Note that when govt employees get free parking, then everyone in town must get free parking. In Onks vs City of Cookville, 2 lawyers ignored 150 parking tickets, since they lack personal service of process as required for all civil lawsuits. Cookville got greedy and sued for the 150 parking tickets, won in city court, won in county court, won in state court of appeals, but the lawyers called their bluff and appealed to state supreme court. Then Cookvile dropped their "winning" case and removed all 200 parking meters in town, giving everyone free parking, since judges get free parking. Onks vs Cookville is an "unpublished" opinion, which means it's bogus law that cannot be cited in other cases. That's why it's a good idea to telephone the lawyers on a case to get the real story. Default judgement is not allowed without personal jurisdiction of the court, which requires personal service of process of the lawsuit, by either hand-delivering the complaint to the person sued, or mailing to their home with signature receipt required. Govt is too lazy and greedy to follow these basic rules, as required in all courts.
City of Cookeville v. Onks
1993 WL 398472
Tenn.App.,1993.
Oct. 1, 1993. (Approx. 2 pages)Only the Westlaw citation is currently available.
SEE COURT OF APPEALS RULES 11 AND 12
Court of Appeals of Tennessee, Western Section, at Nashville.
CITY OF COOKEVILLE, Tennessee, Plaintiff/Appellee,
v.
Ernest C. ONKS, Sr. and Jerry Burgess, Defendants/Appellants.
Oct. 1, 1993.Appeal from the Putnam Circuit County, No. 01A01-9304-CV-00147; JohnTurnbull, Judge. AFFIRMED.
Everett H. Falk, Cookeville, for plaintiff-appellee.
Ronald Thurman, Cookeville, for defendants-appellants.
HIGHERS, Judge.
MEMORANDUM OPINION [FN1]
FN1. Rule 10 (Court of Appeals). Memorandum Opinion.--(b) The Court,with the concurrence of all judges participating in the case, may affirm,reverse or modify the actions of the trial court by memorandum opinionwhen a formal opinion would have no precedential value. When a case isdecided by memorandum opinion it shall be designated "MEMORANDUM OPINION,"shall not be published, and shall not be cited or relied on for any reasonin a subsequent unrelated case.
*1 E.C. Onks appeals from an order of the Circuit Court at Putnam Countydirecting him to pay $315.00 plus interest to the City of Cookeville fortwenty-one parking violations. [FN2]
FN2. Jerry Burgess appealed from an order of the Circuit Court at Cookevilledirecting him to pay $1,815.00 plus interest for 121 parking violations.Burgess, however, failed to file an appellate brief, and, we affirm thejudgment of the trial court as against him.
Over a period of approximately three years Onks parked vehicles in meteredspaces in the downtown area of Cookeville in violation of Cookeville CityCode, Title 9, Chapter 5, Section 9-508 on twenty-one (21) occasions forwhich he was given citations. When Onks did not pay the citations, warrantswere issued on each of the alleged parking violations. Section 9-508 provides:
9-508. Unlawful parking in parking meter spaces. It shall be unlawfulfor the owner or operator of any vehicle to park or allow his vehicle tobe parked in a parking space regulated by a parking meter for more thanthe maximum period of time which can be purchased at one (1) time eventhough by "feeding" the meter he keeps it from indicating unlawful parking.
Furthermore, no owner or operator of any vehicle shall park or allowhis vehicle to be parked in such a space when the parking meter thereforindicates unlawful parking whether such indication is the result of a failureto deposit a coin and/or operate the lever or other actuating device onthe meter or the result of the automatic operation of the meter followingthe expiration of the lawful parking time subsequent to depositing a cointherein at the time the vehicle was parked.
At the hearing on the warrants, Onks contended that all parking ordinancesof the City of Cookeville were invalid and unconstitutional under Article11, Section 8 of the Tennessee Constitution and under the Fourteenth Amendmentto the United States Constitution because the city had reserved some parkingspaces on city streets to citizens, entities, and government officialswhile enforcing overtime parking violations against him. The factual basisof Onks' defense is that the City of Cookeville granted special parkingprivileges for various individuals and businesses by erecting reservedparking signs and specifying loading zones in the downtown area of Cookeville.Anyone may submit an application for special parking to the city managerof Cookeville who decides whether or not to grant such privilege. The citymanager relies on Cookeville City Code, Title 9, Chapter 1, Section 9-121and Chapter 5, Section 9-517 for authority to regulate parking and to designateparking spaces as reserved and as loading zones. Section 9-517 providesthat the recipients of such special parking privileges must pay an annualfee of $50.00 to the City of Cookeville. Onks maintains that leasing orrenting parking spaces on public streets to private individuals for a feeinvalidates the City of Cookeville's parking ordinances, including Section9-508, under the Equal Protection Clause of the Fourteenth Amendment ofthe United States Constitution as well as guarantees provided under theTennessee Constitution.
