested by or given to the officers. There was absolutely no evidence presented to the trial judge on which he could base the conclusion that there was an inventory search.

I do not agree that there was not probable cause or exigent circumstances under the facts of this case to proceed with a warrantless search of defendant’s automobile. In a jury-out hearing it was disclosed the officers were initially called to the scene in response to a disturbance originating at the motel where defendant and his vehicle were found. Upon arrival they determined from the motel clerk that defendant had requested a key to Room 118 in the motel. His request had been denied because he was not a registered guest. Defendant was found kicking on the door of Room 165 of the motel, shouting in profane language, when the police arrived. He was placed under arrest for disorderly conduct and public drunkenness. In the course of a search of his person a vial of pills was found which the officer took to be narcotics. He was also charged with possession of narcotics and advised of his rights. Room 118 was registered in the name of a person different from that mentioned by defendant when endeavoring to get the key. He claimed to have personal possessions in that room. The officer accompanied the desk clerk who opened the room to see if it was occupied. When the door was opened the officer observed two television sets in the room only one of which was the property of the motel. The wires to the telephone had been spliced to a tape recorder. On the floor the officers found a spoon containing some white substance and several syringes, or hypodermic needles. They also found a man’s wallet on the dresser and two sets of car keys. The wallet contained defendant’s identification. On the presumption that the television was the fruits of a burglary the officers launched an investigation. A car bearing Arkansas license plates was pointed out to them as defendant’s car by the young boy who was with him at the time of his apprehension. One set of the car keys fit the ignition of the automobile. The officers proceeded to make an inventory search of the car.

The trial judge ruled that the search was good for two reasons. First there was probable cause and exigent circumstances to continue with the investigation and search the vehicle. Second the officers were in the process of impounding the vehicle and were entitled to make an inventory search prior to its impoundment.

The usual rule is that a search or seizure of a vehicle is not authorized without a warrant after it has completed its journey and is at rest on private premises. See Fuqua v. Armour, 543 S.W.2d 64, (Tenn.1976). There is not any authority to the effect that this is an ironclad rule. Undoubtedly the law requires that each case must stand on its own merits. Police officers are frequently penalized for errors in judgment in the course of arrest, or in making searches of persons or properties, while carrying out their duties of law enforcement. There was certainly ample probable cause as well as exigent circumstances to warrant the search. In Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968), the United States Supreme Court said:

“Automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office. (Citations omitted). The cases so holding have, however, always insisted that the officers conducting the search have ‘reasonable or probable cause’ to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search.”

This case was followed by our own Supreme Court in State v. Hughes, 544 S.W.2d 99, (Tenn.1976). In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, (1971), this theory of the law is approved by the suggestion that when there is a criminal suspect close enough to an automobile to procure a weapon, or destroy evidence within it, the police may make a search of appropriately limited scope.

Under the facts considered by the trial judge the officers in this case found property belonging to the defendant in a motel room which he was endeavoring to enter by subterfuge. They found evidence of a felony by the presence there of the extra television as well as the tampering with the telephone. There was also the strong probability of a narcotics violation manifested by the drugs and paraphernalia found on defendant and in the room. It was obvious defendant had a confederate in the vicinity who certainly was in a position to remove the car and its contents before a warrant could be obtained. To disallow this search by holding there was neither probable cause nor exigent circumstances would be to penalize a police officer for prompt, efficient and competent conduct under the facts of this case and would be a travesty on justice.

I would affirm the judgment of the trial court.

      . 428 U.S. 378, 96 S.Ct. 3092, p. 3101, Powell, J., concurring.

      . Testifying before the jury the desk clerk said she entered the room and saw the extra television set prior to summoning the police officer.

      . The officer testified it was police department procedure to seize an arrestee’s automobile and conduct an inventory search prior to removal to a storage lot when an arrest was made involving contraband or apprehension of a burglar in the field.


author: GREENHILL, Chief Justice.

text:
    The STATE of Texas, Petitioner, v. James M. TERRELL et al., Respondents.
    No. B-8167.
    Supreme Court of Texas.
    Sept. 19, 1979.
    Rehearing Denied Nov. 21, 1979.

      Mark White, Atty. Gen., Jack Sparks, Asst. Atty. Gen., Austin, for petitioner.
    Whitten, Sprain, Price, Wagner & Edwards, Marvin S. Sprain, Billy John Edwards and David R. Cobb, Abilene, Webb, Stokes & Sparks, Tom Webb, San Angelo, for respondents.
   GREENHILL, Chief Justice.

