author: STONE, Judge.

text:
    Nola COPE, Plaintiff-Appellant, v. Jimmy THOMPSON, a Minor, by Harry Thompson, his father and guardian ad litem, Defendant-Respondent.
    No. 9289.
    Missouri Court of Appeals, Springfield District.
    March 12, 1976.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 25, 1976.
    Application to Transfer Denied April 14,1976.

      Donald E. Bonacker, Springfield, for plaintiff-appellant.
    Schroff, Keeter & Glass, Bob J. Keeter, Robert W. Schroff, Springfield, for defendant-respondent.
   STONE, Judge.

A school holiday on November 27, 1970, became a Black Friday for high school student Jimmy Thompson, defendant herein, and more tragically so for Elmer Cope and his family, when a 1970 Plymouth Roadrunner driven by defendant, the sole occupant thereof, crashed into the left side of a 1965 Ford two-door automobile resulting in the death of Mr. Cope, the sole occupant of that vehicle, before any third person reached the scene. In this jury-tried action, plaintiff Ñola Cope, the widow, sought damages of $50,000 for the wrongful death of her husband. Cast by an adverse judgment entered on a jury verdict for defendant Thompson, plaintiff appeals.

Defendant, seventeen years of age at the time of accident, lived in his parental home on Route E in Wright County, Missouri. His regular activities included milking the cows on the home place and attending high school at Mountain Grove. He had been driving about three months prior to the date of accident. During that period, he frequently operated his parents’ Cadillac or the 1970 Plymouth Roadrunner owned by an older married brother, Larry, who also resided in the parental home. The Plymouth was equipped with “oversized” Goodyear G — 70 tires, which had been “taken off” another brother’s “new car.” The “steering” and the “brakes” on the Plymouth were “in good condition,” and it was also “in good mechanical condition.” Using his brother Larry’s Plymouth on the fateful morning of accident, defendant first called on a girl he “was going with ... at the time” and then visited “a little bit” at the home of his grandmother, after which he headed for his home eastbound on Route E. It was then between 11:30 A. M. and noon on a cloudy but “dry” day.

At and near the point of collision, Route E was an east-west highway with a 20-foot bituminous blacktop roadway, the center of which was not lined or otherwise marked. There was no useful shoulder on either side, and approximately “a foot” from each edge of the blacktop, the ground sloped downward into a ditch “about two foot deep.” The collision occurred on the blacktop roadway “at the mouth” of a one-lane dirt driveway into a field on the south side of the highway. This field was a part of the farm on which Mr. and Mrs. Cope had resided for many years prior to the accident, and the hay, which he fed to his cows, was stacked there. From postaccident observation of the damaged Cope automobile and the numerous fragments of hay on that vehicle and scattered around the point of collision, plaintiff’s witness Rippee, a neighbor who heard the crash and was the first person to reach the scene, opined (without objection) that Mr. Cope had “come out of the driveway” and “had started to feed” his cows at another location.

Route E was straight for a distance of about a half mile west of the point of collision, the direction from which defendant Thompson approached. An eastbound driver such as defendant entering the west end of this half-mile stretch descended into a “valley or swale area” and then ascended an incline to the gently-rolling crest, from which the highway sloped gradually downward to the east for a considerable distance. The field driveway used by Mr. Cope entered the south side of Route E on this downgrade. Although the topography of that area thus limited Mr. Cope’s sight distance to the west and defendant’s sight distance to the east, plaintiff’s professional photographer Craig testified that, at a point determined by measurement to have been 270 feet west of the field driveway, an eastbound driver such as defendant could have seen “approximately six inches” of the top of an automobile at that driveway, and defendant’s photographic witness Comstock “stepped off” 210 feet as the intervening distance at which the top of an eastbound automobile such as defendant’s Plymouth approaching the hillcrest would have become visible initially to the driver of an automobile, such as the Cope Ford, in the center of Route E opposite the mouth of the field driveway.

When asked upon trial to state the speed at which he had been traveling as he “approached the Cope home [and] the area where the mishap occurred,” defendant Thompson, the sole surviving eyewitness to the accident, recollected that “I said in my deposition the other day [three days prior to trial] I was going 50 to 55” miles per hour— an answer for which his counsel shortly developed defendant’s explanation that when he last “glanced at my speedometer maybe two or three miles back ... I was going around 50 or 55” and the subsequent elaboration that “I think as I come down that slope before I hit that dip in the road [the valley or swale area] where you come upon the crest I might have been going up to 59, 60,1 don't think I was going over 60 miles an hour.”

Whatever his speed then may have been, defendant declared that, when he first saw the Cope automobile (and that was, so he avouched, as soon as it became visible to an eastbound driver), it “was stopped” headed north, crosswise of, “straight across,” and entirely on, the blacktop roadway with the back bumper of the automobile “a foot or two” north of the south edge of the blacktop at the mouth of the field driveway, and with the front bumper a similar distance south of the north edge of the blacktop. In short, defendant declared the Cope automobile “was parked in the road in my way there” and “he [Mr. Cope] didn’t seem to look at me or nothing.” Immediately reacting to the situation confronting him, he “hit the brakes” and locked all four wheels of the Plymouth so that they laid down four distinct “lines or skidmarks” 120 feet in length. Generally speaking, all of these skidmarks ran (so Trooper Watson said) “parallel to the road.” More specifically, Archie Lawson, plaintiff Nola Cope’s brother who, with plaintiff’s son, Don Cope, made measurements at the scene of the accident, stated that the skidmark nearest to the south edge of the blacktop roadway (the right side for defendant’s eastbound Plymouth) began approximately 4 feet 7 inches from the south edge and, over the 120-foot length of that skidmark to the point of accident, gradually veered about three feet to the left or to the north.

The numerous pictorial exhibits clearly indicate that, with defendant’s Plymouth thus angling slightly to the left or to the north, the initial impact was between the right front portion of the eastbound Plymouth and the left door of the Cope Ford, instantaneously followed by violent damaging contact between the entire front end of the Plymouth and that portion of the left side of the Ford in front of the point of initial impact. As a result of the collision, defendant’s Plymouth spun around counterclockwise “one complete turn [revolution]” and “another half-turn” and came to rest on the dry blacktop roadway headed in a southwesterly direction with its left front wheel near the south edge of, but still on, the blacktop. The impact of the collision catapulted the Cope Ford toward the northeast, and it came, to rest headed in that direction on the north side of Route E with the front end of the Ford against the wire fence on that side of the highway and the right rear “approximately 25 feet” from the north edge of the blacktop roadway (so plaintiff’s witness Short testified) or 21 feet from the right rear of defendant’s Plymouth (according to Trooper Watson).

In addition to the damage to the Cope Ford two-door clearly visible in the photographic exhibits, postcollision examination of that vehicle by witness Don Cope, then a route salesman for a Springfield bakery and formerly a transport driver, disclosed that the left door of the Ford tudor was “caved in . approximately 30 inches,” the left side of the frame was broken about the center of that door, the transmission was “busted,” and the motor support was “knocked loose.” Plaintiff’s neighbor Rip-pee, who heard the crash and reached the scene within two or three minutes, found Elmer Cope dead in the front seat of his Ford. The death certificate discloses that he sustained “severe lacerations to left side of head & neck” and that the “immediate cause of death” was a “fractured neck.”

On this appeal, five points have been properly presented in plaintiff-appellant’s brief and ably argued by counsel for both parties. Additionally, defendant-respondent insists there was insufficient evidence to support either of the assignments of negligence disjunctively submitted in plaintiff’s verdict-directing instruction 3, i. e., that defendant drove at an excessive speed or drove on the wrong side of the road. We initially consider this contention because, if plaintiff did not make a submissible case, trial errors would become wholly immaterial. Wills v. Townes Cadillac-Oldsmobile, Inc., 490 S.W.2d 257, 258(1) (Mo.1973); Osborn v. McBride, 400 S.W.2d 185, 188(1) (Mo.1966); Walker v. Niemeyer, 386 S.W.2d 87, 92(3) (Mo.1965); Howard v. Johnoff Restaurant Co., 312 S.W.2d 55, 56(1) (Mo. 1958).

