author: CRAWFORD, Judge.

text:
    Emmy AUSTIN and William L. Austin, Sr., As Next of Kin of William L. Austin, Jr., Deceased, Plaintiffs-Appellants, v. CITY OF MEMPHIS, Tennessee, County of Shelby, et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Aug. 21, 1984.
    Application for Permission to Appeal Denied Dec. 31, 1984.

      G. Wynn Smith, Patrick M. Ardis and Thomas J. Walsh, Jr., Memphis, for plaintiffs-appellants.
    Robert J. Ames, Sr. Asst. Atty. Gen., William M. Leech, Jr., Atty. Gen., Nashville, for State of Tenn.
    Thomas F. Johnston, Carl H. Langsch-midt, William M. Walsh, Robert D. Flynn and Joe D. Spicer, Carroll C. Johnson, Eugene C. Gaerig, James R. Garts, Jr., Memphis, for defendants-appellees.
   CRAWFORD, Judge.

This is an appeal by plaintiffs from the judgment of the trial court on a jury verdict for the defendants. Plaintiffs, Emmy Austin and William L. Austin, Sr., parents and next of kin of William L. Austin, Jr., deceased, sued the defendants for the wrongful death of their son resulting from the collapse of the Perkins Road Bridge in Memphis, Tennessee, on March 16, 1980. The State of Tennessee and Chickasaw Basin Authority as a corporate body were originally named as defendants, but were dismissed on defendants’ motion prior to trial. Also sued were the City of Memphis and County of Shelby, but the suit against these parties was severed for a separate trial by the court and is not involved in this appeal. See 640 S.W.2d 852.

On the night of March 16, 1980, during a period of heavy rains, plaintiffs’ decedent was driving his automobile in a northerly direction on Perkins Street in Memphis, Tennessee. He was in the process of traversing the four-lane concrete Perkins Street Bridge over Nonconnah Creek when a part of the bridge on the eastern-most, or upstream side, collapsed. His vehicle fell into the Nonconnah Creek and his death resulted. The seminal issue in the case centered on the question of causation of the bridge collapse. The trial was described by plaintiffs in their brief as a “classic battle of experts” on this issue.

The private citizen defendants involved in this appeal were in various ways connected with “borrow operations” (removal of dirt) from in and around the Nonconnah Creek bed downstream from the bridge. These operations began approximately in 1973, and at various times continued until shortly before the bridge collapsed. The allegations against these defendants in the “conformed restated complaint” are in part:

* * * * * *
31. Beginning in 1973 borrow operations were undertaken downstream from the Bridge by and for the benefit of Perkins and Mall.
32. Said borrow operations were performed with the approval of the state, the Chickasaw Basin Authority, the county and the City.
33. The borrow operations were performed under contract with Dancy, Construction Aggregates and Lehman-Roberts, individually or as a joint venture and Folk, Meccon and Chancellor, individually and as joint venture.
34. Pollard Consultants and Pollard individually acted as consultants for Perkins and Mall and assured State, County, and City (as well as Perkins and Mall) that the aforesaid dredging operations would not endanger the Bridge and that there was no necessity to stabilize the Nonconnah Creek bed with such devices as gabions, paved flumes or concrete slurry cut-off walls, etc.
35. The aforesaid borrow operations ultimately removed in excess of 1,000,000 cubic yards of fill from Nonconnah Creek bed in close proximity to, and downstream from, the Bridge. This fill was used for the benefit of Mall and Perkins to build up the elevation of the area adjacent to Nonconnah Creek where they jointly proposed to construct a shopping center.
36. These borrow operations caused a widening and deepening of Nonconnah Creek and resulted in an increased velocity of water flow eroding and causing instability of the creek.
37. The Defendants specifically named in numbered paragraphs 30 through 3⅛ above knew, or in the exercise of reasonable care should have known, that the aforesaid dredging operations and/or grading, drainage channelling, and/or other earth-moving operations on the Mall of Memphis project were endangering the Perkins Bridge; but, nevertheless, they negligently continued or allowed to continue such operations in reckless disregard of the obvious danger to the life and property of persons lawfully using the Bridge, and, with full knowledge of the instability of the creek bed caused by the dredging and/or other earth-moving operations, negligently failed to take proper corrective measures to safeguard the Bridge.
⅜ ⅜ # * # ⅜
52. The collapse of the Bridge directly and proximately was caused by each of the following:
A) The erosion of the creek bed underneath the Bridge due to the downstream borrow operations; and
B) The combined action of the erosion of the creek bed due to the aforesaid borrow operations and accumulated debris and the increased force exerted on the Bridge due to the congestion of debris.

The conformed restated complaint continues with specific allegations against the individual private defendants:

58. Pollard Consultants and Pollard individually, as hired expert engineering consultants for Mall and Perkins, were negligent in that they advised their said client (and represented and assured the City, County, Chickasaw Basin Authority, and State) that the downstream borrow operations herein alleged could be performed without endangering the Perkins Bridge and without the necessity of stabilizing the Nonconnah Creek bed, when they knew, or, in the exercise of that degree of skill and care normally exercised by other such expert consultants under similar circumstances, should have known, that such advice and assurances were false and in error, thereby causing the alleged dredging operations to be undertaken and continued without proper stabilization of the Nonconnah Creek bed sufficient to avoid structural damage to the Perkins Bridge.
59. Mall, Perkins, Hahn, Stanley H. Tre-zevant, Jr., and James C. Bridger, as well as Folk, Meccon, Chancellor, Dancy, Aggregates, and Lehman-Roberts, were guilty of negligence in that:
A) They performed the downstream borrow operations alleged herein without exercising reasonable care to ascertain that Nonconnah Creek bed was stabilized in a manner which would have prevented the type of bed erosion and scouring which caused the Bridge failures alleged herein; and
B) After learning that the erosion of Nonconnah Creek bed under the Perkins Bridge was caused or contributed to by the downstream borrow operations and had actually weakened the Bridge’s foundations to the point of causing actual structural failures, they continued the downstream borrow operations without any reasonable attempt to stabilize the creek bed to prevent further erosion. 60. Pollard Consultants, William S. Pollard, Jr., Individually, Mall, Perkins, Hahn, Stanley H. Trezevant, Jr., and James C. Bridger, as well as Folk, Mec-con, Chancellor, Dancy, Aggregates, and Lehman-Roberts were guilty of gross negligence, amounting to willful, wanton misconduct which directly and proximately caused the property damage, pain and suffering and wrongful death of William L. Austin, Jr., complained of herein in that:
A) They knew or should have known the borrow operations was [sic] endangering the Perkins Bridge but continued the removal of materials; and
B) They, knowing of the erosive changes caused by the borrow operations, did not take preventative and/or corrective measures to safeguard the Bridge, thereby knowingly endangering the public and causing the death of William L. Austin, Jr.; and
C) They, knowing of the dangers caused by the borrow operations continued to advise the State, County, and City that the dredging did not endanger the Bridge.
* * * * * *

These defendants, in response to the allegations against them, generally denied negligence on their part, denied that the borrow operations on the downstream side of the bridge caused the collapse of the bridge, and averred that the cause of the collapse was an act of God solely or an act of God in conjunction with an unusual amount of debris allowed by other parties to accumulate against the pilings on the upstream side of the bridge. After many months of pretrial discovery, the case was tried before a jury for approximately six weeks resulting in the verdict for the defendants and this appeal.

Plaintiffs have presented for review eleven issues, which we will now consider.

1. The trial court erred in excluding redirect testimony of plaintiff’s expert witnesses on points not covered in plaintiffs’ answers to interrogatories, where such testimony was offered solely in direct response to specific questions put to the witness on defendants’ cross-examination.

Plaintiffs are quite explicit in their brief as to the alleged error: “Specifically, the plaintiffs were not allowed to conduct redirect examination of their experts with respect to subjects which the defendants covered on cross-examination.”

Notwithstanding the specificity used by plaintiffs to point out the error as being confined to the court’s action concerning redirect examination, we note that the court’s action excluding the testimony of the expert witness Guy is not reflected in redirect examination, but during the direct examination by plaintiffs’ counsel of their expert witness Guy. The exclusion of the testimony was pursuant to defendants’ objection that the information sought was not contained within Guy’s answers to interrogatories propounded by defendants.

The parties failed to assist the court in locating in the record the alleged cross-examination which plaintiffs contend opens the door for redirect examination by them. Such assistance would have helped the court eliminate unnecessary review of part of this voluminous record.

Where excluded testimony is not preserved in the record, the appellate court cannot consider an issue relating to the exclusion of same. See Canning v. Canning, 59 Tenn.App. 678, 443 S.W.2d 502 (1968); Yellow Bus Line v. Brenner, 31 Tenn.App. 209, 213 S.W.2d 626 (1948).

One of the legitimate purposes of redirect examination is to clear up confusion of the witness, and redirect examination rests largely in the discretion of the trial judge. Yellow Bus Line v. Brenner, supra.

The initial brief filed by plaintiff was not clear concerning an offer of proof of the evidence excluded and at oral argument this Court requested plaintiffs to file a supplemental brief setting forth the offers of proof which form the premise for the alleged error of the trial court. We have now received the supplemental brief and will consider only the specific areas wherein offers of proof are delineated by plaintiffs pursuant to our request for an additional brief.

Initially plaintiffs complain about testimony which they sought from their expert witness Guy. In the original brief filed by plaintiffs, plaintiffs state absolutely that the alleged error of the court occurred in plaintiffs’ redirect examination of this witness. The brief quotes from the record:

Q. [Mr. Smith]:
To what extent would measurements taken three days after the collapse of the bridge have any value at all in indicating the condition of the stream bed at the time of the collapse or prior to the collapse?
* * * * * *
MR. GAERIG: If Your Honor please, this is outside the interrogatory, and I object.
THE COURT: Now, if that’s the basis of your objection, I’ll sustain it.