The question presented in this Texas Tort Claims Act case is whether the State of Texas is subject to liability for personal injuries resulting from a highway patrol officer’s negligent operation of a motor vehicle.

James M. Terrell and Security National Insurance Company, our respondents, brought suit against highway patrolman James E. White and against the State of Texas, our petitioner, for damages for personal injuries allegedly resulting from a collision of Mr. Terrell’s and Officer White’s automobiles. The District Court rendered summary judgment for the State and severed Mr. Terrell’s suit against Officer White from the suit against the State. The Court of Civil Appeals reversed the summary judgment and remanded the case against the State for trial. 574 S.W.2d 616. We affirm the judgment of the Court of Civil Appeals.

The summary judgment proof shows that the collision in question occurred on December 18, 1975, at about 6:00 p. m., on Highway 67 in Runnels County. Officer White had parked his patrol car on the shoulder of the westbound lane of the highway and was operating radar equipment for the detection of speeding eastbound traffic. Upon detecting a speeding eastbound vehicle, Officer White started his vehicle and moved his car into the westbound lane of the road. As he pulled his vehicle onto the highway, his vehicle collided with Mr. Terrell’s westbound automobile. It is undisputed that Officer White had not turned on either the red light or the siren of his patrol car before the collision occurred.

The State contends that, by virtue of the doctrine of sovereign immunity, it is not subject to suit or to liability for any damages caused by the negligence of Officer White in operating his vehicle. Under this doctrine, the State is not liable for the torts of its officers or agents in the absence of a constitutional or statutory provision creating such liability. Texas Highway Department v. Weber, 147 Tex. 628, 219 S.W.2d 70 (1949).

The Texas Tort Claims Act, article 6252-19, provides for a limited waiver of this immunity. The waiver involved in this case is found in the following provision of the Act:

Sec. 3. Each unit of government in the state shall be liable for money damages for property damage or personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment . . . under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state . . .

Section 14 of the Act, however, provides numerous exceptions to the waiver of immunity found in the above-quoted provision. Two of the exceptions to liability relevant to our consideration of this case are:

(8) Any claim arising out of the action of an officer, agent or employee while responding to emergency calls or reacting to emergency situations when such action is in compliance with the laws and ordinances applicable to emergency action.
(9) Any claim based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection or rebellion or arising out of the failure to provide, or the method of providing, police or fire protection.

The State contends that section 9 exempts the State from liability in this case. The State’s argument is that this provision applies to all claims that arise out of actions taken by policemen in providing police protection. The effect of the State’s broad construction of this statutory exception would be to relieve governmental units from liability for the negligent acts of police and firemen if those acts occur while the government employees are acting in the course and scope of their employment. Since a governmental unit is liable only if its employees or officers are acting within the scope of their employment, this construction of the statute would exempt virtually all activities of police and firemen from the Texas Tort Claims Act. We do not believe the Legislature intended to create such a broad exclusion.

The fundamental rule controlling the construction of a statute is to ascertain, if possible, the intention of the Legislature as expressed in the language of that statute. Calvert v. Texas Pipe Line Co., 517 5.W.2d 777 (Tex.1974). In ascertaining this intent, courts must examine the entire statute or act and not merely an isolated portion thereof. Id. Further, if the intent of the Legislature is ascertained, courts must enforce that intent even though the intent is not altogether consistent with the strict letter of the statute. State v. Dyer, 145 Tex. 586, 200 S.W.2d 813 (1947). Admittedly, the ascertaining of the legislative intent underlying the Texas Tort Claims Act has not proved to be an easy task for Texas courts.

Section 14(9), the exclusionary provision on which the State relies, speaks first to the exclusion of claims “connected with any act or omission arising out of civil disobedience, riot, insurrection or rebellion . .” This provision is similar to those found in the Tort Claims Acts of several states. The purpose of this provision appears to be twofold: 1) to exclude liability for any injuries occurring as a result of police or military efforts to control riots and the like, and 2) to exclude liability for injuries resulting from a government’s decision on how to control the riot or whether to control it at all. Thus, this exclusion for civil disturbances is quite broad in that it covers all acts by government officers and employees as well as all policy-making decisions.

The Legislature’s apparent concern in enacting this provision was, in part, the enormous liability that would fall on local governments as a result of allowing recovery for damages caused by rioting and attempts to control it. Another apparent concern, however, was to prevent judicial review of governmental decisions on how to control these disturbances. Were judges and juries allowed to pass on the wisdom of a city’s decision not to control a riot or prevent subsequent looting, the ultimate authority for making such decisions would no longer lie with the officials who, traditionally, are politically responsible for making such decisions. The Legislature has apparently chosen to let that ultimate authority remain with those government officials.