Any constitutional challenge to the City of Cookeville's authorityto grant special parking privileges pursuant to Sections 9-121 and 9-517would not affect the constitutional validity of Section 9-508, the ordinancewith which Onks is charged with violating. Onks was not ticketed for parkingin a reserved parking space. Onks has never applied for or been deniedspecial parking privileges. Onks does not argue that the City of Cookevillelacks authority to install parking meters. Onks does not argue that theCity of Cookeville is discriminatorily enforcing Section 9-508 by ticketinga certain class of persons who park in metered parking spaces in violationof Section 9-508, including himself, but failing to ticket other persons.Pursuant to its charter authority, the City of Cookeville has by ordinanceadopted a city code which incorporates a section on motor vehicles andtraffic, including provisions on parking. See Ordinance 663, City CodeTitle 9, Chapter 1, Section 9-121; Chapter 5, Sections 9-506 through 508,511, and 517. Ordinance 663, which adopts and enacts a codification andrevision of the Ordinance of the City of Cookeville, specifically providesin Section 7 that "each section of the City Code, including the codes andordinances adopted by reference, are to be separable and severable andthe invalidity of any section, part, paragraph, sentence, phrase or wordand the city code shall not affect the validity of any other part of saidcode, and only any part declared to be invalid by a court of competentjurisdiction shall be deleted therefrom." The principle of elision or ofsevering invalid and inoperative portions of legislation in order to preserveits constitutional validity and to carry out the legislative intent isa familiar one in Tennessee. Citicorp Financial Services Corp. v. Adams,674 S.W.2d 705, 710 (Tenn.1984). The inclusion of a severability clausein a statute has been held to evidence an intent on the part of the GeneralAssembly to have the valid parts of the statute in force if some otherportion of the statute has been declared unconstitutional. Lowe's Companies,Inc. v. Cardwell, 813 S.W.2d 428, 431 (Tenn.1991). These principles oflaw are equally applicable to the the legislation at bar. Therefore, anyalleged unconstitutionality or discriminatory enforcement of Sections 9-121or 9-517 would not, as Onks argues, invalidate Section 9-508.
*2 Accordingly, the judgment of the trial court is affirmed. Costsare assessed to Onks.TOMLIN, P.J. (W.S.), and FARMER, J., concur.
Tenn.App.,1993.
City of Cookeville v. Onks
END OF DOCUMENT
Tenn. Op. Atty. Gen. No. 81-592
Office of the Attorney General
State of Tennessee
*1 Opinion No. 81-592
November 3, 1981RE: Litigation tax
VICTOR H. ASHE
State Senator
KNOXVILLE, TN.
QUESTION
Is T.C.A. § 67-4102 Item J, in imposing a $5.25 litigation taxon parking tickets, constitutional?
OPINION
It is the opinion of this Office that T.C.A. § 67-4102 Item J isin compliance with both the State and federal Constitutions.
ANALYSIS
The 1981 General Assembly, through Public Chapter 488 [T.C.A. §67-4102 Item J], enacted a major revision of the litigation taxes. Thatstatute levies a $5.25 tax in all civil suits and in all criminal casesinstituted in any city court. Because parking tickets and other minor trafficviolations are technically civil in nature, they are subject to this litigationtax. Subsection b(D) of Item J provides that, in actions brought by thegovernment, the litigation tax is to be collected "[u]pon judgment againstthe defendant in any original civil action,... from the defendant...."The upshot of that provision is that a parking ticket may be resolved bypayment of the nominal fine, but if a defendant contests the ticket incourt and loses he then is liable for the $5.25 litigation tax in additionto the fine. Your letter requests examination of this provision in lightof constitutional protections.
The litigation tax does appear burdensome when attached to the contestof a minor traffic violation, since the tax may exceed the fine severaltimes over. In the opinion of this Office, however, that does not invalidatethe litigation tax. The tax is levied on the privilege of using the courtsystem and offsets a portion of the expense of maintaining an elaboratejudiciary. The court system affords relief to citizens on minor as wellas major matters, and the facilities used are not necessarily less in aminor trial where only a small fine is at stake than in a major case. Thus,it makes sense to impose a flat litigation tax without regard to the amountat stake in each case. Of course, litigation taxes could be so high asto burden access to the courts; that, however, is not the case with respectto this small fee. The tax appears steep only because the base fine inminor traffic cases is so low.