Although plaintiffs contend that an offer of proof of the excluded testimony was made, we can find none in the record. What the plaintiffs have submitted to this court as an offer of proof is an offer of proof concerning a question asked by plaintiffs’ counsel on direct examination of this witness which is as follows:

Q. [Mr. Smith]
All right, sir, that’s fine.
Would you tell us, please, what effect, in your opinion, did the collapse of the roadway have into the stream in the position you have described, have on the character of the stream underneath the bridge?

An offer of proof was made when the court sustained an objection to the question, but we cannot consider this offer of proof in response to this different question made on direct examination when no issue has been presented concerning same.

The next alleged error of the court in exclusion of testimony at this stage of the trial concerns witness Kellogg when the plaintiffs complain that the court sustained the objection of defendants to the following question propounded by plaintiffs’ counsel on redirect examination of this witness:

Could you tell me, please, whether or not any measurements taken on March 19, 1980, accurately reflect the status of the creek bed prior to the collapse of this bridge?

We find no offer of proof in the record, and plaintiffs have failed to point out any offer of proof to supply this testimony, and, therefore, we cannot consider it. See Canning v. Canning, supra.

Plaintiffs, in their original brief, complain about the court sustaining objections to redirect questions of the witness Dunlap. Plaintiffs’ counsel do not state in their brief the question to which the objection was made, but in the supplemental post-argument brief set out the offer of proof made when the objection was sustained. The offer of proof is as follows:

MR. ARDIS: I want to make an offer of proof, and I can make it right here.
THE COURT: You want to excuse the jury?
MR. ARDIS: I can make it right here.
THE COURT: Go ahead.
MR. ARDIS: Judge, this witness is prepared to testify about these 1979 cross-sections as follows:
That those are not accurate reflections of the true profile of Nonconnah Creek taken downstream from the Perkins Road bridge because they are not taken in accordance with any regular grid or engineering principles.
Further, he will testify that there was no way to know the elevation, that is, the depth of the holes, between the different points as shown on that cross-section, which are at irregular intervals;
Third, he will testify that those elevations of 284 and 235 and 36 are now shown on there; and the elevations of January 4, 1980, would not be the true elevations, before the two huge rains, November 21 and 22, and I remember December 13;
That, in fact, it is a large shifting around of the soil, degradation at the Perkins Road bridge, and filling of the excavation hole downstream, and he will further testify that those cross-sections started in the vicinity of 320 feet from the bridge, and his observations of the aerial photographs demonstrated in this case, with a 400-foot line as marked by Mr. Pollard, shows that that equipment was working within 200 feet at a depth that is undetermined at this point in time because it’s not reflected on the cross-sections in either which way or form;
Further, he will testify that the degrading of the stream bed in the vicinity of Perkins and the effect on the piles between October 1 and the November 7 and November 6 date, when they were discovered, was enhanced and directly attributed to by that excavation within 400 feet from the bridge, as well as the downstream excavation.
He will also testify that there were holes shown in that cross-section that range in the vicinity of 25 to 35 and I think to 40 feet deep, in that stream bed;
That the engineer or the contractor cut outside the plans, that the engineer cut open sanitary sewer lines where he was told not to cut, and in general raised havoc up and down the stream;
He will further testify that there were holes cut in the south bank to undetermined length or depth because of the refilling process; because of the unknown depth during the operation and the measurement was not made to January 4, which is after the point in time. In general, your Honor, his testimony would be that these cross-sections can’t be relied upon, and they don’t demonstrate in any which way or form the elevation of the downstream excavation in relation to the Perkins Road bridge at any time during the time the work was going on;
And that there are large holes all over that stream, and last but not least, he will testify that these cross-sections do not demonstrate at all the work that Mr. Chancellor has testified about that was done on the property of Van Court, which is to the west of the — that there are no cross-sections for that work, and that there are no plans for any of this work with the exception of these cross-sections, and they only show the highest level of elevation downstream from the bridge, and not the levels of elevation between these high points and the profession of the sandbar downstream.
Generally speaking, without all the detail, that’s my offer of proof from this particular witness.
THE COURT: All right, sir.
The question for which this offer of proof was made is:
Q. All right, sir. Let me hand you these cross-sections, which are marked as Exhibit # 124, and ask you if you will examine those cross-sections, and if you would tell us what the original design depth for mechanical removal is as shown on these cross-sections?

It is obvious from just a reading of the offer of proof that it is not responsive to the question asked, and, in fact, there appears to be no offer of proof of testimony responsive to the question. We are unable to consider any alleged error in the exclusion of testimony responses to the questions objected to.

We have reviewed the testimony of the involved witnesses, and, although the court might have been somewhat restrictive in sustaining objections to redirect examination, it does appear that the evidence sought to be introduced by plaintiffs was actually introduced through the testimony of these very same witnesses at different times during the trial. We cannot say that the trial judge in these instances abused his discretion, and, from what we can ascertain from the record concerning the actual proof excluded, the exclusion thereof is at most harmless error. See T.R.A.P. 36(b). Accordingly, we find plaintiffs’ assertions as to Issue No. 1 without merit.

2. The trial court erred in admitting the testimony of defendants’ experts which went beyond the scope of their interrogatory answers, and in allowing defendants to circumvent a specific order of the Court prohibiting such questions by the “sharing” of an expert among several defendants having an identify [sic] of interests.

Plaintiffs assert the trial court committed error in allowing counsel for co-defendants to cross-examine expert witnesses offered by other co-defendants concerning matters which were beyond the scope of the answers to interrogatories propounded by plaintiffs to defendants in violation of a previous order of the court dated January 19, 1983, and which specifically provided in part:

No defendant will be allowed to present, through the expert, any proof that has not been disclosed in the interrogatory responses.

Initially the plaintiffs complained that this situation was a “sharing” type arrangement of a witness in order to circumvent the ruling of the court, and that, in fact, at least one meeting had been held at which all defendants’ counsel participated in a question and answer session with one of the expert witnesses prior to his testimony. The record reflects that the trial court queried defense counsel concerning this allegation of plaintiffs’ counsel and was assured by the defendants’ counsel that in no way was any attempt made by them to willfully circumvent the court’s order, nor to plan, design or agree to participate in any such scheme. The trial court, after hearing such explanations, accepted these explanations as given, and this court does likewise. The trial court insisted that in the absence of any such arrangement, he was not going to limit cross-examination which was otherwise proper. The determination of the propriety of questions on cross-examination is largely in the discretion of the trial court subject to correction for plain error or evident abuse of discretion. Davis v. Wicker, 206 Tenn. 403, 333 S.W.2d 921 (1960); Wagner v. Niven, 46 Tenn.App. 581, 332 S.W.2d 511 (1959).

Plaintiffs cite five places in the record which they contend contain evidence elicited improperly by co-defendants on cross-examination. We have examined the testimony complained of, and in one instance the proof objected to was not placed before the jury, but was an offer of proof by a defendant. In the other instances the proof objected to was either not beyond the scope of the interrogatory answers referred to by plaintiff, or had previously been introduced into evidence without objection. Accordingly, we cannot find that the trial court abused its discretion in allowing co-defendants to cross-examine the expert witnesses of a co-defendant in the manner permitted.

Also, we note that plaintiffs’ counsel were entirely correct in representing this case as, “a classic battle of the experts,” and from our review of the record the opinions of these experts relating to the cause of the bridge’s collapse was elicited from each of them on more than one occasion and in more than one manner. The testimony complained of by plaintiffs in this issue, even if erroneously admitted by the trial court, under the circumstances of this case, is, in our opinion, harmless. See T.R.A.P. 36(b).

Accordingly, plaintiffs’ assertion on Issue No. 2 is without merit.

3. Did the trial court err in allowing a party to testify as an expert witness on causation, where that party had not been identified as an expert witness in defendants’ answers to interrogatories, and where a pretrial Order of the Court expressly prohibited defendants from presenting expert witnesses not so identified?

Plaintiffs contend that since Pollard was not listed as an expert witness in the answers to interrogatories, he should be precluded from testifying as an expert witness concerning causation. Plaintiffs assert that not only should this defendant be precluded from offering such testimony under the general rules of discovery, the court’s order of January 19, 1983, previously discussed, absolutely prohibits such testimony.

Defendants assert that Pollard is not an expert witness within the meaning of Tenn. R.Civ.P. 26.02 as established by Alessio v. Crook, 633 S.W.2d 770 (Tenn.App.1982). In Alessio, the defendant doctor was sued for medical malpractice. The defendant supplemented his answers to interrogatories as required by Tenn.R.Civ.P. 26.05 by listing an additional expert and giving a summary of his testimony. The expert listed was a physician who had performed surgery on plaintiff subsequent to the alleged malpractice. At the trial, plaintiffs insisted that the testimony of this elicited expert exceeded the summary of the testimony reported by the defendant in his supplement to the interrogatory answers. Considering this question, the Middle Section of this court determined that the testifying doctor was not an expert witness within the meaning of the discovery rules, Tennessee Rules of Civil Procedure. The court pointed out that Tenn.R.Civ.P. 26 is, in general, identical to Rule 26 of the Federal Rules of Civil Procedure, and as provided in the Notes of the Advisory Committee on the Federal Rules in referring to the identity of expert witnesses:

It should be noted that the subdivision does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness. (Emphasis supplied).

Id. at 779.

The court then proceeded to hold:
An expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer in regard to the occurrence should be treated as an ordinary witness and not as an expert as contemplated by Rule 26, TRCP (Emphasis supplied).

Id. at 779.