The second portion of the exclusionary provision in question is the part on which the State relies for immunity. This portion provides that governmental immunity is retained for “[a]ny claim based on an injury or death connected with any act or omission . arising out of the failure to provide, or the method of providing, police or fire protection.” The clause exempting governments from liability for injuries arising out of the failure to provide police or fire protection is clearly designed to avoid judicial review of the policy decisions that governments must make in deciding how much, if any, police or fire protection to provide for a community. Thus, this clause has a purpose similar to the second purpose underlying the provision excluding injuries arising out of riots and other civil disturbances. For the reasons given below, we think that it was solely this second purpose that the Legislature considered in enacting the second portion of this exclusion.

This exclusion of policy decisions from judicial review is similar to another exclusion in the Texas Tort Claims Act; article 5262-19, section 14(7). Section 14(7) excludes liability for all claims based on a government’s failure to perform an act when the law leaves performance of the act to the discretion of the government. Section 14(7) appears to be broad enough to encompass the exclusion for failure to provide police or fire protection. As we understand the two provisions, the purpose of both is the same: to avoid a judicial review that would question the wisdom of a government’s exercise of its discretion in making policy decisions. The interests to be served by these provisions are several— e. g., effective, unfettered performance of officials in making policy decisions and the maintenance of the separation of powers between the executive, legislative, and judicial branches of government.

The State, however, relies on another clause in this exclusionary provision concerning police and fire protection. This clause is that exempting liability for injury or death arising out of “the method of providing” police or fire protection (emphasis added). The State would construe this clause to be a general exclusion for any act or omission that occurs while an officer is providing police or fire protection to the public. We think that the Legislature did not intend to create such a broad exclusion.

The term “method” is defined as “a procedure or process for attaining an object” and as an “orderly arrangement, development or classification.” Webster’s Third New International Dictionary 1422-23 (1966). The term is synonymous with the words “mode,” “plan,” “design,” or “system.” Id. Thus, the “method” of performing an act refers to the decision or plan as to how the act is to be performed. Similarly, the “method of providing police or fire protection” refers to the governmental decisions as to how to provide police or fire protection.

This analysis indicates that the provision concerning the “failure to provide” police or fire protection and the provision concerning the “method of providing” this protection have the same purpose — i. e., avoiding judicial review of policy decisions made by a governmental unit in charge of providing police or fire protection. We think, therefore, that the Legislature intended to exclude from the Act only those acts or omissions which constitute the execution of or the actual making of those policy decisions. For example, damages resulting from a government’s decision to provide only three fire trucks for a community may not be recovered against the governmental unit on the theory that the government was negligent in providing an inadequate number of fire trucks. Similarly, a government would not be liable for any injury or death resulting from a government’s decision to use only minimal police efforts to control a riot or to control crime in a particular area of a city. Cf., Westminster Investing Corp. v. G. C. Murphy Co., 140 U.S.App.D.C. 247, 434 F.2d 521 (D.C. Cir. 1970).

Thus, if the negligence causing an injury lies in the formulating of policy — i. e., the determining of the method of police protection to provide — the government remains immune from liability. If, however, an officer or employee acts negligently in carrying out that policy, government liability may exist under the Act. The instant case provides a good example of the distinction between these two forms of negligence. Here, the Texas Highway Department, pursuant to a statute fixing maximum speeds, has a policy of detecting and apprehending individuals who exceed the speed limit by use of radar and motor vehicles. Such a policy decision is not subject to an attack of negligence under this Act. This policy, however, obviously does not include directing the officer to strike any vehicle in his path in apprehending a speeder. The accident which occurred in this case was not a part of the formulated policy. Therefore, the State is subject to liability for injuries resulting from the negligence, if any, of the highway patrolman in colliding with Mr. Terrell’s vehicle.

The Court of Civil Appeals, in holding that Mr. Terrell stated a cause of action against the State under the Texas Tort Claims Act, employed a different rationale from that given herein. The lower court reasoned that section 14(9), the exclusionary provision involving police and fire protection, must be construed together with section 14(8), which provides that the following claims are excluded from the Act:

(8) Any claim arising out of the action of an officer, agent or employee while responding to emergency calls or reacting to emergency situations when such action is in compliance with the laws and ordinances applicable to emergency action.