Litigation taxes inherently burden access to the judicial system. Theyalways make it easier to resolve matters without resorting to the facilitiesof a court of law. Any burden, however, is of a de minimis nature whenthe flat rate litigation tax is so low. It has never been suggested thattaxation of the privilege of litigating is any less valid and justifiablethan taxation by the state of a myriad of other privileges.
A similar situation came before the court in People v. Gill, 77 Mich.App. 248, 258 N.W.2d 493 (1977). There, costs totaling fifty dollars wereimposed on a fine of ten dollars. The court found no problem inherent inthis, even though the defendant, who had received merely a traffic ticket,would have faced only a fine had he pled guilty. The court did not deemthis to burden the constitutional right to trial, any more than a pleabargain agreement may function in a similar way. Even courts that havefound problems in the raising of a fine or sentence as a result of litigatinga charge have not hesitated to impose reasonable court costs after trialthat obviously would not have applied had there been no trial. See Peopleof City of Pontiac v. Courts, 401 Mich. 57, 257 N.W.2d 101, 103 (1977).
*2 Certainly, the litigation tax under scrutiny here is reasonablein amount and is imposed only upon judgment against a defendant. Therefore,it is the opinion of this Office that the new Item J litigation tax ofT.C.A. § 67-4102 is constitutionally valid.By: Charles L. Lewis
Tenn. Op. Atty. Gen. No. 81-592, 1981 WL 169284 (Tenn.A.G.)
END OF DOCUMENT
==========================
Tenn. Op. Atty. Gen. No. 97-029
Office of the Attorney General
State of Tennessee
*1 Opinion No. 97-029
March 31, 1997Collection of Judgments Due Municipalities
Senator Stephen I. Cohen
Suite 8, Legislative Plaza
Nashville, Tennessee 37243-0030
QUESTIONS
The following questions address different methods to collect outstandingjudgments owed to the City of Memphis.
1. Under current state law, may the Memphis City Court, pursuant tocity ordinance or otherwise, collect outstanding judgments:
A. By restricting the issuance of license plates until the applicanthas paid all outstanding traffic fines?
B. By suspending the driver's license of a traffic violator until heor she has paid the outstanding judgment?
2. Would new legislation to implement any of the following mechanismspresent constitutional problems:
A. Requiring the State to suspend a violator's driver's license untilhe or she pays judgments due to municipalities;
B. Conditioning renewal of a driver's license upon payment of all outstandingjudgments due municipalities; or
C. Enabling the city to use the County Court Clerk's Office to collectoutstanding judgments?
OPINIONS
1. A. Under current state law, the Memphis City Court may not collectoutstanding judgments by restricting the issuance of state license platesuntil the applicant has paid outstanding fines.
B. Under current state law, the Memphis City Court may only suspendan individual's driver's license to collect an unpaid traffic fine if failureto pay the fine violates an order to pay in installments under Tenn. CodeAnn. § 40-20-104. Otherwise, the Memphis City Court is not authorizedto collect outstanding judgments by suspending the driver's license ofa traffic violator until he or she has paid the outstanding fine.
2. Although this Office can provide no definitive opinion on the constitutionalityof any proposed legislation without reviewing the bill itself, legislationimplementing any of these measures should satisfy the following generalcriteria. Because Memphis is a home rule municipality, the General Assemblymay act with respect to it only by laws which are "general in terms andeffect." Thus, any law to implement these measures should be of generalapplicability rather than by private act or by an act of purely local applicability.The legislation must also contain adequate procedural safeguards to satisfydue process requirements. These will include, at a minimum, adequate noticeand a right to challenge the refusal to renew or the suspension in an administrativehearing.