Of submissibility on excessive speed. In this inquiry, we view the evidence in the light most favorable to plaintiff, accept it as true if it is not entirely unreasonable or opposed to physical law, accord her the benefit of all reasonable inferences arising from the evidence, reject all inferences unfavorable to her, and disregard defendant’s evidence except as it may aid plaintiff’s case. Todd v. Watson, 501 S.W.2d 48, 50 (Mo.1973); Forbis v. Associated Wholesale Grocers, Inc., 513 S.W.2d 760, 763(1) (Mo. App.1974); Van Brunt v. Meyer, 422 S.W.2d 364, 370(7) (Mo.App.1967). We also bear in mind that a jury may believe all or none of the testimony of any witness, or may accept it in part and reject it in part [Hinds v. Kircher, 379 S.W.2d 607, 610(3) (Mo.1964); Kickham v. Carter, 314 S.W.2d 902, 905(1), (Mo.1958); Bridgeforth v. Proffitt, 490 S.W.2d 416, 423 (Mo.App.1973); Jordon v. Johnson, 411 S.W.2d 451, 454(1) (Mo.App. 1967)], and that this prerogative embraces the right to disbelieve testimony even though it be unimpeached and uncontradicted. Mayer v. Orf, 404 S.W.2d 733, 735(4) (Mo.1966); Robinson v. St. John’s Medical Center, Joplin, 508 S.W.2d 7, 11(3) (Mo.App. 1974).

The only eyewitness testimony concerning the speed of the eastbound Plymouth when it reached the point at which defendant could have initially sighted the Cope automobile “parked” crosswise of the two-lane blacktop roadway and blocking both traffic lanes was that of defendant himself who, upon trial, testified that he “might have been going up to 59, 60” but did not “think” he was traveling faster than that. Of course, the jury was not obliged to accept this hesitant, uncertain testimonial offering by defendant [Schneider v. Prentzler, 391 S.W.2d 307, 309(1) (Mo.1965); Haymes v. Swan, 413 S.W.2d 319, 324(3) (Mo.App.1965)]; and, as we shall proceed to point out, in our appellate view of the case the highest speed of 60 miles per hour suggested by defendant did not fit into, and was not harmonious with, the remainder of the evidential mosaic developed upon trial.

By unqualified affirmative answers of “Yes” to leading questions on direct examination, defendant unequivocally confirmed the interrogative summation of his counsel that “[a]s soon as it [the Cope Ford] was visible you [defendant] saw it” and “[a]s quick as you could react you got on the brakes.” Relating these assurances to the record, the triers of the facts could have found that eastbound defendant saw the Cope automobile when the intervening distance between the two vehicles was as long as the 270 feet determined by plaintiff’s witness Craig to have been the sight distance available to an eastbound driver and certainly no shorter than the 210 feet “stepped off” by defendant’s witness Com-stock as the sight distance to the west available to a driver in Mr. Cope’s position, and that as quickly as defendant could react he “hit the brakes” and locked all four wheels of the Plymouth. If defendant had been traveling at 60 miles per hour when he sighted the Cope automobile, he would have moved 66 feet during the reaction time of ¾ second assumed in the absence of evidence on this subject [Roach v. Lacho, 402 S.W.2d 344, 350(10) (Mo.1966); Koogler v. Mound City Cab Co., 349 S.W.2d 233, 237(6) (Mo.1961); Martin v. Sherrell, 418 S.W.2d 209, 213 (Mo.App.1967)], and thus, when he “hit the brakes” and locked all four wheels, the Plymouth still would have been some 204 to 146 feet from the “parked” Cope automobile.

Witness Don Cope offered experimental testimony from which it reasonably might have been inferred that, if defendant had been traveling no faster than 60 miles per hour when he sighted the Cope automobile, he could have brought his Plymouth to an absolute stop well within the 204 feet which, in the most favorable view of the evidence from plaintiff’s standpoint, was available for braking action after the lapse of reaction time. And, since an appellate court may take judicial notice of the limits, although not the precise distance, within which an automobile may be stopped under given conditions [Jones v. Fritz, 353 S.W.2d 393, 396-397(5) (Mo.App.1962); Highfill v. Brown, 340 S.W.2d 656, 664(10) (Mo. banc 1960); Nelms v. Bright, 299 S.W.2d 483, 490(17) (Mo. banc 1957); Eaves v. Wampler, 390 S.W.2d 922, 930(17) (Mo.App.1965), we reasonably might be permitted judicial knowledge that, under the conditions shown in evidence, defendant’s Plymouth moving at 60 miles per hour could have been braked to a stop within a distance of 204 feet. See Autrey v. Swisher, 155 F.2d 18, 21-22(7) (5th Cir. 1946); State v. Arena, 46 Hawaii 315, 379 P.2d 594, 609-610(20), 20 A.L.R.3d 450 (1963). However, we do not here declare or rely upon such judicial knowledge.

Excessive speed need not be shown by direct testimony but may be proved by circumstances. Russell v. Kotsch, 336 S.W.2d 405, 409 (Mo.1960); Rakestraw v. Norris, 478 S.W.2d 409, 416(11) (Mo.App.1972). As we have noted supra, if defendant had been traveling at 60 miles per hour when he sighted the Cope Ford and if, as quickly as he could react (assumed to have been ¾ second during which he would have moved 66 feet), he had “hit the brakes” and locked all four wheels of the Plymouth, that vehicle then would have been within the range of 204 to 146 feet from the “parked” Cope automobile. However, the solid uninterrupted skidmarks laid down by the Plymouth were only 120 feet in length, from which the triers of the facts reasonably could have found that the Plymouth had reached that point when defendant locked the wheels, and hence that during defendant’s reaction time of ¾ second the Plymouth had traveled substantially farther than the 66 feet it would have traversed at 60 miles per hour and thus had been moving at a materially higher rate of speed than 60 miles per hour when defendant initially sighted the Cope Ford.

Furthermore, the jurors had before them relevant evidence that, after the Plymouth had skidded for 120 feet on the dry blacktop roadway, that vehicle was still moving at such speed that the left door of the stationary Cope Ford (crosswise of the roadway) was “caved in . approximately 30 inches,” the left side of the frame and the transmission were broken, the motor support was “knocked loose,” the Ford was propelled in a northeasterly direction for a considerable distance as hereinbefore outlined, and the Plymouth driven by defendant spun around “one complete turn” and “another half-turn.” With all of the foregoing circumstances before them, we are firmly of the opinion that the triers of the facts reasonably could have inferred and found that defendant was traveling at an excessive speed and that this was the proximate cause of the collision. Marshall v. Bobbitt, 482 S.W.2d 439, 442-443(1-3) (Mo. 1972); Wehrkamp v. Watkins Motor Lines, Inc., 436 S.W.2d 698, 702-703, 709 (Mo. 1969); Wolfe v. Harms, 413 S.W.2d 204, 210(5-7) (Mo.1967); Russell v. Kotsch, supra, 336 S.W.2d at 409(4); Lyon v. Southard, 323 S.W.2d 785, 787(1, 2) (Mo.1959).

In her fifth point, plaintiff assigns error in the giving of defendant’s instruction 4, which submitted in the disjunctive two alleged acts of contributory negligence on the part of Mr. Cope, to wit, that he stopped his automobile in a lane reserved for moving traffic or failed to yield the right-of-way. Unless sufficient evidence supported the submission of both acts, the giving of that instruction constituted error. MAI 17.02, Notes on Use; Wolfe v. Harms, supra, 413 S.W.2d at 209—210(1); Robertson v. Grotheer, 521 S.W.2d 452, 459 (Mo.App.1975); Shelton v. Bruner, 449 S.W.2d 673, 676 (Mo. App.1969). The submissibility of the charge that Mr. Cope stopped in a lane reserved for moving traffic is not challenged but plaintiff vigorously insists that the disjunctive charge of failure to yield the right-of-way was not submissible.

In moving from the field driveway onto Route E, Mr. Cope was subject to the duty imposed by § 304.351(5), RSMo 1969, V.A.M.S., that “[t]he driver of a vehicle about to enter or cross a highway from any private road or driveway shall yield the right-of-way to all vehicles approaching on the highway to be entered.” The duty to yield the right-of-way imposed in other situational categories by subsecs. 3 and 4 of § 304.351 is limited to approaching vehicles so close “as to constitute an immediate hazard!” whereas, if taken literally, subsec. 5 would impose a duty to yield, without limitation, “to all vehicles approaching on the highway to be entered.” (All emphasis herein is ours.) Pointing out that subsec. 5 “does not even contain ‘is so close as to constitute an immediate hazard,’ ” defendant’s counsel confidently, albeit mistakenly, declare in their brief that “[h]ere the jury must only find that [Mr. Cope] entered the highway when defendant was approaching.” For, although subsec. 5 ■ is thus absolute on its face, our appellate courts have construed this subsection reasonably and realistically with other subsections of § 304.351 and have held subsec. 5 likewise contemplates and requires that a driver about to enter or cross a highway from a private road or driveway must yield the right-of-way to all vehicles on said highway approaching so close as to constitute an immediate hazard. Taylor v. Schneider, supra, 370 S.W.2d at 728-729(5); Johnson v. Bush, 418 S.W.2d 601, 604-605(3) (Mo.App. 1967); Colby v. National General Ins. Co., 490 S.W.2d 323, 326-327 (Mo.App.1973).