In reading these two provisions together, the court reached the conclusion that the Legislature intended section 14(8) to be a limitation on section 14(9) so that the State would be exempt from liability for the negligent operation of a police vehicle only when the officer was responding to an emergency situation and complying with section 14(8), the emergency exemption. The court then noted that the State was not immune under the emergency provision because Officer White had failed to utilize his siren or red light, as required by article 6701d, sections 24, 124. While we agree with the holding of the Court of Civil Appeals that the emergency exclusion under section 14(8) was inapplicable, we disapprove the court’s construing sections 14(8) and 14(9) together. Each of the twelve exemptions listed in section 14 of the Act is a distinct exemption, complete unto itself. We agree with the lower court’s statement that courts must examine the entire Act. See State v. Dyer, 145 Tex. 586, 200 S.W.2d 813 (1947). This rule of construction, however, does not permit courts to engraft the limitations of one statutory provision onto another.

The reasoning of the Court of Civil Appeals is similar to, and in fact based on, the reasoning in County of Brazoria v. Radtke, 566 S.W.2d 326 (Tex.Civ.App. — Beaumont 1978, writ ref’d n. r. e.). For the reasons given above, we also disapprove of the rationale that the Court of Civil Appeals used in the Radtke case; but we approve the result of Radtke.

The State relies on language in two appellate opinions as authority for its contention that section 14(9) excludes liability for all acts or omissions committed by a police officer while providing police protection. These two decisions are Davis v. County of Lubbock, 486 S.W.2d 109 (Tex.Civ.App.— Amarillo 1972, no writ) and Lloyd v. University of Texas, 524 S.W.2d 958 (Tex.Civ.App. — Beaumont 1975, writ ref’d n. r. e.). To the extent that the reasoning in those two cases conflicts with this opinion, those cases are disapproved. We also disapprove similarly broad language found in Strickland v. City of Denver City, 559 S.W.2d 116 (Tex.Civ.App. — Eastland 1977, no writ).

Our holding in this case is that the State of Texas is subject to liability for injuries arising out of the negligence, if any, of Officer White in operating his vehicle, provided such negligence occurred while Officer White was acting within the scope of his employment and not in an emergency.

The judgment of the Court of Civil Appeals is affirmed.

      . Security National Insurance Company has paid to Mr. Terrell workers’ compensation benefits and has intervened in this suit to protect its subrogation rights.

      . Unless otherwise indicated, all statutory references herein are to Texas Revised Civil Statutes Annotated.

      . In oral argument, the attorney for Respondent Terrell conceded that the highway patrolman was providing police protection at the time the accident occurred.

      . Article 6252-19, section 3.

      . See Lowe v. Texas Tech University, 540 S.W.2d 297, 301-03 (Tex.1976) (Greenhill, C. J., concurring); County of Brazoria v. Radtke, 566 S.W.2d 326, 330 (Tex.Civ.App.—Beaumont 1978, writ ref'd n. r. e.) (Keith, J., concurring). See also Note, 55 Texas L.Rev. 719 (1977).

      . See, e. g., Idaho Code section 6-904(7); Okla. Stat. tit. 51, section 155(6); Tenn.Code Ann. section 23-3311(7).

      . See Comment, 37 Brooklyn L.Rev. 434 (1971); Riots and Municipal Liability, 14 New York L.F. 824 (1968).

      . Section 14(7) provides the following exclusion:
      (7) Any claim based upon the failure of a unit of government to perform any act which said unit of government is not required by law to perform. If the law leaves the performance or nonperformance of an act to the discretion of the unit of government, its decision not to do the act, or its failure to make a decision thereon, shall not form the basis for a claim under this Act.

        .See Greenhill and Murto, Governmental Immunity, 49 Texas L.Rev. 462, 472 (1971); Note, The Discretionary Exception and Municipal Tort Liability: A Reappraisal, 52 Minn.L.Rev. 1047 (1968).


author: DOUGLAS, Judge.

text:
    Arturo FRAIRE, Appellant, v. The STATE of Texas, Appellee. Edmundo MORALES, Appellant, v. The STATE of Texas, Appellee. Mario Rubio GUZMAN, Appellant, v. The STATE of Texas, Appellee. Mario GUZMAN, Appellant, v. The STATE of Texas, Appellee. Gus ARGEANAS, Appellant, v. The STATE of Texas, Appellee. Kosta Andrew ARGEANAS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 61331-61336.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 26, 1979.
    Rehearing En Banc Denied Oct. 31, 1979.