The federal courts have held that a defendant doctor in a malpractice case is not an “expert witness” for purposes of discovery, but rather is subject to the broad range of discovery accorded against any party defendant. See Rodriguez v. Hrinda, 16 F.R.Serv.2d 592 (W.D.Pa.1972); Virginia Electric and Power Co. v. Sun Ship Building & D.D. Co., 68 F.R.D. 397 (E.D.Va.1975).

We can find no convincing reason to limit the testimony of a defendant, whether he be an ordinary lay person or a professional person, to anything less than the materiality, competency and relevancy of his testimony.

The rules concerning discovery were promulgated to allow the parties to ascertain relevant facts pertaining to their case, thus narrowing the issues in order to reach a decision on the merits without “trial by ambush.” Plaintiffs had the opportunity and did avail themselves of the opportunity to take the deposition of Pollard, and we do not feel that plaintiffs are justified in claiming surprise at Pollard’s testimony.

Plaintiffs’ assertions on Issue No. 3 are without merit.

4. Did the trial court err in permitting expert witnesses to give opinions based on an assumption that there was as much as a 50% debris blockage on the bridge piles prior to the collapse of the bridge, when all of the eyewitnesses testified that there was little or no debris accumulation before the collapse?

Plaintiffs contend that the expert opinions elicited concerning causation were in response to a hypothesis that contained evidence that was not in the record or was improperly admitted into the record. The questions objected to by plaintiffs included, as part of the hypothesis, the assumption that the stream flow of the creek at the time of the collapse was blocked approximately 50% by accumulated debris on the pilings of the bridge. This figure was obtained from testimony of the defendant, Pollard, wherein he was allowed by the court over the objection of plaintiffs to give his opinion that the blockage of the stream flow was approximately 50% at the time of the collapse. His opinion was based on photographs taken subsequent to the collapse, his basic knowledge and information about the characteristics of the creek, and his training, education and experience as an engineer. Thus, for us to reach the issue presented, we actually must determine whether the testimony of Pollard relating to the 50% blockage was properly admitted.

The record reflects that various allegations were made by both parties in the pleadings concerning debris and the effect of debris on the bridge structure. Witnesses testified as to their observation of the nature and extent of the debris at various times. Although the collapse of the bridge caused the concrete pavement slabs to fall into the creek on top of the debris directly below the collapse, witnesses testified that shortly after the collapse they observed a great amount of debris accumulated against pilings that were still standing in the creek. Also the record reflects that the creek created a great deal of debris accumulation problems at other bridge locations in its continued course. Although the defendants did not offer any eyewitness proof of the amount of debris present at the time of collapse, adequate evidence concerning varying amounts of debris in the water and adjacent to the bridge prior to its collapse appears in the record. Defendants thereupon attempted “to re-create” or “reconstruct” the situation by virtue of expert testimony. An objection was made by plaintiffs’ counsel to the proposed testimony, and the court undertook to examine the witness in the absence of the jury to ascertain to his satisfaction: that the witness had a proper foundation in the realm of his expertise to give the testimony requested and that the matter was such that it could be proven by a re-creation from the available evidence subsequent to the collapse. This situation does present a rather close question, but the trial judge has broad discretion in dealing with the qualifications of expert witnesses and the admission of their testimony. See Shelby County v. Barden, 527 S.W.2d 124, 130 (Tenn.1975). From our review of the record, we cannot say that the trial court abused its discretion by allowing the witness to testify in the manner indicated, and, thus, the evidence creating the hypothesis objected to by plaintiffs was properly admitted into evidence. Under the circumstances, we find plaintiffs assertions as to this issue without merit.

5. The trial court erred in refusing to allow plaintiffs’ attorneys to question defendant Trezevant concerning the amount he paid to defendant Pollard for engineering services, where such evidence was offered to show motive.

Plaintiffs contend that Pollard knew about the detrimental effect the downstream borrow operations had had upon the Perkins Street bridge, but he withheld this information from the city authorities. Plaintiffs assert that the evidence as to the amount of money paid by Trezevant to Pollard was relevant to show Pollard’s motive in withholding information from the city concerning the operations. Since Pollard, even though a party, was a key witness for the defendants, the plaintiffs assert that the court’s error in the exclusion of this testimony was certainly not harmless.

Defendants contend that the information sought by the question was irrelevant, prejudicial and nonprobative. Defendants contend that if such evidence were admitted, they would be forced to then come forward with proof concerning the nature of the services rendered by Pollard to Trezevant for which he was paid and the reasonableness of the amounts paid by Trezevant to Pollard. Defendants never contended that Pollard was not hired by Trezevant to perform the duties assigned in connection with these operations; and it was quite evident that Pollard practiced his profession for his livelihood. In addition, we note that Tre-zevant acknowledged he was a valuable client of Pollard.

The admissibility or exclusion of evidence rests within the sound discretion of the trial court which should be reversed only for abuse of that discretion. Pack v. Boyer, 59 Tenn.App. 141, 149-150, 438 S.W.2d 754, 758 (1968).

In McCormack v. Riley, 576 S.W.2d 358 (Tenn.App.1978), Judge Drowota, then on the Court of Appeals, said:

Having decided the excluded evidence has some probative value we now must address the conceptually distinct question whether the excluded evidence has sufficient probative value to warrant its admission despite the cost attending such admission. It is to this latter consideration that we understand the trial judge to have referred when he excluded the evidence because of remoteness in time. Not all logically relevant evidence is admissible. Thus evidence which would advance the inquiry but would also inflame or unduly distract the jury or require an undeserved expenditure of judicial time or unfairly surprise the opponent may not be admissible. See McCormick on Evidence § 185 (2d Ed.1972). The probative weight of evidence must be balanced against these attendant costs in determining whether that evidence should be admitted.

Id. at 360.

Although another court might have ruled differently on the admissibility of evidence excluded, we cannot say that the trial court abused its discretion in the exclusion of the evidence. The circumstantial evidence sought by plaintiff of an illicit motive could have been inferred by the jury from the evidence properly admitted to which we have alluded. Consequently, we do not find an abuse of discretion by the trial court in excluding this evidence of doubtful probative value.

6. The trial court erred in failing to instruct the jury that the defendants have the burden of proof as to the affirmative defenses of intervening superseding cause, and Act of God.

In this issue, plaintiffs also assert that the trial court’s charge was erroneous concerning the burden of proof placed upon the plaintiffs. The part of the charge complained of is as follows:

Whereas, in this case, the defendants deny their negligence, deny each and every material allegation of the complaint, then the law steps in and places upon the plaintiff, or the person suing, the burden of supporting and making out his case upon every material issue and controversy by the greater weight or preponderance of the evidence. In other words, the plaintiffs must show by the greater weight or preponderance of the evidence the nature and extent of the injuries and damages, and that the injuries and damages were proximately due to one or more of the acts of negligence alleged against the defendants.
The term, preponderance of the evidence, means that amount of factual information presented to you in this trial which is sufficient to cause you to believe that the allegation is probably true. In order to preponderate, the evidence must have the greater convincing effect in the formation of your belief.
If the evidence on a particular issue appears to be equally balanced, the party having the burden of proving it, proving that issue, must fail. You must consider all of the evidence pertaining to every issue regardless of who presented it.

Plaintiffs further assert that on the defenses presented by the defendants, the trial court did not instruct the jury as to the burden of proof in any manner.

Defendants contend, in response to plaintiffs’ allegation of error, that a fair reading of the above-quoted part of the charge correctly states the law, and that any failure of the court to charge the burden of proof on the specific affirmative defenses was waived by plaintiffs’ failure to submit special requests for instructions.

While in some respects, the trial court’s instructions to the jury could have been more explanatory, and in the ease of the above excerpts could have been more explicit, a fair reading of the charge indicates that the court is stating to the jury that when the defendants deny the allegations made against them, the burden of proof on these issues is cast upon the plaintiffs. This portion of the charge is a correct statement of the law, and, although the trial court used the phrase “every material issue in controversy,” we think in the context given, the instruction correctly states the law.

As to the specific error asserted concerning a lack of instruction by the court on the burden of proof regarding the special defenses raised by the defendants, we note that plaintiffs failed to submit special requests for instructions to inform the court of these alleged omissions. In Rule v. Empire Gas Corporation, 563 S.W.2d 551 (Tenn.1978), Justice Brock left little room for doubt as to the effect of allegedly incomplete instructions of the trial court to the jury in the absence of the special request therefore:

We hold that Rule 51.02 of the Tennessee Rules of Civil Procedure has not abolished or altered the rule announced in the Provence and Holmes cases, supra, that in order to predicate error upon an alleged omission in the instructions given to the jury by the trial judge he must have pointed out such omission to the trial judge at trial by an appropriate request for instruction.

Id. at 554.

In the case at bar, plaintiffs have not asserted that the trial court denied their special request for instruction as to burden of proof on the affirmative defenses relied upon by defendants. We must, therefore, assume that no such special request for instruction was made, and, consequently, plaintiffs cannot now raise this alleged error. We find plaintiffs’ assertions on Issue No. 6 without merit.

7. The trial court erred in refusing to instruct the jury on the law of strict liability, where the defendants were engaged in land excavation activities.

In order to predicate error upon alleged omission in the instructions given to the jury by the trial judge, the complaining party must have pointed out such omission to the trial judge at trial by an appropriate request for instruction. See Rule v. Empire Gas Corporation, 563 S.W.2d 551, 554 (Tenn.1978). Plaintiffs specify six separate special requests for instructions pertaining to the issue raised and we will confine our consideration of the issue presented to the refusal of these special requests.