As Mr. Cope was about to enter Route E from the field driveway, he was required to maintain a careful and vigilant lookout and to take cognizance of such traffic hazards as a very careful and prudent person could and should have seen in the same or similar circumstances [Johnson v. Bush, supra, 418 S.W.2d at 604; James v. Berry, 301 S.W.2d 530, 533(5) (Mo.App. 1957)]; but that requirement neither imposed an obligation to observe the unobservable by peering through the hill to the west of the field driveway or by bending his vision over the crest of that hill [Fuzzell v. Williams, 288 S.W.2d 372, 376(10) (Mo.App. 1956)] nor charged him with such knowledge as then could have been revealed only by such supernatural and thaumaturgical means.

The evidence adduced upon trial clearly established that neither Mr. Cope nor defendant Thompson could have seen the other’s vehicle until defendant’s eastbound Plymouth had neared the crest of the hill, more specifically had reached a point which defendant’s evidence showed was no more than 210 feet from the field driveway. And the only evidence (a) concerning the relative positions of the Cope and Thompson vehicles when either operator could have initially sighted the other’s vehicle or (b) as to whether the Cope automobile was then moving or stationary was the testimony of defendant Thompson that the Cope automobile “was stopped” crosswise of, “straight across,” and entirely on the blacktop roadway of Route E with the back bumper “a foot or two” north of the south edge of the blacktop at the mouth of the field driveway and the front bumper a similar distance south of the north edge of the blacktop. Certainly Mr. Cope could not have been guilty of a statutory charge of failing to yield the right-of-way before he could have seen or become aware of defendant’s approaching automobile. See Tener v. Hill, 394 S.W.2d 425, 434(13) (Mo.App.1965); Moore v. Fitzpatrick, 31 S.W.2d 590, 592(7) (Mo.App.1930).

However, defendant argues that “[s]ince [Mr. Cope] had at least 2-3 seconds after [defendant’s] car was visible the jury could reasonably have found that this was sufficient time for him not to have entered or having done so to move on through the intersection so [defendant] could have passed safely.” As defendant’s testimony established, Mr. Cope had entered Route E before he could have seen or become aware of the eastbound Plymouth on the opposite side of the hillcrest west of the field driveway, so there was no submissible issue of negligence for failure to yield the right-of-way before he entered this T-intersection.

In considering the alternative contention that Mr. Cope’s alleged failure to yield the right-of-way was submissible on the theory that he had time, after defendant’s automobile became visible, “to move on through the intersection so [defendant] could have passed safely,” we preliminarily emphasize by reiteration that, when the approach of defendant’s Plymouth initially might have become known to Mr. Cope, his Ford was standing crosswise of the paved roadway with its front and rear ends within one or two feet of opposite edges of the blacktop, thus effectively blocking both traffic lanes. As all of the MAI instructions mandated for use in the submission of intersectional right-of-way issues provide, “[t]he phrase ‘right-of-way,’ as used in these instructions, means the right of one vehicle to proceed ahead of the other.” MAI 14.02 to 14.07, incl. See particularly MAI 14.06 for use in cases arising under § 304.351(5).

We recognize that Mr. Cope had a duty to yield the right-of-way not only at his point of entrance from the field driveway but also while proceeding into this T-intersection (as the right-of-way cases frequently put it) “at least to the extent that [he] might then be able to stop or slacken and let the other car pass.” However, counsel have not cited and we have not found any reported case in which an appellate court has discussed or ruled the submissibility of alleged negligence in failure to yield the right-of-way by moving forward through an intersection ahead of the vehicle having the right-of-way; and, in our view of the case at bar, we need not undertake to plow this virgin field here. For, if it were assumed for the purpose of discussion only (a) that the duty to yield the right-of-way might be so expanded and (b) that defendant’s Plymouth might have been visible to the operator of the Cope automobile for two or three seconds prior to the collision, the evidence in the record before us would not have afforded an evidentiary basis for a finding that during such period Mr. Cope could have moved forward and cleared this T-intersection so that defendant might have passed safely.

In fact, the testimony of defendant himself, the only eyewitness to the tragedy, affirmatively and persuasively indicates to the contrary. Returning to that testimony, we find that defendant declared not only that the Cope Ford “was parked” crosswise of the roadway blocking both traffic lanes except for one or two feet on each outside edge of the pavement but also that “he [Mr. Cope] didn't seem to look at me or nothing.” For Mr. Cope to have “parked” or stopped voluntarily, consciously and without good cause at the place and in the position described by defendant not only would have constituted gross negligence but also, in effect, would have amounted to an open invitation to disaster and the tragic fate that befell him. However, this would have been an invitation which might not reasonably be attributed to him, in view of his maturity, character, and family life-style as reflected in the record.

Two possible and plausible explanations for the stationary position of the Cope Ford and the posture of Mr. Cope (as described by defendant) readily come to mind, to wit, (1) that Mr. Cope, then 75 years of age, might have suffered a sudden spell of vertigo or nausea instinctively prompting an involuntary stop, or (2) that, in moving from the field driveway onto the highway, the motor “died” or was “killed” and he had not yet had sufficient time to restart it or had been unable to start it, as was the unfortunate experience of defendant in Dwyer v. Christensen, 77 S.D. 381, 92 N.W.2d 199, 201 (1958). Of course, mere possibility and plausibility do not afford an acceptable basis for a judicial finding or judgment, and the foregoing comments have been included only for the purpose of further illustrating that there was no evidentiary basis for a finding on one of the alleged acts of contributory negligence submitted by defendant’s instruction 4, i. e., Mr. Cope’s failure to yield the right-of-way.

The other four points presented in plaintiff-appellant’s brief and argued here are. not .discussed or ruled because they concern evidentiary matters or motions for mistrial, no one of which is likely to recur upon retrial. For the giving of defendant’s instruction 4 erroneously submitting Mr. Cope’s alleged failure to yield the right-of-way, the judgment entered on the jury verdict for defendant must be set aside and the cause remanded for a new trial. It is so ordered.

BILLINGS, C. J., concurs.

HOGAN, J., concurs.

TITUS, J., concurs.

FLANIGAN, J., not participating.

      . This construction is in harmony with that accorded right-of-way statutes in other states cast in the same language. E. g., Irvan v. Jamison Oil Co., 205 Va. 1, 135 S.E.2d 153, 156(4) (1964); Temple v. Ellington, 177 Va. 134, 12 S.E.2d 826, 828-829(3, 6) (1941); Pandell v. Hischier, 166 Cal. App.2d 693, 333 P.2d 762, 763(1) (1959); Eagar v. McDonnell Douglas Corp., 32 Cal. App.3d 116, 107 Cal.Rptr. 819, 822 (1973); Webb Transfer Lines, Inc. v. Taylor, 439 S.W.2d 88, 93(6, 7) (Ky.1968); Reed v. Green, 90 Idaho 526, 414 P.2d 445, 448-450(1, 2) (1966); Heinecke v. Hardware Mut. Cas. Co., 264 Wis. 89, 58 N.W.2d 442, 444(2) (1953); Peterson v. Lang, 239 Minn. 319, 58 N.W.2d 609, 612-613(5) (1953); Dwyer v. Christensen, 'll S.D. 381, 92 N.W.2d 199, 202(4) (1958); State v. Arena, 46 Hawaii 315, 379 P.2d 594, 603(9, 10), 20 A.L.R.3d 450 (1963); Adams v. Dennis, 171 Kan. 32, 229 P,2d 740, 742 (1951), recognized as controlling authority in Reimers v. Frank B. Connet Lumber Co., 271 S.W.2d 46, 51(5) (Mo. 1954), a tort action arising out of a Kansas accident.