      Robert E. Golden, El Paso, for Fraire and Morales.
    Richard C. Robins, El Paso, for Guzman in 61333 and 61334.
    Gary J. Hill, El Paso, for Argeanas in 61335 and 61336.
    Steve W. Simmons, Dist. Atty. and Leo B. Garcia, Asst. Dist. Atty., El Paso, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and CLINTON, JJ.
   OPINION

DOUGLAS, Judge.

Arturo Fraire was convicted of burglary of a habitation; his punishment was assessed at eight years, probated. Edmundo Morales was convicted for the offense of aggravated robbery; his punishment was assessed at five years. Mario Rubio Guzman was convicted for the unauthorized use of a vehicle; his punishment was assessed at seven years, probated. Mario Guzman was convicted of burglary of a habitation; his punishment was assessed at ten years, probated. Gus Argeanas was convicted for the offense of robbery; his punishment was assessed at eight years. Kosta Andrew Ar-geanas was convicted for aggravated robbery with a prior conviction alleged for enhancement; his punishment was assessed at twenty-five years. He was also convicted for aggravated robbery, three counts; his punishment was assessed at twenty-five years.

In each of these cases it is contended that the trial court erred in not setting aside the indictment when the trial did not begin within 120 days of July 1, 1978, under the provisions of Article 32A.02, V.A.C.C.P.

In Cause No. 61,331, Arturo Fraire was arrested January 27, 1978. The State filed its announcement of ready July 3,1978. On October 27, 1978, appellant filed a motion requesting an immediate trial. On October 30,1978, he filed a motion to dismiss prosecution because he had not been brought to trial within 120 days of July 1, 1978, the effective date of Article 32A.02, supra, the Speedy Trial Act. The motion was overruled. On November 8, 1978, he entered a plea of guilty.

Article 32A.02, Section 1, V.A.C.C.P., provides:

“A court shall grant a motion to set aside an indictment, information, or complaint if the state is not ready for trial within:
“(1) 120 days of the commencement of a criminal action if the defendant is accused of a felony.”

Fraire relies upon Wade v. State, 572 S.W.2d 533 (Tex.Cr.App.1978), which held that for causes pending at the effective date of the Act the 120 day period began July 1, 1978.

Section 3 of the Act provides that the failure of a defendant to move for a discharge under the provisions of this article prior to trial or the entry of a plea of guilty constitutes a waiver of the rights accorded by this article.

There are many instances in the Act which exclude certain time before the trial before the Act is applicable. It was not provided for by the Legislature that the cause must be tried within 120 days. Unusual circumstances may justify further delay.

In each case the State announced ready for trial within the 120 day period starting from July 1, 1978. This announcement was unchallenged by either appellant. The announcement is prima facie showing that without challenge or rebuttal by an accused the provision of the statute has been complied with.

We hold that when the State announces ready and there is no challenge to this announcement to show otherwise by an accused we will presume that the State was ready. Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979) (opinion concurring in part and dissenting in part at page 919). See also Hazen v. Pickett, 581 S.W.2d 694 (Tex.Cr.App.1979).

The contention by one of the appellants that the constitutional right of the Sixth Amendment to the Constitution of the United States guaranteeing a speedy trial has been violated was not raised in the trial court and will not be considered.

The facts in the other cases show different dates but in each case the State announced ready within the 120 day period of the effective date of the Speedy Trial Act, and the statute for the reasons set out above has been complied with.

No error has been shown. The judgments are affirmed.

      . Section 4 of the Act provides:
      “In computing the time by which the state must be ready for trial, the following periods shall be excluded:
      “(1) a reasonable period of delay resulting from other proceedings involving the defendant, including but not limited to proceedings for the determination of competence to stand trial, hearing on pretrial motions, appeals, and trials of other charges;
      “(2) any period during which the defendant is incompetent to stand trial;
      “(3) a period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel, except that a defendant without counsel is deemed not to have consented to a continuance unless the court advised him of his right to a speedy trial and of the effect of his consent;
      “(4) a period of delay resulting from the absence of the defendant because his location is unknown and:
      “(A) he is attempting to avoid apprehension . or prosecution; or
      “(B) the state has been unable to determine his location by due diligence;
      “(5) a period of delay resulting from the unavailability of the defendant whose location is known to the state but whose presence cannot be obtained by due diligence or because he resists being returned to the state for trial
      “(6) a reasonable period of delay resulting from a continuance granted at the request of the state if the continuance is granted:
      “(A) because of the unavailability of evidence that is material to the state’s case, if the state has exercised due diligence to obtain the evidence and there are reasonable grounds to believe the evidence will be available within a reasonable time; or
      “(B) to allow the state additional time to prepare its case and the additional time is justified because of the exceptional circumstances of the case;
      “(7) if the charge is dismissed upon motion of the state or the charge is disposed of by a final judgment and the defendant is later charged with the same offense or another offense arising out of the same transaction, the period of delay from the date of dismissal or the date of the final judgment to the date the time limitation would commence running on the subsequent charge had there been no previous charge;
      “(8) a reasonable period of delay when the defendant is joined for trial with a code-fendant as to whom the time for trial has not run, if there is good cause for not granting a severance;
      “(9) a period of delay resulting from detention of the defendant in another jurisdiction, if the state is aware of the detention and exercises due diligence to obtain his presence for trial; and
      “(10) any other reasonable period of delay that is justified by exceptional circumstances.”