1. An owner of property has an absolute duty not to use his property in such a manner as to injure other property or persons.
A landowner, who by making an excavation takes away the lateral support of neighboring grounds so as to cause it to fall, slide or break away, is liable for the injury regardless of how carefully he excavated.

The part of the special request relating to a landowner’s duty was included in the general charge, and the rest of the charge not supported by the record was properly excluded.

2. Dredging is an inherently dangerous or hazardous activity which cannot be delegated to an independent contractor.

This special request does not correctly state the law applicable to the facts contained in the record. Also, plaintiffs admit in their brief that dredging is not an inherently dangerous or hazardous activity per se.

3. Moreover, an owner of land abutting a highway has a duty to exercise reasonable care not to jeopardize or endanger the safety of persons using the highway. Such a duty cannot be delegated to a contractor.
This rule is specifically applicable to the owner of land adjacent to a public thoroughfare:
A possessor of land who creates or permits to remain thereon an excavation or other artificial conditions so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who (a) are traveling on the highway, or (b) foreseeably deviate from it in the ordinary course of travel.

The general charge adequately covered the duty of the landowner situated in the same position as defendants in this case. This special request does not in all particulars relate to the factual situation presented in this case, and therefore, it was properly excluded.

4. One who employs an independent contractor to do work which the employer knows or has reason to know to involve an abnormally dangerous activity, is subject to liability to the same extent as a contractor for physical harm to others caused by the activity.

The instruction requested herein was adequately covered by the general jury charge and, therefore, the trial court committed no error in excluding this charge.

5. The person who carries on an ultra-hazardous activity is liable, regardless of the care he uses, for injuries to persons or property of which such activity was the proximate cause.
The duty of responsibility cannot be escaped by contract with an independent contractor as it is a non-delagable [sic] duty.

That part of this special request concerning duties applicable from the facts in evidence was included in the general charge. That portion of the request relating to ultra-hazardous activity was properly excluded by the court based upon the record.

6. Dredging is an ultra-hazardous activity.

We have heretofore stated that the trial judge properly excluded this type of special request in the jury charge. We find no merit in plaintiffs’ assertion to Issue No. 7.

8. The trial court erred in instructing the jury on the Act of God defense, where there was no evidence that the bridge collapse was caused by the direct, immediate and exclusive operation of the forces of nature without human intervention nor any evidence of a natural phenomenon unforseeable in human experience.

Plaintiffs contend that no evidence exists in the record to support the Act of God charge given to the jury. However, plaintiffs do not complain that the charge is incorrect.

The defendants relied upon this defense in their respective answers. The record indicates evidence that supports this defense: unusual and extraordinary rapid rise in the level of the stream, a period of intense rainfall, and a great accumulation of debris at the bridge site. In view of the whole body of proof, we find that sufficient evidence exists to support this charge to the jury. Accordingly, plaintiffs’ assertion on this issue is without merit.

9. The trial court erred in instructing the jury on the responsibility of governmental authorities for closing the bridge where the governmental authorities were not parties and where their negligence was not at issue.

The part of the instruction complained of is as follows:

Under Tennessee law, the authority and responsibility for closing a bridge which was known or should have been known to be unsafe rests solely with the governmental authority. The defendants before you had neither the authority nor responsibility to close the Perkins Street bridge at any time.

Plaintiffs contend that this instruction is outside the facts and evidence at trial. We disagree. Defendants asserted as an affirmative defense the negligence of others, an independent intervening act. The city was mentioned throughout the trial, and evidence was introduced to show the city’s involvement in repair of the bridge on previous occasions and the concern of the city for the bridge’s stability on the night of this tragic occurrence. Under the defenses relied upon by defendant, and the facts introduced in support thereof, this part of the charge was proper, and therefore we find plaintiffs’ assertions without merit.

10. The trial court erred in dismissing the State defendants and the Chickasaw Basin Authority on the basis of sovereign immunity.

As previously noted, plaintiffs sued the State of Tennessee, several departments thereof and some individual officers and employees, which the plaintiffs, in their briefs have chosen to treat as one defendant, the State, which we will also do. In addition, plaintiffs sued Chickasaw Basin Authority, a public body corporate created by Chapter 409, Public Acts of 1973, codified as T.C.A. § 64-1-201 et seq.

Article I, Section 17, Constitution of the State of Tennessee, provides in part:

Suits may be brought against the State in such a manner and in such courts as the Legislature may by law direct.
T.C.A. § 20-13-102(a) provides:
Actions against state prohibited. — (a) No court in the state shall have any power, jurisdiction, or authority to entertain any suit against the state, or against any officer of the state acting by authority of the state, with a view to reach the state, its treasury, funds, or property, and all such suits shall be dismissed as to the state or such officers, on motion, plea, or demurrer of the law officer of the state, or counsel employed for the state.

As to the State, plaintiffs in their brief do not contend that sovereign immunity as established by the above-quoted part of the constitution and above-quoted statute is not the established law in this state. However, plaintiffs urge this court to change this law by virtue of judicial decree. We decline this invitation. As pointed out by Judge Todd in Jones v. L & N Railroad Co., 617 S.W.2d 164 (Tenn.App.1981):

The rule of sovereign immunity in Tennessee is both constitutional and statutory. It is not within the power of the courts to amend it.

Id. at 170.

As to defendant, Chickasaw Basin Authority, plaintiffs assert a different proposition. As pointed out, Chickasaw Basin Authority is a public body corporate created by the legislature with its own board of directors to guide it. T.C.A. § 64-1-204 (1982) provides in part:

Powers and duties — Tax exempt status — The powers, duties and functions of the authority shall be as follows: (1) to have perpetual succession in corporate name;
(2) to sue and be sued in corporate name;
* * * * * *

Plaintiffs assert that the provision in the statute allowing the authority to sue and be sued in corporate name is a waiver of sovereign immunity. On the other hand, Chickasaw Basin Authority contends that this section is not a waiver of sovereign immunity, because the courts to which the authority is subject are not designated.

The legislature established the Chickasaw Basin Authority as a corporate body, and it was designated as an entity for purposes of General State Obligation Financing, T.C.A. § 64-1-205 (1982). The general obligations of the State involve its treasury, funds or property as referred to in T.C.A. § 20-13-102 (1980). The purposes for which the authority was created, as stated by the legislative intent in T.C.A. § 64-1-202 (1982), indicate a broad governmental function. In Applewhite v. Memphis State University, 495 S.W.2d 190 (Tenn.1973), our Supreme Court in considering the question of sovereign immunity as it applied to a nonprofit corporation wholly owned by a state institution stated:

It is necessary to carefully consider the nature of the defendant entity asserting sovereign immunity, as well as the cause of action against which the doctrine is asserted to determine whether the sovereign immunity doctrine applies.

Id. at 196.

The court further said:

The fact that a State-controlled entity is incorporated does not, however, necessarily impose liability upon it. In University of Tennessee v. Peoples Bank, 157 Tenn. 87, 6 S.W.2d 328 (1928), this court said that cases holding state corporations liable were
founded, not upon the fact that the State had created a corporation as an agency for the possession and management of a portion of its property, but upon the nature and character of the corporation organized, as evidenced by its purpose and the kind and character of business transacted by it. 157 Tenn. at 93, 6 S.W.2d at 330.

Id. at 197.

It is noted that the legislature was quite explicit in stating its intent that the authority “shall be operated as a state agency subject to all fiscal requirements and procedures which apply to other state departments and agencies, and subject to joint local funding as stipulated in this part.” T.C.A. § 64-1-205(6) (1982).

In Reynolds v. Chickasaw Basin Authority, filed April 30, 1980, application for permission to appeal denied by the Tennessee Supreme Court September 2, 1980, the Court of Appeals, Western Section, in considering an action for breach of contract against Chickasaw Basin Authority, stated that the plaintiffs’ claim was directed at the state’s treasury, and, therefore, not authorized by T.C.A. § 20-1702 (now T.C.A. § 20-13-102). The court noted that plaintiffs’ recourse was properly with the Board of Claims pursuant to T.C.A. § 9-8-101 et seq. (1980). This likewise holds true for the case at bar.

11. The trial court erred in refusing to submit the issues of gross negligence and punitive damages to the jury, where the proof showed the defendants’ conscious indifference to the consequences of their excavation activities.

We agree with the statement in plaintiffs’ brief, “Normally the appellate court would not reach the issue of punitive damages where a defendant’s verdict has been rendered.”

We see no reason to depart from the sound statement of policy made by Judge Anderson in General Outdoor Advertising v. Coley, 23 Tenn.App. 292, 131 S.W.2d 305 (1938):

While there are exceptional cases principally arising out of the fact that we are an intermediate appellate tribunal, this court as a general rule endeavors to confine its decision to the question or questions that are determinative of the controversy and having decided these, brings its opinion to a conclusion upon the theory that the entire controversy having been decided, a decision upon questions, being unnecessary, would be of doubtful value from any viewpoint. Experience has proven beyond a doubt that, generally speaking, the wisest course is to pass on what is necessary to dispose of a controversy and then stop.

Id. at 309.

Consequently, we do not feel we should consider this issue.

Having disposed of all of the issues raised on appeal, we affirm the judgment of the trial court and assess costs against the appellants.

TOMLIN, J., and WEST, Special Judge, concur.


source: Caselaw Access Project

author: HIGHERS, Judge.

license: Public Domain

text:
    Helen PUSSER, Plaintiff and Appellant, v. S.Ralph GORDON and Stephen V. Ellspermann, Defendants and Appellees.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Oct. 4, 1984.
    Permission to Appeal Denied by Supreme Court Jan. 22, 1985.

      Erich W. Merrill, Memphis, for plaintiff and appellant.
    Leo Bearman, Jr., Memphis, Don L. Smith, Nashville, for defendants and appel-lees.
   HIGHERS, Judge.