      . Herr v. Ruprecht, 331 S.W.2d 642, 648(5) (Mo.1960); Schaetty v. Kimberlin, 374 S.W.2d 70, 73 (Mo.1964); Johnson v. West, 416 S.W.2d 162, 165 (Mo.1967); Riley v. Bi-State Transit System, 459 S.W.2d 753, 756(2) (Mo.App.1970); StoneBeld v. Flynn, 347 S.W.2d 472, 479(9) (Mo.App.1961).

      . The evidence properly may be weighed and considered in the light of the instinct of self-preservation [Williams v. Planters Realty Co., 160 S.W.2d 480, 483(3) (Mo.App. 1942)], since the biological fact that all normal human beings love life and shrink from death is a part of common knowledge. Grif-Bth v. Continental Casualty Co., 299 Mo. 426, 445-446, 253 S.W. 1043, 1048(13) (banc 1923); Edwards v. Business Men's Assur. Co. of America, 350 Mo. 666, 680, 168 S.W.2d 82, 90(12) (1943); Gilpin v. Aetna Ufe Ins. Co., 234 Mo.App. 566, 581, 132 S.W.2d 686, 695(8) (1939).


source: Caselaw Access Project

author: HENRY, Justice. HENRY, Justice.

license: Public Domain

text:
    STATE of Tennessee, Petitioner, v. Jessie D. McDONALD, Respondent.
    Supreme Court of Tennessee.
    Jan. 19, 1976.
    Rehearing Denied March 15, 1976.
    Certiorari Denied April 26,1976.
    See 96 S.Ct. 1733.
    Milton P. Rice, Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, for petitioner.
    Jessie D. McDonald, pro se.
   OPINION

HENRY, Justice.

We granted certiorari in this case to consider the single question of whether the reliance of the victim upon the false representation or pretense is necessary to sustain a conviction under Section 39-1901, T.C.A.

We respond in the negative.

I.

Respondent was convicted upon an indictment which charged that he obtained from the county court clerk of Davidson County a clear and unencumbered title to a 1972 Ford LTD automobile which was encumbered by a lien in favor of Purity Dairies Employees Federal Credit Union, by falsely and fraudulently representing that a lien in favor of the credit union upon the automobile had been released and that it was free of encumbrances.

Respondent’s approach was incredibly ingenious and remarkably bold.

Under the name of Jessie D. McDonald, he applied for and received a loan from the credit union to finance the purchase of a new automobile. Upon closing he executed a note and security agreement. He then volunteered to take the documents downtown and apply for a certificate of title. This was the triggering false representation, and the credit union with astonishing credulity and naivete relied upon him.

The next day he presented himself at the County Court Clerk’s Office, using the name of Jessie McDonald, II, and applied for a title certificate. In so doing he falsely and fraudulently gave his own address as the address of the credit union, with the result that the title was issued and mailed to the lien holder at respondent’s address.

Subsequently, using the name of Jessie D. McDonald, II, he assigned the title to his father, Jessie D. McDonald, Sr. Two days thereafter, posing as Jessie D. McDonald, Sr. he presented himself at the County Court Clerk’s Office and applied for a certificate of title. The certificate tendered to the clerk indicated that the vehicle had been sold to McDonald, Sr. and contained a notarized release of the lien, with the credit union’s name stamped thereon. He made affidavit that the vehicle was free of encumbrances.

In order to avoid the sales tax, he executed an affidavit that the automobile was a gift from his son. In connection with the transfer of the license plates, he swore that Jessie D. McDonald and Jessie D. McDonald, Sr. were one and the same. This was true; all McDonalds were one and the same.

Subsequent to this he received a notice that payment was due and he wrote the credit union advising that his loan had been paid in full; that there was no lien on the automobile, and that he was no longer the owner.

This prosecution ensued.

II.

Our review has been limited to the narrow issue of whether the victim must rely upon the false representation-to support a conviction under the statute.

Section 39 — 1901, T.C.A. originated in Chapter 23 of the Public Acts of 1829 and Chapter 48 of the Public Acts of 1841 — 1842.

To our knowledge the first case construing these enactments is McCorkle v. State, 41 Tenn. 333 (1860). The Court declared the ingredients of the offense to be “obtaining the goods by false pretences and with an intent to defraud.” The Court made this significant comment:

As was said by Lord Kenyon (3 Term Rep. 103), the statute creating this offense describes it in terms extremely general. It seems difficult to draw the line, and to say to what cases it shall extend; and therefore we must see whether each particular case, as it arises, comes within it. 41 Tenn. at 336, 337.

This conclusion reached more than a century ago continues to be valid. Not even a statute creating a criminal offense can spell out the specifics with mathematical certainty and, indeed, absolute precision is not required. Both common law concept and constitutional due process are satisfied when the statute informs all citizens as to what the state commands or forbids, and outlines the proscribed conduct with reasonable certainty. Its terminology must give fair warning, Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959), and must not be a trap for the innocent. United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200 (1952). Section 39-1901 meets these standards.

A significant recent case is Beck v. State, 203 Tenn. 671, 315 S.W.2d 254 (1958). There, the Court adopted the holding of State v. Morgan, 109 Tenn. 157, 69 S.W. 970 (1902) and reiterated that the elements of the offense of violating the statute on false pretenses are: “(1) the pretense, (2) the falsity of the same, (3) the felonious and fraudulent intent, (4) the description of the property, and (5) the reliance of the victim upon the representations.” (Emphasis supplied). The state in brief correctly characterizes the fifth element (reliance) as dictum in view of the fact that the false representation was made by Beck directly to the victim, hence the Court was under no necessity to address this requirement. In Morgan, the Court, in passing upon the validity of the indictment, merely analyzed it under five headings, one of them being “reliance” of the victim. Again the Court did not directly address the necessity for reliance.

The latest pertinent pronouncement of this Court was in Mullican v. State, 210 Tenn. 505, 360 S.W.2d 35 (1962) wherein the Court enumerated the elements of the offense thusly:

[T]he false representation made must be representation of a past or existing fact, whether it be by oral or written words or conduct, which is calculated to deceive, or intended to deceive, and does as a matter of fact deceive; and by means of which, by doing these things, the person who does it obtains something of value from the person injured without proper compensation. (citations omitted).
. under this statute the intent to defraud is the gravamen or an essential ■ element in the crime. 210 Tenn. at 511, 360 S.W.2d at 38.

Dicta aside, the courts of this state have never held that the reliance of the victim is an element of the offense proscribed in Section 39-1901. Indeed, there is an analogous line of cases to the contrary. As a matter of fact, Beck, supra, correctly treats as settled law that it is not necessary that the representation must be calculated to deceive a man of ordinary prudence and caution. As pointed out in 12 Vanderbilt L.Rev., pages 1134, 1135 in commenting on this phase of Beck, “Regardless of its merits or demerits in tort law, it would seem strange indeed to let the necessity of such reliance remain in the law of crimes to work a kind of estoppel against victims'of false pretenses who may be deficient in astuteness and vigilance in favor of the perpetrators thereof . . . ” Would it not be equally strange to establish as a part of our law that the reliance of the victim is an essential element of the offense of obtaining money or property under false pretenses?

It is obvious that there must be reliance by someone, but in this modern day and age when fraud and deceit are practiced with sophistication and ingenuity a narrow construction such as this would be tantamount to a judicial conference of the proverbial “license to steal.”

We hold that the reliance of the victim is not an essential element of the offense “false pretense” as defined in Section 39-1901 T.C.A. We hold that our statute is satisfied, in this respect, when the person to whom the false representation is made or the false token or counterfeit letter is offered, relies upon the same to the ultimate detriment of the victim.

An excellent line of reasoning is contained in Commonwealth v. Johnson, 167 Ky. 727, 181 S.W. 368 (1916) [According to our own case of State v. Higgins, 148 Tenn. 609, 256 S.W. 875 (1923) the Kentucky statute is markedly similar to ours]. The Court said:

The statute does not require that the false statement should be made to any particular person, or that it should be with the intention of committing a fraud upon the person to whom the false statement wás made. The offense is committed when the false statement is made, with the intention to commit a fraud, and money or property is thereby obtained.
The purpose of the statute is to punish the perpetrators of fraud committed through any false pretense. The gist of the offense is the successful misrepresentation, regardless of the person to whom it was made. (Emphasis supplied). 181 S.W. at 370.

The judgment of the trial court is reinstated; that of the Court of Criminal Appeals is

Reversed.