author: CADENA, Chief Justice.

text:
    COVE INVESTMENTS, INC., Appellant, v. Clinton MANGES et al., Appellees.
    No. 16050.
    Court of Civil Appeals of Texas, San Antonio.
    June 13, 1979.
    Rehearing Denied Sept. 25, 1979.
    Garland F. Smith, Smith, Mcllheran, Lauderdale & Jones, Weslaco, for appellant.
    Rufus Wallingford, Fulbright & Jawor-ski, Houston, for appellees.
   OPINION

CADENA, Chief Justice.

Appellant, Cove Investments, Inc., a Texas Corporation whose entire stock is owned by Vannie E. Cook, Jr., appeals from a judgment denying its motion for summary judgment and granting the motions for summary judgment filed by appellees, Clinton Manges, Helen Ruth Manges, Duval County Ranch Company and the Bank of the Southwest National Association. Cove Investments, Inc., will be referred to in this opinion as “Cove”.

The transcript in this case contains more than 1,200 pages and the litigation involves various parties and several suits, some of which are still pending in the trial court. Much of the material contained in the transcript is irrelevant to this appeal and could well have been omitted. For the purpose of this appeal, the result of the judgment below is that Cove take nothing by its suit which sought recovery of mineral interests in certain lands.

The controversy originated in a suit filed in Starr County by Ruben Guerra complaining of Manges’ refusal to execute oil and gas leases on certain lands in Starr and Jim Hogg counties in which Guerra and Manges owned undivided interests and as to which Manges held the executive rights. Shortly after this suit was filed, J. C. Guerra filed a similar suit, involving the same lands, in Jim Hogg County. The Jim Hogg suit also named the Bank as a defendant. Guerra’s pleading in this second case alleged that Bank held a lien on the executive rights held by Manges.

Cove intervened in the Starr County suit, alleging that it owned the mineral interests in all of the lands involved in the two suits. Both suits proceeded independently of each other until the trial court in this case granted the summary judgment in favor of ap-pellees and entered severance orders thus rendering the judgment from which Cove appeals a final judgment for the purpose of appeal.

The facts relevant to this appeal may be summarized as follows:

1. In December, 1968, Manges was attempting to purchase certain lands from the V. C. Guerra estate (identified in this opinion as the VCG lands) and from the M. Guerra & Sons partnership (identified in this opinion as the MGS lands). The M. Guerra & Sons partnership was in receivership at that time.

2. The money with which Manges proposed to purchase the lands was borrowed by him from Cook. The oral agreement between Cook and Manges, in addition to requiring repayment of the money advanced by Cook ($2,000,000.00), provided that when Manges acquired the lands in question Cook would have an option to purchase one-half of the lands and mineral interests acquired by Manges.

3. On December 10, 1968, Manges executed and delivered to Cove, Cook’s nominee, two mineral deeds. One of these deeds conveys to Cove the mineral interest in the MGS lands, while the other is a conveyance of the mineral interest in the VCG lands. Although both deeds are in the form of an absolute conveyance, it is undisputed that the deeds were executed and delivered as a guarantee of Manges’ good faith in carrying out his agreement with Cook. These deeds were not recorded until August, 1975.

4. In February, 1971, Manges received a deed, executed by the receiver of the M. Guerra & Sons partnership, conveying to Manges about 40,000 acres of MGS lands, including one-half of the mineral rights as well as the executive rights to the entire mineral interest.

5. Manges and Cook orally agreed, on or about February 25, 1971, that Cove was to receive, in lieu of the 1968 mineral deeds, the surface estate in 27,000 acres of MGS land and one-half of all the mineral interests which Manges might acquire in the MGS and VCG lands. At this time Manges executed and delivered to Cove a deed conveying the surface interest in 27,000 acres of MGS land.