ANALYSIS
This opinion addresses different means the City of Memphis may use toenforce collection of outstanding judgments due the municipality. It isassumed that these fines were imposed by the city court for violation ofmunicipal ordinances. The Memphis City Charter authorizes the city to bringan action in the nature of a civil action for the violation of a city ordinancein the city court, and authorizes the city judge to render judgment forthe city in such actions. Memphis City Charter, § 284. Under §285 of the charter, the city judge may grant an execution to enforce anunpaid judgment against the city. Proceedings to enforce the executionmust be "... in conformity with the provisions of law now applicable toexecutions issued by justices of the peace in civil actions before them."Memphis City Charter, § 285. Section 285 also authorizes the cityjudge to issue a capias to have the defendant brought before the courtif the judgment has not been paid within ten days. The charter does notgrant the city judge the enforcement powers you ask about in your opinionrequest. Although one part of the question refers only to traffic violators,you do not indicate elsewhere whether your question is limited to collectionof fines for traffic violations, or would be imposed to collect any unpaidjudgment owing the city, whether or not the judgment was assessed for atraffic violation.
*2 Memphis is a home rule municipality. Under Tenn. Code Ann. §6-54- 305, a home rule municipality is authorized to set maximum penaltiesof thirty days imprisonment and/or fines up to five hundred dollars forviolation of home rule municipal ordinances. Under Tenn. Code Ann. §6-54-303, a municipal court may issue execution on fines and costs thatremain unpaid for thirty days after the judge has entered the judgment.In addition, Tenn. Code Ann. § 55- 10-307(a) provides:
Any incorporated municipality may by ordinance adopt, by reference,any of the appropriate provisions of §§ 55-8-101 -- 55-8-180,55-10-101 -- 55- 10-310, 55-50-301, 55-50-302, 55-50-304, 55-50-305, 55-50-311,and 55-50- 312, and may by ordinance provide additional regulations forthe operation of vehicles within the municipality, which shall not be inconflict with the provisions of such sections. All fines, penalties, andforfeitures of bonds imposed or collected under the terms of §§55-50-311 and 55-50-312, shall be paid over to the appropriate state agencyas provided in § 55-50- 604.
Under this statute, municipalities may adopt by ordinance various statetraffic provisions. If a municipality adopts any of these provisions byordinance, it may enforce them as municipal violations within the territoriallimits of the municipality and may "enforce such additional ordinancesfor the regulation of the operation of vehicles as it deems proper." Tenn.Code Ann. § 55-10-308.
Your request includes various proposals involving issuance or suspensionof motor vehicle registration or a driver's license. Each of these areasis governed by an extensive state statutory scheme.
1. Authority of the Memphis City Court
A. Authority to restrict issuance of state license tags
You ask first whether, under current law, the Memphis City Court couldinstruct the County Clerk not to issue license plates to anyone who hasan outstanding unpaid judgment owing the city. No statute expressly providessuch authority. As noted above, Tenn. Code Ann. § 6-54-303 authorizesa municipal court to issue execution on fines and costs that remain unpaidfor thirty days after the judge has entered the judgment. The clerk mayissue execution from the court in the same manner and methods as prescribedin chapters one through three of Title 26. These statutes prescribe themethod of issuance and authorize garnishment or levy of execution againstthe judgment debtor's property. None of these statutes includes the typeof measure you propose. Further, such a measure would be inconsistent withstate law governing the issuance of license plates.
Registration of motor vehicles is governed by Tenn. Code Ann. §§55-4-101, et seq. The Division of Motor Vehicles, which handles registration,was transferred from the Department of Revenue to the Department of Safetyby Executive Order No. 37 (June 29, 1990). Application for registrationis to be made as prescribed under the statute to the county clerk of thecounty of the owner's residence or of a county where the vehicle is basedor to be operated. Tenn. Code Ann. § 55-4-101(c). Under subsection(d) of this statute, once the county clerk finds that the title or applicationis in order and fees required under the motor vehicle registration lawshave been tendered, the clerk is required to forward the application tothe State. The statute provides no discretion to the county clerk to refuseto forward an application that is in order and accompanied by the requiredfees, or to refuse to release to the applicant registration materials theclerk has received from the State. A city ordinance or a city court orderprohibiting the clerk from forwarding an application or issuing a licenseplate because the applicant has not paid an outstanding city judgment wouldbe inconsistent with the statutory scheme governing motor vehicle registration,and thus, would be invalid under existing state law. See Op. Tenn. Atty.Gen. 88-167 (September 9, 1988) (the Metropolitan Government of Nashvilleand Davidson County is not authorized to pass an ordinance restrictingthe issuance of a state license plate because an applicant has outstandingfines or warrants for parking or traffic violations).