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

OPINION ON PETITION TO REHEAR AND MOTIONS

HENRY, Justice.

The petition to rehear is respectfully overruled.

The motion to set aside the conviction is respectfully denied.

The motion for a stay pending application to the Supreme Court of the United States for certiorari is granted, providing the petition is timely filed. Pending the filing and disposition of said petition, the judgment of this Court will be stayed and defendant may remain upon his present bond.

      . Section 39-1901 T.C.A. reads as follows: 39-1901. False pretense. — Any person, who, by any false pretense, or by any false token or counterfeit letter, with intent to defraud another, obtains from any person any personal property, or the signature of any person to any written instrument, the false making of which is forgery, shall, on conviction, be punished as in case of larceny. The words “false pretense” include all cases of pretended buying, borrowing, or hiring, bailment or deposit, and all cases of pretended ownership, where the person obtaining possession intended, at the time he received the property, feloniously to steal the same.


author: FONES, Chief Justice.

text:
    Timothy A. CRAVEN, Plaintiff, v. Fred LAWSON, Defendant.
    Supreme Court of Tennessee.
    Jan. 26, 1976.

      Bernard E. Bernstein, L. Caesar Stair, III, Bernstein, Dougherty & Susano, Knoxville, for plaintiff.
    Robert R. Campbell, Hodges, Doughty & Carson, Knoxville, for defendant.
   OPINION

FONES, Chief Justice.

Timothy Craven sued William D. Lee, III, driver, and Fred Lawson, owner, of a motor vehicle for personal injuries sustained while plaintiff was riding as a passenger. Lawson’s alleged liability was predicated upon Lee operating the automobile with Lawson’s consent and for his use and benefit.

On the Friday preceding a Monday trial date, Craven agreed to accept a sum of money from Lee in exchange for a covenant not to sue. It was understood between Craven and Lee that plaintiff would take a voluntary non-suit as to Lee and pursue his lawsuit against Lawson.

On the trial date, Lawson moved to amend his answer to assert that Craven had given Lee a covenant not to sue and also moved for summary judgment on the ground that the release of Lee extinguished the derivative or vicarious liability of Lawson.

The trial judge sustained both motions on the same day they were filed and presented.

Prior to the entry of orders sustaining Lawson’s motions, plaintiff moved to amend his complaint against Lawson to allege negligent entrustment and other independent acts of negligence and moved the court to vacate the summary judgment on the ground that the motion had not been filed thirty (30) days prior to the hearing thereon as required by Rule 56.03 TRCP. Both of plaintiff’s motions were overruled by the learned trial judge and the Court of Appeals affirmed.

We granted certiorari to consider three (3) issues.

Is the rule requiring that a motion for summary judgment be served at least thirty (30) days prior to the hearing, mandatory or discretionary?

Did the trial judge err in failing to grant plaintiff’s motion to amend his complaint against Lawson?

Did the Uniform Contribution Among Tort Feasors Act change the rule of Stewart v. Craig, 208 Tenn. 212, 344 S.W.2d 761 (1961), that the derivative liability of a master or principal is extinguished by a covenant not to sue the servant or agent?

I.

The Court of Appeals held that the trial judge was in error in passing upon Lawson’s motion for summary judgment on the same day the motion was filed but declared it to be harmless because the outcome of the motion after a thirty (30) day delay would have been the same.

The purpose of the rule is to allow the opposing party time to file discovery depositions, affidavits, etc., as well as to provide full opportunity to amend. In prescribing the thirty (30) day period the rule uses the word “shall” and we hold that it is mandatory and not discretionary.

In this case the facts as pleaded, bearing on the issue made on defendant’s summary judgment motion are undisputed and the question presented is one of law only. In the interest of the orderly and expeditious disposition of litigation and to serve the manifest interest of the parties in this case we must finally decide that legal issue on this appeal, the effect of which is to render harmless the error of the trial judge. However, it should be apparent that where there is the slightest possibility that the party opposing the motion for summary judgment has been denied the opportunity to file affidavits, take discovery depositions or amend, by the disposition of a motion for summary judgment without a thirty (30) day interval following the filing of the motion, it will be necessary to remand the case to cure such error.

II.

It was an abuse of discretion to deny plaintiff’s motion to amend under the circumstances in this case. Plaintiff’s settlement with Lee resulted in Lawson’s assertion of a legal principle that, if sustained, would extinguish the cause of action based solely on derivative liability. This development gave rise to a consideration by plaintiff of any possible grounds of independent negligence, which was of little or no significance theretofore. No dilatory tactics, negligence or other fault can be attributed to plaintiff for failure to offer the proposed amendment earlier. He was entitled to negotiate a settlement with one of the parties and to pursue his cause of action against the remaining party. The fact that plaintiff’s amendment would no doubt have required a continuance, provided no justification for denial in the particular circumstances of this case. The premature grant of the motion for summary judgment obviously upset the appropriate sequence of assertion of plaintiff’s cause of action against the remaining defendant. With respect to the right to amend generally, after a motion for summary judgment has been made, see Moore’s Federal Practice, Second Edition, Volume 6, Section 56.10, p. 2125 et seq.

Rule 15 tells trial judges that leave to amend shall be freely given when justice so requires. As Mr. Justice Henry said in Branch v. Warren, 527 S.W.2d 89 (Tenn. 1975), the rule needs no construction, it means precisely what it says.

III.

T.C.A. Section 23-3105 provides in part:

“23-3105. Effect of release or covenant not to sue upon liability of other tort-feasors.—When a release or covenant not to sue or not to enforce judgment is given in good faith to one (1) of two (2) or more persons liable in tort for the same injury or the same wrongful death;
(a) It does not discharge any of the other tort-feasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and
(b) It discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor.”

In urging that the Uniform Act changed the rule of Stewart v. Craig, supra, plaintiff reasons that the language of the Act embraces vicarious tort-feasors as well as joint tort-feasors and active-passive tort-feasors by the use of the language “one (1) of two (2) or more persons liable in tort for the same injury.” T.C.A. § 23-3105. (Emphasis supplied).

The argument is persuasive; however, our research convinces us that it was not the intent of the Commissioners on Uniform State Laws nor of our Legislature to embrace the derivative or vicarious liability of masters or principals within the scope of 'T.C.A. § 23-3105.

The common law denied contribution among tort-feasors based upon the theory that wrongdoers did not deserve the assistance of the courts in achieving equal or proportionate distribution of a common burden. Tennessee was one of only six (6) states to recognize by judicial rule some form of contribution among tort-feasors prior to any legislative enactment.

In 1939, the Commissioners on Uniform State Laws promulgated the first uniform act providing for contribution among tort-feasors. The 1939 act has been adopted in eight (8) jurisdictions. Apart from any version of the Uniform Act, eight (8) states have statutes which are limited in their effect to contribution between joint judgment defendants. Six (6) other states have rather brief statutes declaring the right to contribution, that leave many questions for interpretation by the courts. In short, it is a field of the law totally lacking in uniformity.

In 1955, the Commissioners on Uniform State Laws promulgated a revision of the 1939 Act, with a view to reconciling serious variations that existed. Uniform Laws Annotated, Civil Procedural and Remedial Laws, Master Edition, Volume 12, pp. 59-GO (1975).

Our legislature adopted the Üniform Contributions Among Tort Feasors Act of 1955 by Chapter 575, Public Acts 1968.

Section 6 of the 1939 Uniform Act provides as follows:

“§ 6. Indemnity. — This Act does not impair any right of indemnity under existing law.” Uniform Laws Annotated at 58.

The 1955 Act added a sentence to the indemnity section and it appears in T.C.A. § 23-3102 as subsection (f) which reads as follows:

“(f) This chapter does not impair any right of indemnity under existing law. Where one tort-feasor is entitled to indemnity from another, the right of the indemnity obligee is 'for indemnity and not contribution, and the indemnity obli-gor is not entitled to contribution from the obligee for any portion of his indemnity obligation.”

The Commissioners comment observes that the single sentence of the 1939 Act apparently left it uncertain whether there could be contribution in any indemnity situation and continues as follows:

“ . . . It seems clear that there should be no contribution. Where a master is vicariously liable for the tort of his servant, the servant has no possible claim to contribution from the master; and the master does not need contribution from the servant and will not seek it, since he is entitled to full indemnity. The master, of course, may recover contribution from any third tortfeasor against whom he has no right of indemnity.” Uniform Laws Annotated at 66.