6. On March 18, 1971, Manges executed and delivered to Cove’s trustee a deed purporting to transfer a one-half mineral interest in the MGS lands. This deed was returned to Manges for correction, since it should have conveyed one-half of the mineral interest acquired by Manges in both the MGS and VCG-lands, rather than all the mineral interest which Manges had acquired in the MGS lands.

7. Manges refused to execute and deliver a corrected deed, and in August, 1975, Cove filed the 1968 deeds with the county clerk.

By its pleadings Cove sought judgment (1) awarding it title to and possession of the entire mineral interest in the MGS and VCG “lands, plus executive rights to lease the entire minerals of said lands, to the extent same were acquired by Manges,”; or (2) awarding it title to and possession of such mineral and executive rights, with a constructive trust in favor of Manges “for a beneficial interest in one-half of said minerals”; or (3) declaring, should the court determine that Manges is the owner of such mineral and executive rights, that Manges holds such rights “subject to a constructive trust in favor of . Cove, for a beneficial interest in one-half of said minerals.”

It is clear that Cove’s claim is based on the two mineral deeds executed by Manges in 1968. Cove’s principal contention is that the 1968 deeds, being absolute in form, must be given effect and that the parol evidence as to their intended effect must be disregarded. Cove relies on the well-settled rule which forbids the introduction of parol evidence of contemporaneous agreements to vary the import of a deed. See Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515 (1946). But it is equally well-settled that parol evidence is admissible to show that a grantor did not intend that a deed operate as a present conveyance of title. Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257 (Tex.1974). This latter rule finds frequent application in cases where a deed absolute on its face was intended to operate only as security for the performance of an obligation by the grant- or. In such cases, extrinsic or parol evidence is admissible to show that what purports to be an absolute conveyance was intended only as a security arrangement. Thigpen v. Locke, 363 S.W.2d 247 (Tex.1962). In this case it is undisputed that the two 1968 mineral deeds were executed by Manges and delivered to Cove merely to secure performance by Manges of the obligations incurred by him under the oral agreement. Under these circumstances, the two 1968 instruments cannot be given effect as conveyances of the mineral estates described in such deeds.

Nor can Cove rely on the oral option agreement of 1968 or on the “settlement agreement” entered into orally in 1971. Neither of these agreements can be enforced in the face of the statute of frauds. Article 1288, Tex.Rev.Civ.Stat. Ann. (Vernon 1962); See also Tex.Bus. & Cdm.Code Ann. § 26.01 (Vernon Supp.1978-1979). This statute prevents enforcement of an oral option to purchase land. See Michael v. Busby, 139 Tex. 278, 162 S.W.2d 662 (1942); 26 Tex.Jur.2d Frauds, Statute of § 71 (1961).

Cove’s tenth point complains of the granting of summary judgment in favor of Manges “during a period of time when discovery was denied to Cove.” All of Cove’s ten points are grouped together for the purpose of argument, and we find no portion of the brief which can be considered as a briefing of the tenth point. In any event, the brief does not reflect that this obstacle to the rendition of summary judgment, if obstacle it was, was called to the attention of the trial court.

The judgment of the trial court is affirmed.


author: RALEIGH BROWN, Justice.

text:
    Forrest H. PURVIS et al., Appellants, v. HOLIDAY INN, INC. et al., Appellees.
    No. 5326.
    Court of Civil Appeals of Texas, Eastland.
    July 5, 1979.
    Rehearing Denied July 26, 1979.

      Joe N. Boudreaux, Smith, Schutze & Bou-dreaux, Dallas, for appellants.
    Gordon H. Rowe, Jr., Gardere, Porter & DeHay, Dallas, Richard B. Ouer, Law Offices of A. L. Breeland, Dallas, for appel-lees.
   RALEIGH BROWN, Justice.

This is an invasion of privacy case. Forrest H. Purvis and wife, Gloria D. Purvis, individually and as next friend of their minor daughters, Saundra Denise Purvis and Dianne Michelle Purvis sued Holiday Inn, Inc. and Prattco, Inc., individually and d/b/a Holiday Inn D-FW Airport to recover actual and exemplary damages sustained when their private use of defendants’ motel room as registered paying guests was willfully and outrageously interfered with in the middle of the night. The jury (1) found that Amin Baji, defendants’ employee, willfully interfered with plaintiffs’ private use of their motel room in such a manner as to outrage, or cause mental suffering, shame or humiliation to a person of ordinary sensibility, and that such interference was a proximate cause of the suffering of mental anguish by the plaintiffs except Saundra Denise Purvis; (2) awarded damages of $6,000 each to Forrest and Gloria Purvis, $3,000 to Dianne Michelle Purvis and no damages to Saundra Denise Purvis; and (3) found that the sum of $25,000 should be awarded against defendant motel as exemplary damages. Judgment was entered by the court for the actual damage award but denied the exemplary damages. Plaintiffs filed a limited appeal challenging the denial of exemplary damages. We affirm.