The plaintiff, Helen Pusser, is the mother of Buford Pusser, former sheriff of McNairy County who is now deceased. At Buford Pusser's death on August 21, 1974, he left $250,000.00 to his mother and $260,-000.00 to his daughter, Dwana Pusser, in a guardianship estate. Helen Pusser was appointed guardian for Dwana Pusser, and Carl Pusser, plaintiff’s husband, and Gailya Davis, plaintiffs daughter, were appointed co-administrators of the Buford Pusser estate.

On April 11,1980, Helen Pusser filed suit against S. Ralph Gordon, a Nashville attorney, and Stephen V. Ellspermann, a certified public accountant, alleging that the defendants were guilty of professional negligence, willful fraud, and conspiracy to defraud, in connection with funds which were improperly paid by the plaintiff from the guardianship estate.

The trial court granted summary judgment for the defendants on all counts, and an appeal was duly perfected to this Court. This Court sustained the action of the trial court with reference to the allegations of negligence, based upon the running of the statute of limitations, but remanded the remaining matters to the trial court for further proceedings. After a trial upon the merits, the trial court directed a verdict in favor of the defendants from which the plaintiff has brought this appeal.

The case is, therefore, before this Court for the second time, but in this instance we are concerned only with the issues relating to fraud and conspiracy to defraud.

In order to develop the issues in this case, it is necessary to give a brief recitation of the factual background. Obsessed with the idea that her son had been murdered, the plaintiff employed an investigator named Larry Britt to inquire into the death of Buford Pusser and to probe for funds which the plaintiff believed had been wrongfully withheld from her son by the distributors of the motion pictures based on his life. The plaintiff paid for these investigative services with money from the guardianship estate. In September 1976, the Chancery Court froze the guardianship funds, and on April 23, 1977, the court removed Helen Pusser as guardian and entered judgment against her and her surety for the sum of $149,148.00, which was found to have been improperly paid from the guardianship estate (including some $105,000.00 which was paid to Britt).

Lloyd Tatum (now Judge Tatum of the Court of Criminal Appeals) served as the plaintiff’s legal counsel until August 1974. During that time he instructed plaintiff not to write any checks drawn on the guardianship estate without his approval. The plaintiff secured the defendant Gordon as her new counsel, and the defendant Ell-spermann was employed by the plaintiff after Britt picked his name from a list of three or four accountants furnished by Gordon.

In her complaint against Gordon and Ell-spermann, the plaintiff alleged that the negligence and breach of contract by the defendants caused her removal as guardian in that they failed to advise the plaintiff not to make unauthorized payments from the guardianship account. The complaint further alleged that the defendants were guilty of fraud in that they falsely represented to the plaintiff that she could use guardianship funds to pay Gordon, Ellsper-mann, and Britt for their services. She also contended that the defendants and Britt conspired in these matters to defraud the plaintiff.

At trial, the plaintiff presented evidence showing various checks drawn on the guardianship account made out to attorney Gordon, accountant Ellspermann, and investigator Britt. The plaintiff also testified that on December 14, 1975, attorney Gordon himself wrote out a check on the guardianship account in payment of his services and that she signed it. From this evidence, the plaintiff argues that the defendants knew that she was making unauthorized payments from the guardianship account.

The plaintiff contends that neither defendant informed her that she was not allowed to make payments from the guardianship funds. It is not questioned that Gordon and Ellspermann knew of the limitations on plaintiffs authority. She was restricted to expenditures of $1,000.00 per month from the guardianship account. The plaintiff concludes that since the defendants knew of the limitation, failed to inform her of it, and kept silent while she continued to disburse guardianship funds to Britt and others, a jury could infer that the defendants had conspired with Britt to drain the guardianship estate.

On the other hand, uncontroverted testimony was presented to the effect that attorney Gordon did not know of the payments from the guardianship account, that he never saw any of the checks, and that such payments were endorsed and deposited by his secretary. Concerning the December 14, 1975 check, Gordon testified that he did not write the check, that it was not his handwriting, and that his office diary showed that he was not in McNairy County at any time within several days of December 14. The plaintiff also acknowledged that she had no evidence that Gordon knew of any wrongdoing by Britt nor that the defendants overcharged for their services.

Concerning the plaintiff’s allegation that the defendants did not inform her of the limitation on her authority to draw on the guardianship account, the defendants point out that the plaintiff knew that she could not write checks from the guardianship estate beyond the $1,000.00 per month which had been authorized. It was admitted by the plaintiff that neither Gordon nor Ellspermann ever told her to write checks to Britt or others out of the guardianship account.

In an action for fraud, there must be proof of a false representation of an existing or past material fact. The false representation must have been made knowingly, without belief in its truth, or recklessly. Some person must have reasonably relied on it and suffered some damage as a result of the reliance. Graham v. First American National Bank, 594 S.W.2d 723 (Tenn.App.1979). The plaintiff may not recover for fraud, however, with respect to any matter about which she had actual knowledge. Bevins v. Livesay, 32 Tenn.App. 1, 221 S.W.2d 106 (Tenn.App.1949).

When reviewing the action of a trial court in granting a defendant’s motion for directed verdict, it is not the office of an appellate court to weigh the evidence. Rather, it must take the strongest legitimate view of the evidence in favor of the plaintiff, indulging in all reasonable inferences in the plaintiff’s favor, and disregarding any evidence to the contrary. Nevertheless, the trial court’s action may be sustained where the evidence is uncon-tradicted and a reasonable mind could draw only one conclusion. Bowers v. Potts, 617 S.W.2d 149 (Tenn.App.1981).

The evidence is uncontradicted, and, in fact, the plaintiff admitted in her testimony, that she knew from the beginning of her appointment as guardian that she was limited to spending no more than $1,000.00 per month from the guardianship estate. The admission of the plaintiff tends to negate the allegations which she makes against the defendants. It might be argued, however, that a plaintiff who is confronted with conflicting legal advice is entitled to rely on the representations of one’s current attorney. Even if a plaintiff failed to investigate the disparity, it could not be said that contributory negligence is a defense to an action for fraud. Commercial and Industrial Bank v. Scott, 664 S.W.2d 291 (Tenn.App.1983). “The perpetrator of a fraud should not be relieved on the ground that his victim was negligent in believing the misrepresentation and should have made an investigation of his own.” Bevins v. Livesay, 221 S.W.2d at 109.

Where the plaintiff has actual knowledge, as here, however, that the representation is false, an action for fraud will not lie. As stated in Bevins, “Fraud involves deception and if one knows the truth, and is not deceived, he is not defrauded,” citing Freeman v. Citizens’ National Bank, 167 Tenn. 399, 70 S.W.2d 25, 29. Even if defendants in the instant case had actually stated to plaintiff that she could spend from guardianship funds beyond the limitation, her own knowledge gained in open court would cast doubt upon her allegations of fraud. Where the uncon-tradicted proof shows, however, that defendants gave no such instructions to the plaintiff, and where the plaintiff had actual knowledge of the limitations imposed upon her by court, her action for fraud will not lie.

The plaintiff further alleged a conspiracy to defraud. As defined in Dale v. Thomas H. Temple Co., 186 Tenn. 69, 208 S.W.2d 344 (Tenn.1948), “[a] ‘conspiracy to defraud’ on the part of two or more persons means a common purpose, supported by a concerted action to defraud, that each has the intent to do it, and that it is common to each of them, and that each has the understanding that the other has that purpose.” 208 S.W.2d at 353-354. Having determined that plaintiff’s actual knowledge precludes her recovery for fraud, we hold that the plaintiff may not recover for conspiracy to defraud when fraud cannot be established.

As stated in 15A C.J.S. Conspiracy, § 9:

A mere conspiracy to commit a fraud is never of itself a cause of action; it must be proved that there was a conspiracy to defraud and a participation in the fraudulent purpose, either in the scheme or in its execution, which worked injury as a proximate consequence. It is the civil wrong resulting in damage and not the conspiracy which constitutes the cause of action for conspiracy to defraud.

The proof offered by the plaintiff consists of inferences built upon inferences. Because she wrote checks to the defendants on the guardianship account, she infers that the defendants knew that she was exceeding her authority as guardian. Building upon that inference, she further infers that since defendants knew of her improper disbursements, and they remained silent and did not instruct the plaintiff to cease such payments, they had an intent to deceive the plaintiff. Still further, she infers that since the defendants had an intent to deceive her, they therefore had a common, shared, and conspiratorial intent to deceive. It is clear that competent proof cannot be established by an inference drawn from an inference. Umstattd v. Metropolitan Life Insurance Co., 21 Tenn.App. 312, 110 S.W.2d 243 (Tenn. App.1937); Bowers v. Potts, supra. Based upon the evidence before the trial court at the conclusion of the proof, we believe that court was entirely correct in directing a verdict for the defendants.

For the reasons stated, the action of the trial court is affirmed. Costs are assessed against the plaintiff-appellant.

NEARN, PJ. (W.S.), and TOMLIN, J., concur.


text:
    James Darrell STALLCUP, Plaintiff-Appellant, v. Ira J. DUNCAN and Allstate Insurance Company, Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Oct. 10, 1984.
    Application for Permission to Appeal Denied by Supreme Court Dec. 10, 1984.

      R.Y. Jarvis, Memphis, for plaintiff-appellant.
    T. Tarry Beasley, II, David E. Gordon, Memphis, for Allstate.
    Alan S. Klieman, Memphis, for Duncan.
   CRAWFORD, Judge.