Our case law has long recognized the right of the master or principal to obtain indemnity from the servant or agent in a derivative liability situation. See e. g., D. B. Loveman Co. v. Bayless, 128 Tenn. 307, 160 S.W. 841 (1913).

Where the right of full indemnity exists between persons liable in tort, no right of contribution exists.

Where no right of contribution exists, the act does not purport to intrude. Thus, the section providing that a covenant not to sue discharges the covenantee from contribution and does not discharge any other tort feasor, has no application to the master-servant, principal-agent relationship, where liability is solely derivative.

Plaintiff relies upon four (4) cases from other jurisdictions that have held that a release of the agent or servant does not discharge his principal or master even where recovery is based solely upon vicarious liability.

Hertz Corporation v. Hellens, 140 So.2d 73 (Fla.App.1962) and Ritter v. Technicolor Corp., 27 Cal.App.3d 152, 103 Cal.Rptr. 686 (1972) involve interpretations of statutes of Florida and California that differ from the 1939 and 1955 Uniform Contribution Among Tort Feasors Acts. Also in the Florida case the further distinction exists in that liability is predicated upon the doctrine that an automobile is a dangerous instrumentality. In California, prior to the adoption of that state’s unique contribution among tort feasors statutes, case law had held that the release of a servant did not discharge the master.

Holve v. Draper, 95 Idaho 193, 505 P.2d 1265 (1973), and Smith v. Raparot, 101 R.I. 565, 225 A.2d 666 (1967), involve interpretations of the 1939 Uniform Contribution Among Tort Feasors Act. We have heretofore pointed out that the 1955 Act makes it clear that where the right of indemnity exists the act has no application. Neither the Idaho nor the Rhode Island Court gave any consideration to the effect of the indemnity subsection of the 1939 Act.

IV.

The result is that defendant’s motion for summary judgment is sustained only to the extent of discharging Lawson from any derivative liability predicated on a master-servant or principal-agent relationship with Lee.

The trial court’s decree disallowing plaintiff’s amendment and dismissing his suit is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion. Costs are adjudged against defendant Lawson.

COOPER, HENRY and HARBISON, JJ., and HYDER, Special Justice, concur.

BROCK, J., not participating.

OPINION ON PETITION TO REHEAR

Upon consideration of the petition to rehear filed on behalf of Craven, the Court is of the opinion that we did not overlook any points or authority in reaching our decision heretofore announced; and the petition is therefore denied.

COOPER, HENRY and HARBISON, JJ., and HYDER, Special Justice, concur.


author: COOPER, Justice.

text:
    James Brown BRADEN et al., Petitioners, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    March 1, 1976.

      Karl P. Warden, Franklin, Clark H. Tid-well, Nashville, Emery B. Gill, Centerville, for petitioners.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, for respondent.
   OPINION

COOPER, Justice.

James Brown Braden, Paul William Swindell, and Douglas Graham Moulton were convicted in the Criminal Court of Hickman County of possession of marijuana, with the intent to resell the same in violation of the Drug Control Act of 1971. Each of the defendants was sentenced to serve not more than, nor less than, one year in the penitentiary. The convictions were affirmed by the Court of Criminal Appeals, with each member of the three judge panel writing a separate opinion. This court granted certiorari to review the holding of the Court of Criminal Appeals that it was not error for the District Attorney General, in his closing argument, to comment on the failure of the defendants to make a statement to the arresting officers in explanation of defendants’ presence at a marijuana cache.

In late August, 1972, agents of the Federal Alcohol, Tobacco, and Firearms Division, searching for an illegal distillery in Hickman County, found a cache of approximately 115 pounds of marijuana hidden in a brush arbor in a ravine near the Primm Springs Road. Subsequently, they found the distillery nearby.

The marijuana find was reported to agents of the Tennessee Bureau of Investigation. Thereafter, agents of both govern-meats took up surveillance of the area, the TBI agents being primarily interested in the marijuana and the federal agents being primarily interested in the illegal distillery. On September 2, 1972, the agents observed the defendants drive into the area in a jeep and park it in a field at the end of the road not far from the location of the marijuana cache. The defendants then walked down a path that ended near the arbor. Later they were observed pulling brush from the arbor. On defendants leaving the arbor, they were arrested, searched, handcuffed, photographed, and advised of their constitutional rights. The search revealed that Braden and Swindell each had a small amount of marijuana on his person.

On trial the District Attorney General inquired of the TBI agent, Whitlatch, whether any of the defendants made a statement to the arresting officers and agent Whitlatch replied that they had not. Defense counsel then inquired of Mr. Whit-latch whether the defendants made a statement about ownership of the property on which the marijuana was found, which was answered in the negative.

The defendants testified in their own defense, each giving exculpatory testimony to the effect that they were exploring the countryside looking for moonshine still when they came upon the brush arbor by accident, and out of sheer curiosity they had removed a small amount of the marijuana. On cross-examination of the defendant Moulton, the District Attorney General, without objection by defense counsel, inquired whether the defendants had given any explanation to the arresting officers for their appearance at the brush arbor. Defendant Moulton replied that no such statement was made.

The District Attorney General then made the following argument to the jury,

“ . . . The men were taken back to the jail and were questioned by both Mr. Whitlatch and the Sheriff and others, and at this point something very significant happened they don’t want to make an explanation, they don’t want to tell the officers that they were just sightseeing, just driving around, just the innocent victims of a set of bizarre circumstances as they present to you today that they don’t want to say anything.”

Objection by defense counsel to the argument was overruled without comment by the trial judge. The District Attorney General continued with his argument, telling the jury:

“In this crucial time when the Officers would have the opportunity to have verified and checked out this situation they don’t tell them that they were out there just riding around and they make no explanation whatsoever. And of course significantly two of them have samples of the marijuana which they admit was taken from this brush arbor where this sizable quantity was hanging and we submit these samples were taken to determine whether or not this material had reached the proper maturity that they intended for it to before taking it for the purpose of selling it. Now in answer to this, none of which is really denied and none of it could be denied because all this was seen by a large number of responsible people. In answer to this they give you their explanation that they were out sightseeing and they just happened to stop at this particular point and just happened to go over to this hidden brush arbor which couldn’t be seen, everyone admits that it couldn’t be seen from the road where they were . . . ”

Defendants contend the argument of the District Attorney General “was a comment on the failure of the defendants to make statements to the arresting officer, after the defendants had been advised of their constitutional right to remain silent and (a suggestion) that such a failure was evidence of guilt on the part of the defendants.” Defendants insist, and we think properly, that such argument was improper in that it penalized the defendants for exercising their constitutional right to be silent.

That a defendant has a constitutional right to remain silent in the face of accusations against him, not only during his trial but also upon arrest and while in custody, is a rule so fundamental as to require little elaboration. Constitution of the United States, Amendment 5. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966). As a corollary of this principle,

“ . . . it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that [the individual] stood mute or claimed his privilege in the face of accusation.” Miranda v. Arizona, supra, 384 U.S. at 468 N. 37, 86 S.Ct. at 1625.

The difficulty in this case is that the defendants did not maintain silence. Instead, they testified in their own defense. When they did so they subjected themselves to the impeaching effect of proof of any prior inconsistent statements they might have made, which would otherwise be inadmissible as being obtained in violation of defendants' Miranda rights, and to the impeaching effect of any prior inconsistent actions on their part. See Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). See also Kelley v. State, 478 S.W.2d 73 (Tenn.Ct.Cr.App.) wherein the prosecution was permitted to show defendant’s silence while in custody of police officers where the defendant undertook to testify that “he was bent upon reporting the facts of this burglary as soon as he could get in touch with certain other officers.” In these cases the courts sought to and did strike a balance between protecting the self-incrimination bar of the Fifth Amendment and allowing full testing of the truth of defendant’s trial testimony. We agree with this objective, but hasten to emphasize that evidence of pre-trial silence of the defendant must be admitted with caution and then only where such silence is patently inconsistent with defendant’s testimony. For example, Kelley v. State, supra. If the standard to be met by the prosecution in introducing evidence of pretrial silence of a defendant, and in arguing to the jury a position based on defendant’s pretrial silence, was any less strict, a defendant would be on the horns of a dilemma when arrested and advised of his Miranda rights. He would have to assert his innocence immediately or not at all, except at the peril of having the prosecution using his initial silence against him. This would have a chilling effect on a defendant’s assertion of his constitutional right to remain silent and, consequently, can not be permitted.