The issue is whether managerial capacity and scope of employment, or ratification by a managing agent, were established as a matter of law since no special issues inquiring as to such matters were submitted.

The court in Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex.1967) said:

The rule in Texas is that a principal or master is liable for exemplary or punitive damages because of the acts of his agent, but only if:
(a) the principal authorized the doing and the manner of the act, or
(b) the agent was unfit and the principal was reckless in employing him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or
(d) the employer or a manager of the employer ratified or approved the act.
The above test is set out in the Restatement of Torts § 909 and was adopted in King v. McGuff, 149 Tex. 432, 234 S.W.2d 403 (1950). . . .

See also K-Mart No. 4195 v. Judge, 515 S.W.2d 148 (Tex.Civ.App. — Beaumont 1974, writ dism’d).

The evidence establishes that Amin Baji willfully interfered with plaintiffs’ use of the motel room in the middle of the night in an unceremonious fashion. However, after a careful review of the record, we are convinced that plaintiffs failed to establish as a matter of law that Amin Baji was employed in a managerial capacity and was acting in the scope of his employment. There is also no evidence his employer ratified or approved the act.

William Ferguson testified as follows:

Q Can you tell me about when you started and stopped working for Holiday Inn at D-FW, approximately?
A I believe I started there in November — January of ’75 up till March or April of ’76.
Q And what was your position or title there?
A Innkeeper.
Q As innkeeper at that particular Holiday Inn were you actually employed by Prattco, a company called Prattco?
A Yes, they were the franchise lien holders.
Q Did you hold that position of innkeeper the entire time that you were so employed?
A Yes.
Q Just kind of every day words, what does that mean, innkeeper? Describe your job for me.
A Well, I supervised what we called the rooms department of the hotel and the way the chain of command was set up there, had a lateral responsibility with the food and beverage director. We both reported to the director of operations due to the fact that he officed out of the hotel.
Q What was that at that time?
That was Mr. Lamberti. <<
Was there a general manager or did the position of innkeeper encompass that as well as some other duties? o*
Normally it would but not in this situation because of the fact that Mr. Lamberti — I guess I could say his tile would be general manager, vice-president of operations.
During the period of time you were the innkeeper at that particular Holiday Inn location, was there also an employee of Prattco there by the name of Amin, A-m-i-n Baji, B-a-j-i? <©
Yes, there was. <
Was it part of your job — did you have personnel responsibilities, hiring and firing employees? O’
Yes, I did. <
Did you actually hire this man? Of
No, I did not. He was employed before I came to work there. <$
What was his job? <y
His job was that of night auditor. However, I believe his title was night manager. <
Was it a part of your responsibility to supervise him during the time you were innkeeper? ¿o
It’s interesting you should ask that question. He was to report to me functionally and report to Mr. Lam-berti — I believe it was administratively. There was a memo out to that effect when I was hired.
I need some clarification then. When you say report administratively, what does that mean? <3*
Really pretty hard to clarify. If there was a problem at the front desk that I could handle or that was regarding the staffing and things along this line, he reported to me. But any information that Lamberti felt was pertinent should come to his attention as opposed to coming to mine. He had the option to go over my head, is the best way to put it.
Q Let me back up just a minute, and ask you if you will to just describe for me and the court what that position of night manager or night auditor meant. What was Mr. Baji’s job?
A Primarily to take all of the day’s transactions and do what is called in the hotel the night audit which means charge room and tax to everyone’s bill, make sure that any late charges such as club charges, restaurant charges, any long distance calls after 11:00 o’clock at night, anything that involves with making sure the account is ready for the individual if he checks out early the next morning plus checking in any people who may come in after the 11:00 o’clock shift.
Q Now, then, would it be an accurate statement to say that insofar as any problem or complaint that a guest might have during the hours of 11:00 to 7:00 that would involve the night auditor or manager, would you be his superior or his supervisor insofar as that area is concerned?
A Yes, I’d have to say so.

Such evidence is sufficient to create a fact issue as to whether Amin Baji was employed in a managerial capacity on the occasion in question.

We have considered and overrule all points of error. It will not, therefore, be necessary to consider appellees’ cross-point.

The judgment is affirmed.