Plaintiff Stallcup appeals from the order of the trial court granting summary judgment for defendants Ira J. Duncan and Allstate Insurance Company. Plaintiff sustained personal injuries in a collision of his three-wheel cycle with defendant Duncan’s four-wheel dune buggy, and filed a complaint for damages against defendants. Process was served on Allstate Insurance Company (hereinafter Allstate) pursuant to T.C.A. § 56-7-1206, because Duncan was uninsured. Allstate’s answer denies that plaintiff is entitled to uninsured motorist coverage by virtue of certain provisions of the policy which we will discuss hereinafter. The contract action against Allstate was severed from the tort case for separate trial. Allstate then filed a motion for summary judgment which the court granted, and this appeal resulted.

There is no dispute as to the facts, which are as follows:

Plaintiff was riding a three-wheel cycle when it collided with a four-wheel dune buggy, owned and driven by defendant Duncan. The accident occurred, as described by plaintiff in his brief, “several hundred feet west of Covington Pike Bridge that spans the Wolf River in an area that is made up of some dirt roads and/or trails that run along beside the area of the Wolf River. These road and/or trails are used by the general public for the purpose of riding various types of motor vehicles, some licensed for road use, and some not so licensed.”

Neither of the vehicles involved in this collision was licensed for road use, and the undisputed facts establish that the dune buggy driven by defendant was a vehicle that was not designed for use on public roads.

Plaintiff bases his appeal upon two theories. First he contends that the defendant’s vehicle, a dune buggy, is an uninsured vehicle within the contract terms of the plaintiff’s policy. Second, plaintiff asserts that Allstate’s exclusion of coverage for injuries sustained by vehicles designed for use off public roads is inconsistent with state statutes. Reasoning further, he alleges that where there is an inconsistency, as there is here, the statutory definition should control.

I. Plaintiff was insured under one or more automobile liability insurance policies issued by Allstate Insurance Company, each of which contains uninsured motorist protection. The parts of the policies pertinent to the case before us are as follows:

SECTION II
PROTECTION AGAINST BODILY INJURY AND OPTIONAL PROPERTY DAMAGE BY UNINSURED AUTOMOBILES
COVERAGES SS — Uninsured Motorists Insurance
Allstate will pay all sums which the insured ... shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of (a) bodily injury, ... sustained by the insured, ... arising out of the ownership, maintenance or use of such uninsured automobile....
Definitions of words used under this Section
* * * * * *
3. “uninsured automobile” menus:
(a) a motor vehicle with respect to the ownership, maintenance or use of which, there is, in at least the amount specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no automobile liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or with respect to which there is an automobile liability bond or insurance policy applicable at the time of the accident but the company writing the same either has denied coverage thereunder or is or becomes insolvent;
⅜ ⅝ ⅜: * sfe ⅝
but the term “uninsured automobile” shall not include:
* ⅜ ⅝ * * *
(v) a farm type tractor or equipment designed for use principally off public roads, except while actually upon public roads.
# * ⅝ ⅝ ⅝

Specifically, plaintiff asserts that the exclusion “a farm type tractor or equipment designed for use principally off public roads ...” excludes only a farm type tractor or other equipment used therewith.

In interpreting an insurance contract the language of the contract shall be given its usual and ordinary meaning, See Parker v. Provident Life and Accident Insurance Company, 582 S.W.2d 380, 383 (Tenn.1979), and the court should not create an ambiguity when none exists. Inman v. Life & Cas. Ins. Co., 164 Tenn. 12, 45 S.W.2d 1073 (1932). In following these rules of contract construction, we think it is quite clear that the description of a “farm type tractor” is unequivocably a vehicle that is “designed for use principally off public roads,” and is surely recognized universally as such a vehicle. With that in mind, we can only conclude that the use of the word “equipment” was intended to describe other types of vehicles that might be designed for use principally off public roads. We have been unable to find any Tennessee case supporting this reasoning, but a case closely analogous to the case at bar is Williams v. Cimarron Insurance Company, 406 S.W.2d 173 (Tex.1966).

Williams involved an action to recover medical, hospital and funeral expenses under the medical payment provision of an automobile insurance policy. The insured was injured while driving a stock car racer, and the question presented in the case was whether this vehicle was within the definition of “automobile” and covered under the policy. The policy definition of automobile as set out in the opinion was:

[T]he word automobile means a land motor vehicle or trailer not operated on rails on crawler-treads, but does not mean “(1) a farm type tractor or other equipment designed for use principally off public roads, except while actually upon public roads_” (Emphasis in original).

Id. at 174.

The plaintiff-insured contended in Williams that the words “other equipment” must be construed as meaning something similar to a “farm type tractor” under the rule of ejusderum generis and argued that the stock racer, being a land motor vehicle and not being a piece of equipment similar to a farm type tractor, would not be an excluded vehicle for purposes of recovery under the medical payment clause of the policy. The Texas court in considering plaintiffs contention said:

We are unable to agree with petitioner’s argument. To us, the restrictive proviso designates two distinct classifications. It plainly stated that the word automobile does not mean “a farm type tractor or other equipment designed for use principally off public roads.” The phrase “designed principally off public roads” does not convey the notion that something similar to a farm type tractor was intended by the contracting parties.

Id. at 175.

We agree with the reasoning of the Texas court and hold that the exclusion from the definition of “uninsured automobile” in plaintiff Stalleup’s policy specifically excludes defendant Duncan’s vehicle as an uninsured automobile.

II. Plaintiff further contends that in any event the vehicle of defendant Duncan is not excluded as an uninsured motor vehicle or uninsured automobile because of the statutory definition of such vehicle contained in T.C.A. § 56-7-1202 (1983).

“Uninsured motor vehicle” defined. —For the purpose of this coverage, the term “uninsured motor vehicle” means a motor vehicle whose ownership, maintenance, or use has resulted in the bodily injury, death, or damage to property of an insured, and for which the sum of the limits of liability available to the insured under all valid and collectible insurance policies, bonds, and securities applicable to the bodily injury, death, or damage to property is less than the applicable limits of uninsured motorist coverage provided to the insured under the policy against which the claim is made.

Plaintiff argues that, since this definition does not specifically exclude a vehicle such as the one involved in the accident, the statute is controlling as to whether coverage is afforded by the policy. We disagree with plaintiff in this regard.

The question presented by plaintiff’s assertion is one of first impression in this state. For its answer, we look first to the general rules of statutory construction, and second to the application of these rules to the interaction between two pertinent sections of the Tennessee code.

As pointed out by our Supreme Court in Tidwell v. Collins, 522 S.W.2d 674 (Tenn.1975):

The premier rule of statutory construction is to ascertain and give effect to the legislative intent. Lawrence v. Lawrence, 35 Tenn.App. 648, 250 S.W.2d 781 (1952). In doing this we look to the general purpose to be accomplished. State v. Yoakum, 201 Tenn. 180, 297 S.W.2d 635 (1956).

Id. at 676.

The intent and purpose of the Uninsured Motorist Act is to provide protection by making the insurance carrier stand as the insurer of the uninsured motorist. See Glover v. Tennessee Farmers Mutual Insurance Co., 225 Tenn. 306, 468 S.W.2d 727 (1971). Uninsured motorist insurance coverage is an adjunct to the automobile liability insurance policy. See T.C.A. § 56-7-1201 (Supp.1983). Thus, the insured is allowed to purchase uninsured motorist coverage for the protection that he would have had if the alleged tortfeasor had assumed his own financial responsibility by purchasing liability insurance.

Following this reasoning we turn our attention to the second applicable statutory act — the Tennessee Financial Responsibility Law of 1977. This act, at § 55-12-101 et seq. was referred to in the Uninsured Motor Vehicle Coverage Act, § 56-7-1201 (1980) and is cited in the Í982 Act as well. T.C.A. § 55-12-101 et seq. (1983). The Financial Responsibility Act of 1977 and its predecessor address the financial responsibility of persons causing motor vehicle accidents. Unquestionably, one of the methods for providing financial responsibility is the use of automobile liability insurance policies. Thus, the financial responsibility law and the provisions pertaining to liability insurance, including uninsured motorist coverage, are closely related.

Continuing to draw parallels between these two acts and their interrelationship, we point next to the definition of “motor vehicle” as contained in the Financial Responsibility Act. That definition is “every self-propelled vehicle which is designed for use upon the highway.” See § 55-12-102 (1980) (now § 55-12-102 (Supp. 1983)) Here we must assume the legislature, in providing the definition of “uninsured motor vehicle” in the uninsured motorist acts of 1982, T.C.A. § 56-7-1202 (Supp.1983), was well aware of the definition of motor vehicle as used in connection with matters relating to automobile accidents. It is logical to assume that the legislature intended for this same definition to carry over into the provisions of insurance policies that likewise involve the payment of damages for automobile accidents. Therefore, we hold that the definition of uninsured motor vehicle set forth in T.C.A. § 56-7-1202 (Supp.1983) is amplified to include the definition of motor vehicle as “every self-propelled vehicle which is designed for use upon the highway” — the financial responsibility law definition. Since the four-wheel dune buggy driven by defendant Duncan was not designed for use upon the highway, and was not being operated upon a public road, the vehicle does not come within the definition of an uninsured motor vehicle under the statute, nor under the policy of insurance in question.

Although not binding on this court, a limited number of decisions from other states support our views and particularly the rationale of utilizing the financial responsibilities laws to refine the definitions in automobile liability policies. Therefore, we fortify our decision with an analogous Missouri case and the judicial reasoning therein as well as the Missouri court’s application of the statutory provision for financial responsibility.