In this case, as heretofore noted, the defendants did not object to the admission in evidence of testimony showing that defendants were advised of their right to remain silent. And, in the absence of the argument to the jury by the District Attorney General based on the pretrial silence of the defendants, no prejudice would have resulted to the defendants from the showing of their pretrial silence. State v. Flanagan, 223 Tenn. 134, 443 S.W.2d 25 (1969). The question then is: Was it error for the District Attorney General to comment on the pretrial silence of the defendants in his argument to the jury?

The Court of Criminal Appeals viewed the argument of the District Attorney General “not [as] an attempt ... to convict the defendants by their silence, but to reflect on the credibility of their testimony by pointing out the inconsistency between their testimony at the trial and their actions when caught at the marijuana cache,” and found no prejudicial error in the argument of the District Attorney General, citing State v. Flanagan.

We see no basic inconsistency between defendants’ exculpatory testimony and their remaining mute during the time they were under arrest and undergoing custodial interrogation. Defendants were arrested, searched and their hands were handcuffed behind them. They then were given the Miranda warnings, and thus were made aware of their right to remain silent and the fact that anything they said would be used against them. Under these circumstances, defendants’ failure to offer an explanation of their presence at the brush arbor to the police officers could as easily be taken to indicate reliance on their right to remain silent as to support an inference that the explanatory testimony given on trial was a later fabrication. Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); Minor v. Black, Superintendent, 527 F.2d 1 (6 Cir. 1975); United States v. Anderson, 162 U.S.App.D.C. 305, 498 F.2d 1038 (1974) cert. granted sub nom., United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Johnson v. Patterson, 475 F.2d 1066 (10th Cir.), cert. denied, 414 U.S. 878, 94 S.Ct. 64, 38 L.Ed.2d 124 (1973). See also O’Brien v. State, 221 Tenn. 346, 426 S.W.2d 507 (1968). The pretrial silence of the defendants not being patently inconsistent with their testimony at the trial, it was error for the District Attorney General to show defendants’ pretrial silence and then to comment, in argument, on the failure of the defendants “to tell their story” prior to trial.

The state takes the position that the use made of defendants’ pretrial silence was “harmless error.” We do not see it that way. To find harmlessness beyond a reasonable doubt we would have to conclude that, absent the evidence of pretrial silence and the closing argument, “no juror could have entertained a reasonable doubt” as to defendants’ guilt. United States v. Matos, 444 F.2d 1071 (7th Cir. 1971). In this case, the credibility of the defendants was the controlling issue. A prime factor in the prosecution’s attack on this credibility was the defendants’ pretrial silence. As pointed out in United States v. Hale, 95 S.Ct. 2133, 2138 (1975):

“The danger is that the jury is likely to assign much more weight to the defendant’s previous silence than is warranted. And permitting the defendant to explain the reasons for his silence is unlikely to overcome the strong negative inference that the jury is likely to draw from the fact that the defendant remained silent at the time of his arrest.”

From our review of the evidence we feel that we cannot say with equanimity that no juror would have accepted defendants’ testimony absent the evidence of pretrial silence and the comments of the District Attorney General on defendants’ silence.

The judgment of the Court of Criminal Appeals is reversed and the case is remanded to the Criminal Court of Hickman County for a new trial.

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


author: WILLIAM I. DAVIS, Jr., Special Justice.

text:
    James A. FRANKLIN and Betty R. Franklin, Appellants, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellee.
    Court of Appeals of Tennessee, Eastern Section.
    March 26, 1975.
    Certiorari Denied by Supreme Court Sept. 2, 1975.

      David T. Bl,ack, Maryville, for appellants.
    William P. O’Neal, Knoxville, M. H. Gamble, Jr., Maryville, for appellee.
   WILLIAM I. DAVIS, Jr., Special Justice.

The parties will be referred to as they appeared in the trial Court, the appellants as plaintiffs and appellee as defendant.

On May 15,1970, defendant issued a policy of insurance, No. 666NC4090, to Delmar Haynes Pontiac, Inc. including garage liability coverage. Expiration date was May 15, 1973. May 30, 1972, one McCulloch, a garage customer of Delmar Haynes Pontiac, Inc., was loaned a Delmar Haynes automobile while his own was being repaired. His operation of it was within the scope of permission granted by Delmar Haynes and on his own business. While thus operating the Delmar Haynes automobile, McCulloch, on May 31, 1972, was involved in an accident resulting in death of plaintiffs’ son. January 31,1978, plaintiffs obtained a judgment against McCulloch in the amount of Fifty Thousand ($50,000.00) Dollars as damages for their son’s death. Thereafter defendant paid Ten Thousand ($10,000.00) Dollars on the judgment. At the time of the accident McCulloch had no valid or collectible insurance on his own automobile.

The policy of insurance in question provided under the definition of “Persons Insured” that;

“(a) Any person while using, with the permission of the named insured, any automobile to which this insuring agreement applies under the Automobile Hazard, provided his actual operation or (if he is not operating) his other actual use thereof is with the scope of such permission . . . ”
Another pertinent provision of the policy, known in the record as Rider No. 3 of Page 23, endorsement A5207, states “3. If there is no other valid and collectible insurance, whether primary, excess or contingent, available to the garage customer, this insuring agreement shall apply, but the amount of damages payable under the insuring agreement shall not exceed the applicable financial responsibility limit.”
Under the General Conditions of the policy is also found the provision; “29. Special Statutes — Any and all terms of this policy which are in conflict with the statutes of any State in which coverage is granted are understood, declared and acknowledged by the company to be amended to conform with such statutes.”
Section 56r603 T.C.A. After providing that rules, rates, etc. be filed with the Commissioner by the insurer states in sub.-sec. (h) “No insuror shall make or issue a contract or policy except in accordance with the filings which have been approved for said insuror as provided in this chapter.”

Plaintiffs filed an action against defendant asserting it was liable to them for the balance of the judgment they had against McCulloch because the policy in question insured McCulloch for a minimum of One Hundred Thousand ($100,000.00) Dollars, that the “Rider”, endorsement, A5207, cannot be considered as a part of the policy because defendant had not complied with Section 56-603 Sub-Section H, T.C.A. which provided (H) “No insurer shall make or issue a contract or policy except in accordance with the filings which have been approved for said insurer as provided in this chapter;” that A5207 is unclear and ambiguous; that A5207 should not be considered in determining defendants liability because its provisions are discriminatory, in violation of public policy and conflict with requirements of Section 56-603 T.C.A. and the terms of the policy; and that defendants are estopped to deny that the policy issued is contrary to the filing made with the Commissioner of Insurance and Banking.

Defendants answered in detail effectively putting at issue the material allegations of plaintiffs as above stated and denying it was liable to plaintiffs for any reason.

The Trial Court ruled that the plaintiffs’ action is one on a contract of insurance, sounding in contract, and is not one for excess insurance and could properly be brought by plaintiffs as third-party beneficiaries against defendant; that endorsement A5207 had been effectively withdrawn and was not on file with the Commissioner of Insurance and Banking from and after April 1, 1970, nor on file on May 15, 1970, nor at the time of the accident in question within the meaning of Section 56-603 T.C.A.; that the endorsement A5207 was, however, binding on plaintiffs, was not repugnant to the spirit and intent of the financial responsibility act, meeting the minimum requirements of that act; that plaintiffs were limited in their right of recovery to the minimum coverage, required by our Financial Responsibility Act and found the issues joined in favor of defendant. Plaintiffs prayed for and were granted an appeal which was duly perfected and the case is here for review.

The Chancellor’s ruling that plaintiffs have the status of third-party-beneficiaries suing on contract, and may maintain this action, is not appealed from and not here questioned. The Chancellor’s finding that the endorsement A5207 had been effectively withdrawn and was not on file with the Commissioner of Insurance and Banking from and after April 1, 1970, nor on file or standing approved by the Commissioner May 15, 1970, nor on file with the Commissioner at the time of the accident in question, all within the meaning of Section 56— 603 T.C.A. is likewise not appealed from. Independent of this finding and any binding effect it may have on this Court we find that there is ample evidence to sustain the Chancellor’s ruling on these issues and agree with him thereon.

ASSIGNMENT OF ERRORS

1. The Honorable Chancellor erred in not finding the endorsement void as a matter of law because the endorsement was not on file with nor approved by the Commissioner of Insurance and Banking at the time of the issuance of the policy and at the time of the accident in question within the meaning and intent of Tennessee Code Annotated, Section 56-603.
2. The Honorable Chancellor erred in not finding the endorsement invalid as a matter of fact because said endorsement was issued in violation of Tennessee Code Annotated, Section 56-603, a special statute of the State of Tennessee and because the policy itself by contract excludes consideration of the endorsement wherein a special statute has been violated.
3. If not pretermitted by the foregoing assignments of error, the Honorable Chancellor erred in not finding as a matter of law that the terms of the endorsement should be excluded from consideration of the policy as a whole because the terms thereof are discriminatory and are in violation of Tennessee Code Annotated, Section 56 — 1226.
4. The Honorable Trial Court erred in not determining as a matter of fact that the Defendants were estopped to rely upon the endorsement in question (A5207) and waived the provisions contained in the endorsement.
5. The Honorable Chancellor erred in not finding that the terms of the endorsement are ambiguous and therefore unenforceable.
Assignments one and two may be properly considered together.

Under the provisions of the policy McCul-loch was insured for One Hundred Thousand ($100,000.00) Dollars unless endorsement A5207 effectively reduced the coverage to the amount provided by the applicable financial responsibility limit of Ten Thousand ($10,000.00) Dollars.

That such a provision limiting amount of coverage designated as No. 3 in the endorsement A5207 is a proper and legitimate one between the parties to the contract was settled in United Services Automobile Association v. The Hartford Accident and Indemnity Company, 222 Tenn. 168, 433 S.W.2d 850.

Following a provision that no action shall lie against the Company unless there shall have been a full compliance with its terms the policy provides;

“Any person or organization or legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under the policy to the extent of the insurance afforded by this policy.”

The plaintiffs are restricted to the terms of the policy and the “insurance afforded by this policy.” Their rights could be no greater than those of the insured, Delmar Haynes Pontiac, Inc., a contracting party to the policy of insurance. Dillingham v. Tri-State Insurance Company, 214 Tenn. 592, 381 S.W.2d 914; Horton v. Employers Liability Insurance Corporation, 179 Tenn. 220,164 S.W.2d 1016; Petty v. Sloan, 197 Tenn. 630, 277 S.W.2d 355; Goodner v. Accidental Fire and Casualty Company, 59 Tenn.App. 317, 440 S.W.2d 614.

The paramount question then arising is whether endorsement A5207 was vitiated or made inapplicable because not a part of proper filings with the Commissioner of Insurance and Banking nor approved by him.

Sub-section (h) Section 56-603 T.C.A. heretofore quoted and relied upon by plaintiffs is a part of Chapter 6, Insurance, said chapter being entitled “Rates and Rating Organizations—Casualty and Fidelity Insurance”.

The United States Circuit Court of Appeals, Sixth Circuit, in McCullough Transfer Co. v. Virginia Surety Co., 213 F.2d 442, had before it a similar statute of Ohio and considered substantially the same question here made by plaintiffs. Speaking through Judge Miller that Court said;

“But we do not agree with appellant’s-contention that it necessarily follows that a failure to comply with the provisions of a regulatory statute relating to insurance renders null and void a policy of insurance freely entered into by the parties. In order to determine whether a contract made contrary to a penal statute is illegal and void, the statute must be considered as a whole to ascertain whether it was the intention of the Legislature that the statute have such effect. There is no express provision in the foregoing sections of the Ohio General Code which states that a failure to comply with any of the provisions contained therein renders an insurance contract void. If such was the intent of the Legislature it could easily have said so in express words. . It was the purpose of the Legislature to regulate the insurance business . rather than by declaring illegal and void such contracts of insurance as might be issued while the insurer was not in compliance with the provisions of the statute. . . . Nor do we consider the contract as void against the public policy. A contract is not void as against public policy unless it is injurious to the public or contravenes some established interest of society. . . . The insurance contract involved in this case, under which appellant has had the benefit of full performance by the appellee, is clearly not of that nature.”

There does not appear to be any intent expressed in our statute in question to declare insurance policies void because of failure to have on file endorsement A5207 or similar matters involving rates, etc. nor do we think such an intent can properly be implied. We do not believe Sub-section (h) of Section 56-603 T.C.A. under the circumstances and facts of this case adversely affects the validity of item 3 of endorsement A5207. The endorsement A5207, we think, is enforceable and was binding on the parties to the contract of which it was a part. Consequently, under the authorities heretofore cited the plaintiffs were and are likewise bound by that provision limiting coverage. We think the Chancellor was correct in holding that the ruling and rationale of McCullough Transfer Co. v. Virginia Surety Company., supra, dictates a similar ruling here. See also 44 C.J.S. Insurance § 254, p. 1029.

The provision of the policy designated “29. Special Statute”, heretofore quoted, does not invalidate or destroy the effectiveness of endorsement A5207, which is binding on the parties to the contract of insurance, a contract freely entered into for a legal consideration. The authorities cited and reasons given in holding endorsement A5207 binding on the plaintiffs in connection with Sub-sec. (h) Section 56-603 T.G.A. are equally valid as to the provision “29. Special Statute.” To hold otherwise would have the effect of deleting or expunging A5207 thereby reforming a contract to which the plaintiffs were not a contracting party and about the provisions of which no mistake between the parties existed. Assignments of error one and two are overruled.

In their third assignment of error plaintiffs assert endorsement A5207 should be excluded from the policy because the endorsement violates Section 56—1226 T.C.A. The Code Section is as follows;

“Preferences or distinctions in certain insurance transactions prohibited—Exceptions
(a) No insurer or any person on behalf of any insurer shall make, offer to make, or permit any preference or distinction in property, marine, casualty, or surety insurance as to form or policy, certificate, premium, rate, benefits, or conditions of insurance, based upon membership, non-membership, employment, or of any person or persons by or in any particular group, association, corporation, or organization, and shall not make the foregoing preference or distinction available in any event based upon any fictitious grouping of persons as defined in this code, such fictitious grouping being hereby defined and declared to be any grouping by way of membership, nonmembership, license, franchise, employment, contract, agreement or any other method or means.”

The provision just quoted appears as part of Chapter 12, it being entitled Unfair Competition and Unlawful Practices under Title 56, Insurance. A reading of the entire chapter leads one to the conclusion that it was primarily the legislative intent to regulate each insurance company in respect to its conduct as that conduct would affect a similar company; not to tamper with the contractual relationship of insurer and insured. It is said that one should look to the language of the statute, its subject matter, object and reach of the statute, wrong or evil sought to be remedied or prevented, purpose sought to be effected in determining the effect of a statute. Mascari v. Raines, 220 Tenn. 234, 415 S.W.2d 874. We believe when all relevant matters are considered the code section in question should not be given the effect of invalidating endorsement A5207, nor should it be ruled discriminatory or destructive of the questioned parts of the policy of insurance. Had the Legislature intended to invalidate contracts of insurance as between the parties thereto under such circumstances it could have so enacted. Assignment of error No. three is overruled.

In connection with the fourth assignment of error it appears that the contracting parties did not mistakenly enter into their contract. The contract reflected what they agreed upon. The plaintiffs are not shown to have relied upon the questioned provisions as being void nor upon any act of the defendant prior to the accrual of their cause of action. What plaintiffs actually seek to do is to reform the policy of insurance by deleting endorsement A5207 from the policy. This they cannot do for the reason there was no mistake and no antecedent agreement with respect to which a mistake was made. Estoppel is available to protect a right but not to create one. E. K. Hardison Seed Company v. Continental Casualty Company, 56 Tenn. App. 644, 410 S.W.2d 729. There appearing to be no estoppel, or waiver of terms of the contract, assignment of error four is overruled.

Assignment of error five assails endorsement A5207 as being ambiguous. Given their plain, ordinary meaning and signification the words and terms of the endorsement are clear and easily understood, not subject to different interpretations. The provision “damages payable under the insuring agreement shall not exceed the applicable financial responsibility limit” should not be said to be ambiguous because reference is made to the financial responsibility limit without stating in dollars what that limit was at the time. Stone v. Liberty Mutual Insurance Company, 55 Tenn. App. 189, 397 S.W.2d 411; In Re Estate of Clement, 220 Tenn. 114, 414 S.W.2d 644.

Assignment of error five is overruled.

All assignments of error are overruled and the judgment of the trial Court affirmed.

PARROTT, P. J. (E. S.), apd SANDERS, J., concur.