In Meeks v. Burkbuegler, 632 S.W.2d 24 (Mo.Ct.App.1982), the suit resulted from an off-road accident between a motorcycle and a dune buggy. The operator of a motorcycle had an insurance policy with State Farm Mutual Automobile Insurance Company which contained uninsured motorist coverage. Since the owner and operator of the dune buggy did not have insurance, the operator of the motorcycle contended he was entitled to have coverage under his State Farm policy providing uninsured motorist coverage. The pertinent part of the State Farm policy is set out in the opinion as:

“Uninsured Motor Vehicle — Means:
1. A land motor vehicle not insured or bonded for bodily injury liability at the time of the accident; ... An uninsured motor vehicle does not include a land motor vehicle:
5. designed for use mainly off public roads except while on public roads;

Id. at 26.

In Meeks, the insured contended, among other things, that the clause in the policy was void as against the public policy of the uninsured motorist statute, which is to provide the insured motorist with at least the same amount of protection he would have been provided if the tortfeasor had complied with the motor vehicle safety responsibility law. The Motor Vehicle Safety Responsibility Law in Missouri requires the posting of security or the suspension of an operator’s license upon the report of a motor vehicle accident. This is not unlike the financial responsibility statute in our state. The requirement in both states is to report a “motor vehicle accident.” The definition of motor vehicle set out in the Safety Responsibility Law of Missouri is “a self-propelled vehicle which is designed for use upon a highway, including trailers designed for use with such vehicles_” Mo.Rev. Stat. 303.020 (1978). This definition is identical to the definition contained in the Tennessee Financial Responsibility Law. The Missouri court held that the dune buggy involved was not a motor vehicle within the meaning of the statute and the policy, and the policy clause was not void as against public policy. For similar results, see also Walcott v. Hawkeye-Security Insurance Co., 201 N.W.2d 817 (Neb.1972).

We affirm the order of the trial court granting summary judgment to Allstate. The costs of the appeal are assessed against the appellant.

TOMLIN and HIGHERS, JJ., concur.


author: JOHN D. TEMPLETON, Special Judge.

text:
    STATE of Tennessee, Appellee, v. Larry D. NEWSOM, Appellant.
    Court of Criminal Appeals of Tennessee, White County, Nashville.
    April 4, 1984.
    Permission to Appeal Denied by Supreme Court June 18, 1984.

      William M. Leech, Jr., Atty. Gen., Jerry L. Smith, Asst. Atty. Gen., Nashville, John C. Knowles, Asst. Dist. Atty. Gen., Sparta, for appellee.
    John W. Price, Dyersburg, for appellant.
   OPINION

JOHN D. TEMPLETON, Special Judge.

In a bench trial Larry D. Newsom was convicted of making and delivering a bad check, T.C.A. 39-3-301, in the amount of $1,000 and sentenced to a term of three years. On appeal he submits the facts fail to show the essential element of intent to defraud because (1) the check was given for payment on a preexisting debt and (2) the prosecutor had notice the check was bad because it was issued and delivered in a continuing business transaction in which appellant gave the prosecutor two other bad checks. We conclude the proof shows fraudulent intent and affirm the judgment.

The state’s proof showed that Bob Spark-man was in the business of distributing tanning lotions and related products in Tennessee. Commencing May 11, 1979 and running through June 21, 1979 Sparkman sold products to appellant in the amount of $6,389.80 on which appellant paid $870.04 leaving a balance of $5,519.76. Appellant had given Sparkman a check for one invoice on May 11, 1979 for $1689.60 but had told Sparkman to hold the check which he did.’ He presented the check in August 1979, after the events out of which the prosecution arose, and the check was dishonored. No prosecution on this check occurred because it was given to be held by Sparkman in the first place.

On July 10, 1979 appellant bought more merchandise from Sparkman for $986.40 which was added to appellant’s account. At the same time he received the merchandise he gave Sparkman two checks for $1,000 each for application on the preexisting debt. Sparkman would not have parted with the additional goods without receiving the checks.

One of the checks was dated about a week ahead because appellant represented he would not have enough money on deposit to take care of it until that time. Spark-man was to negotiate the check after its date. It appears he did present the check later as agreed but it came back unpaid. No prosecution occurred on this check.

The other check was dated July 10, 1979, the date the goods were delivered. Spark-man negotiated the check immediately and it was dishonored. The account on which it was drawn was closed. This is the check on which appellant was prosecuted. Appellant testified he told Sparkman the account was closed and to hold the check until the next week but the judge did not believe the testimony. It is apparent from Sparkman’s testimony that he received no such information and relied on the check to be good.

The general rule is, where the statute specifies the obtaining of something of value as an element of the offense, the giving of a worthless cheek in payment of a preexisting debt is not a violation of the statute. Since the debt remains unpaid the maker of the check did not obtain anything of value from the payee and did not give the check with intent to defraud. 32 Am.Jur.2d, False Pretenses, Sec. 82.

Our bad check law formerly was Chapter 178 of the 1915 Acts of Assembly as codified and amended from time to time. It prohibited obtaining with fraudulent intent money or other property or credit by means of a worthless check. Our present law which originated in Chapter 322 of the 1967 Acts of Assembly is different in that it prohibits the making or delivering with fraudulent intent of a worthless check “for the purpose of obtaining money, services, or any article of value, or to obtain credit”. However, the distinction between actually obtaining something of value by means of a worthless check and making or delivering a worthless check for the purpose of obtaining something of value is not significant, in our opinion, in the application of the general rule referred to. We think that under either statute if the worthless check is given in payment of a preexisting debt, nothing else appearing, there is no fraudulent intent.

However, our bad check law always has included credit as a right or property that may be the target of a worthless check. As already noted, our present law provides it is unlawful for a person with fraudulent intent to make or deliver a worthless check “to obtain credit”. T.C.A. 39-3-301. In Tines v. State, Tenn.Cr.App., 553 S.W.2d 913 (1977), the defendant issued a worthless check for deposit in the account of a company called Tiny Auto Electric, Inc. The bank credited the account of the company with the amount of the check and paid the company’s checks out of the amount credited before the defendant’s check came back dishonored. It was held the defendant issued the check to obtain credit for the company in violation of T.C.A. 39-3-301.

Although appellant made and delivered the check here for the purpose of payment on a preexisting debt, this was not the only purpose. He made and delivered it for the further purpose of obtaining additional credit. He in fact obtained additional credit in the amount of $986.40. We think this makes out the element of fraudulent intent.

Appellant submits that even if the check was given to obtain credit, fraudulent intent was not made out. He insists the prosecutor had notice the check was bad because it was made and delivered in a continuing transaction in which appellant gave the prosecutor two other bad checks. As already noticed, on May 11, 1979 appellant gave a check for $1,689.60 which was to be held an indefinite time; and on July 10, 1979 he gave a postdated check for $1,000 which was to be held until its date and then negotiated. Appellant relies on Jones v. State, 197 Tenn. 667, 277 S.W.2d 371 (1955).

In Jones the defendant was convicted at trial for passing two bad checks of $10 each. The prosecutrix had taken the second check after the first one came back unpaid. The Supreme Court said:

We think there is material evidence sufficient to take the case to the jury on the controversial issue of fraudulent intent in passing the first check to the prosecu-trix. But the evidence preponderates in favor of defendant’s innocence of passing the second check with fraudulent intent. We base this assertion on the fact that the first check had been returned by the bank to the prosecutrix and it was in her possession when she cashed the second check at defendant’s request. 277 S.W.2d at 373.

But the decision was not entirely on the fact the first check had been returned when the second check was cashed. The Court previously had recited:

The defendant testified “that when he asked Dorothy Cole, the prosecutrix, to cash the second check, she advised him that the first one had not been paid; that he then told her that he hadn’t sufficient money at the time and if she would hold both checks he would take them up later, to which she agreed.” He further testified “that his failure to keep his promise was due to his inability to get employment and make sufficient money to pay same”.
The prosecutrix made no denial that she agreed with the defendant to hold the checks as requested... (Emphasis by Supreme Court). 277 S.W.2d at 373.

The prosecutrix agreed to hold the second check as stated in the opinion and observed in headnote 4.

We are unable to say that Jones holds the prosecutrix had notice the second check was bad because the first check was. Also, the facts in Jones are different from the facts in the instant case.

Appellant seems to insist that the prosecutor had notice the check was bad because he should have known it in view of his experience with appellant. The claim has been advanced before in connection with the bad check law and rejected. It has been held that conviction is proper even if the victim could with reasonable diligence and prudence have ascertained that representations made by the accused were false. Cook v. State, 170 Tenn. 245, 94 S.W.2d 386 (1936).

In our opinion the prosecutor was not charged with notice the check was bad because of the other two checks or the transactions between the parties. We think fraudulent intent is shown by the proof.

All of the issues are decided against appellant and the judgment is affirmed.

DAUGHTREY and BYERS, JJ., concur.


author: TATUM, Judge.

text:
    STATE of Tennessee, Appellee, v. Charles A. NORRIS, Appellant.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Oct. 3, 1984.
    Permission to Appeal Denied Jan. 28, 1985.

      Lionel R. Barrett, Jr., Barrett & Redick, John E. Rodgers, Jr., Nashville, for appellant.
    William M. Leech, Jr., Atty. Gen., Jerry L. Smith, Asst. Atty. Gen., Jack Seaman, W.E. Barnard, Asst. Dist. Attys. Gen., Nashville, for appellee.
   OPINION

TATUM, Judge.

The defendant, Charles A. Norris, was convicted of first degree murder and armed robbery and sentenced to concurrent sentences of life and 60 years, respectively. On this appeal, he presents several issues which we find to be without merit.

The defendant does not attack the sufficiency of the evidence. The State’s principal witness was a 24-year-old woman named Kathy Payne. Prior to the murder, Ms. Payne was employed at Aquarius Industry in Nashville where the victim, James Clifton Carpenter, was a supervisor. Ms. Payne had visited in the victim’s house on several occasions and had spent some nights there with the victim.

About two weeks before the crime was committed, Ms. Payne began living with Norris, Norris’ wife Gwen, and Danny Ray Sharp. These four people, who used drugs almost every day, obtained the money to sustain their habit by committing burglaries. On the night the instant crime occurred, Norris, Sharp and Ms. Payne had been using drugs and planning to burglarize the victim. Their plan was that Ms. Payne would detain the victim while her two accomplices would steal guns and other property. Before leaving their apartment, in the presence of the defendant and Ms. Payne, Sharp got a pistol. They also took socks to wear on their hands.

Ms. Payne first entered the house and occupied the victim in the kitchen. Contrary to plans, the two men entered the kitchen and Sharp held the pistol on the victim. They ordered Ms. Payne to lie on the floor and they took the victim to the hallway where they forced him to lie on the floor. Before going to the basement, the defendant obtained an extension cord with which the victim was bound. The two men then took the victim to the basement. The defendant came back upstairs while Sharp remained in the basement and Ms. Payne and the defendant began ransacking the house. Sharp called Norris back to the basement to help him do something. When Norris came back upstairs he looked sick and told Ms. Payne not to go into the basement. At about this point, she heard the victim say, “You’re killing me.” She then heard “gargling or drowning or something.”

Ms. Payne testified that Sharp forced her into the basement where she saw the victim in a puddle of blood. Sharp told her that the same thing would happen to her if she did not keep her mouth shut. All three of them then returned to the main floor and stole a television set, some guns, a pocketbook, and a jar of pennies. Sharp took this property to their apartment in the victim’s truck. Norris and Ms. Payne walked back to their apartment.

The victim’s body was found in the basement in a puddle of blood. His hands were tied in front of him with extension cords. A tube sock had been used as a gag. A large knife was embedded in his back. A heavy wrench was found with human hair on it. The victim had died from four stab wounds in the body and at least two blows to the head.

The testimony of Ms. Payne was contradicted by the defendant and Sharp. The defendant testified that they had not discussed committing any crime upon the victim. He denied being in the house when the victim was killed, and testified that when he entered the house Ms. Payne, who was washing blood from her hands, told him that if he mentioned anything he and his wife would be the next to die. Sharp likewise testified that they had not discussed burglary prior to going to the victim’s house, and that the defendant did not enter the house until after the actual robbery and a scuffle leading to the victim’s death. Since the sufficiency of the evidence is not questioned and because the jury accredited the testimony of the State’s witnesses, we will not further detail the evidence. We do observe however that the evidence meets the standard required by Rule 18(e), T.R.A.P.

In the first issue, the defendant says that T.C.A. § 39-2-202(a) is unconstitutional insofar as it defines first degree murder as a murder committed in the perpetration of certain felonies named in the statute. He asserts that malice or specific intent is constitutionally required for a conviction. Without examining the correctness of this assertion, we note that T.C.A. § 39-2-201 defines “murder generally” and provides that either express or implied malice aforethought is essential to both first and second degree murder. If the offense is committed in the perpetration of a felony designated in § 39-2-202(a), the elements of malice, deliberation and premeditation are implied. Tosh v. State, 527 S.W.2d 146 (Tenn.Crim.App.1975).

The defendant cites Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), for the proposition that the felony/murder statute violates State and federal due process. The En-mund case does not support this contention. The case holds only that the death penalty is cruel and unusual punishment when imposed upon a robber who did not kill, attempt to kill, intend to participate in or facilitate a murder. Enmund treated a felony/murder statute as being valid. We find no merit in this issue.

In the next two issues, the defendant complains that the State was permitted to qualify the jury with regard to the death penalty. He says that Enmund v. Florida, supra, clearly prohibited the imposition of the death penalty in his case. He further claims that the State was not in good faith in seeking the death penalty but sought it only to make “the jury think that it was a much more serious case than it really was,” and to exclude jurors who would not impose the death penalty.

We find no reversible error occurred from the trial court allowing the instant case to go to the jury as a capital case. First, the defendant Norris was not nearly as far removed from the murder in the case at hand as was the defendant in Enmund v. Florida. In the Enmund case, the defendant remained in the automobile while two accomplices attempted to rob an elderly couple. One of the victims shot one of Enmund’s accomplices and the accomplices shot and killed both victims. Enmund was not present, had no knowledge of the homicides and clearly did not participate in them. In the case at bar, there was evidence that the defendant and Sharp participated in the assault upon the victim with the pistol. The defendant assisted in binding the victim’s hands and forcing him into the basement. While Sharp was doing something to the victim, the defendant went into the basement where something was taking place that made him sick. We do not agree that there was “clear evidence indicating that the death penalty could not be imposed.” Nor do we agree that the entire record indicates that the State did not act in good faith in seeking the death penalty.

Moreover, the death penalty was not imposed. The defendant asks us to take judicial notice that studies reveal that jurors who oppose the death penalty more often acquit. This we decline to do. We have no knowledge of any such studies and might well disagree with them if we did. We agree with the United States Supreme Court’s statement in Witherspoon v. Illinois, 391 U.S. 510, 517-518, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) that

“We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.”

The defendant states that the trial court erred in denying his motion to be given an arrest history of the State’s witness, Kathy Payne. The defendant made a pretrial request for the arrest history of the witness pursuant to T.C.A. § 40-32-101(c)(3). T.C.A. § 40-32-101 provides for the removal and destruction of all public records when a person, who has been acquitted or otherwise discharged without conviction after arrest, petitions the court for expunction of such records. The statute on its face excludes arrest histories and other records maintained for law-enforcement purposes from expunction. § 40-32-101(b).

The record does not indicate whether or not Ms. Payne ever petitioned for the ex-punction of arrest records. However, the record expressly and affirmatively reveals that defense counsel was aware of all arrests of this witness of which the State had knowledge.

Moreover, evidence of arrest without conviction, absent extraordinary circumstances, is immaterial for impeachment or any other purpose. State v. David Earl Miller, 674 S.W.2d 279 (Tenn.1984); State v. Morgan, 541 S.W.2d 385 (Tenn.1976). No extraordinary circumstance that would make the arrest record material is shown. If the trial court erred in refusing to order the State to furnish the defendant with a copy of the witness's arrest record, then the error is obviously harmless.

In the next issue, the defendant complains that he was denied leeway in cross-examining Kathy Payne regarding promises of leniency made to her by the State in exchange for her testimony. He says that there were two misdemeanor convictions for which she was given a suspended sentence and that she was given special treatment when she was not required to serve these sentences.

The witness was fully questioned about promises made to her in return for her testimony. She was a codefendant in this case and admitted that he trial was severed from that of Norris and that her truthful testimony would be considered in the disposition of her case. She denied being aware of any special treatment in any of the other cases pending against her, including the two misdemeanor cases. No proof was offered to show that Ms. Payne’s testimony in this regard was untruthful or mistaken. An accused has the right to explore on cross-examination promises of leniency made by the prosecution to prosecution witnesses. State v. Hamilton, 628 S.W.2d 742 (Tenn.Crim.App.1981). The defendant was not denied this right. This issue is meritless.

Defendant says the trial court erred under State v. Morgan, 541 S.W.2d 385 (Tenn.1976), in allowing the State to impeach his testimony by showing prior armed robbery convictions. Defendant bases this assertion on two grounds: (1) the prior crimes were so similar to this one that the danger of prejudice was too great (see Long v. State, 607 S.W.2d 482 (Tenn.Crim.App.1980)); (2) the crime of armed robbery has no bearing on credibility and should have been excluded.

In State v. Fluellen, 626 S.W.2d 299 (Tenn.Crim.App.1981), this court held that robbery is a form of stealing which is dishonest conduct and can therefore be used to impeach the credibility of a testifying defendant without the necessity of the trial judge weighing probative value against prejudicial effect. The Long case cited by defendant, was dealing with the prior crime of murder which does not involve dishonesty and is subject to the balancing test of probative value versus prejudicial effect. This issue is overruled.

The defendant next claims that he was subjected to double jeopardy when convicted of both first degree murder and armed robbery. He cites Acres v. State, 484 S.W.2d 534 (Tenn.1972) for the proposition that double jeopardy would bar a conviction for both murder and robbery arising out of the same transaction. Secondly, defendant alleges his murder conviction was essentially a felony/murder conviction and thus conviction for both the murder and underlying felony are barred. See Briggs v. State, 573 S.W.2d 157 (Tenn.1978).

The Acres case was decided when the “same transaction” test was generally regarded as the test to be applied in determining identity of offense problems. In State v. Black, 524 S.W.2d 913 (Tenn.1975), the “same transaction” test was rejected. In Briggs v. State, supra, the Supreme Court held that whether both a felony/murder conviction and a conviction for the underlying felony may both stand is dependent upon the indictment. It was held that if the indictment for murder upon which the jury found the defendant to be guilty charges felony/murder, then both convictions cannot stand. If the indictment for which the defendant is convicted of murder charges murder in the common law form, then both convictions may stand. This rule was apparently followed by the Supreme Court in State v. Johnson, 661 S.W.2d 854 (Tenn.1983). In the instant case, the indictment is in common law form, expressly charging that the murder was committed “feloniously, willfully, deliberately, premeditatedly and maliciously.” We therefore hold both convictions may stand without violating the defendant’s rights against double jeopardy.

Finally, the defendant insists that the trial court erred in refusing the requested instruction to charge the jury as to the offense of accessory after the fact. The defendant was not indicted for being an accessory after the fact and this offense is not a lesser included offense. The trial judge therefore properly refused the request for this instruction. State v. Hoosier, 631 S.W.2d 474, 476 (Tenn.Crim.App.1982).

The judgment of the court below is affirmed.

DUNCAN and CORNELIUS, JJ., concur.