*3 B. Authority to suspend license for non-payment of judgment
Your next question is whether a city court may suspend the driver'slicense of a traffic violator until such individual has paid the judgment.This question, therefore, appears to be limited to collection of judgmentsbased on traffic violations. The analysis of this question is similar tothe analysis above. One statute expressly authorizes a court to suspenda defendant's license for nonpayment of a fine in a limited circumstance.This statute appears in Tenn. Code Ann. §§ 40-24-101, et seq.,relating to payment of criminal fines. Under Tenn. Code Ann. § 40-24-101,any court, including a municipal court for a violation of a municipal ordinance,may direct a fine to be paid at different times and in different mannerslisted in the statute, including in installments. Tenn. Code Ann. §40-24-104 provides:
(a) If the defendant fails to pay the fine as directed, or if he isunable to pay the fine and so represents upon application to the court,the court, after inquiring into and making such further investigation,if any, which it may deem necessary with regard to the defendant's financialand family situation and the reasons for nonpayment of the fine, includingwhether such nonpayment was contumacious or was due to indigency, may enterany order which it could have entered under § 40-24-101, or may reducethe fine to an amount which the defendant is able to pay, or may directthat the defendant be imprisoned until the fine, or any portion of it,remaining unpaid or remaining undischarged after a pro rata credit forany time which may already have been served in lieu of payments, is paid.The court shall determine and specify, in the light of defendant's situationand means and of his conduct with regard to the nonpayment of the fine,the period of any imprisonment in default of payment of the fine withinthe limits of the penalties for a Class C misdemeanor.
(b) Whenever a court orders a defendant to pay a fine, imposed as aresult of a traffic violation, in installment payments, the court shallrevoke the defendant's privilege to operate a motor vehicle in this stateupon the failure of the defendant to comply with the order of the court.If the defendant's privilege to operate a motor vehicle has been revokedfor the failure to comply with such court order, the privilege shall remainso revoked until the total amount of the fine imposed is paid.
Tenn. Code Ann. § 40-24-104(1990) (emphasis added). Thus, in thecircumstances described above, the city court may suspend an individual'sdriver's license.
The authority to suspend an individual's license for failure to paya fine in other circumstances must be inferred from the general statutoryscheme governing issuance and suspension of driver's licenses. All magistratesand judges are generally required to forward a report concerning convictionsor forfeitures of bail for traffic violations to the Department of Safetywithin thirty days. Tenn. Code Ann. § 55-10-306(b)(1). Issuance ofdriver's licenses is governed by Tenn. Code Ann. §§ 55-50-101,et seq. The statutory scheme is administered by the Tennessee Departmentof Safety. Tenn. Code Ann. § 55-20-102. Tenn. Code Ann. §§55-50-501, et seq., provide for suspension and revocation of driver's licenses.Certain state statutes include a mandatory driver's license suspensionupon conviction of an offense, such as driving under the influence. UnderTenn. Code Ann. § 55-50-503, the court in which any such convictionis had must require the convicted offender to surrender his or her driver'slicense, which the court must then forward to the Department of Safety.The statute expressly provides that a court may recommend to the Departmentof Safety the suspension of a driver's license of a person convicted insuch court of traffic violations. This statute provides:
*4 (b) Every court having jurisdiction over offenses committed underthis chapter, or any other statute of this state or municipal ordinanceof any city or town regulating the operation of motor vehicles on highways,shall forward to the department a record of the conviction of any personin the court for a violation of any of these laws and may recommend thesuspension of the operator's or chauffeur's license of the person so convicted.
Tenn. Code Ann. § 55-50-503(b) (emphasis added). Finally, theDepartment of Safety is authorized to suspend an individual's driver'slicense for a variety of reasons, including failure to pay certain trafficfines. The statute provides in relevant part:
The department is hereby authorized to suspend the license of an operatoror chauffeur upon a showing by its records or other sufficient evidencethat the licensee:
****
(8) Has been finally convicted of any driving offense in any court andhas not paid or secured any fine or costs imposed for that offense; (9)Has failed to appear in any court to answer or to satisfy any traffic citationissued for violating any statute regulating traffic. No license shall besuspended pursuant to this subdivision for failure to appear in court onor failure to pay a parking ticket or citation or for a violation of §55-9- 603. Prior to suspending the license of any person as authorizedin this subsection, the department shall notify the licensee in writingof the proposed suspension and, upon the licensee's request, shall affordthe licensee an opportunity for a hearing to show that there is an errorin the records received by the department; provided, that such a requestis made within twenty (20) days following the notification of proposedsuspension or cancellation. Failure to make such a request within the timespecified shall without exception constitute a waiver of such right[.]
Tenn. Code Ann. § 55-50-502(a)(8) & (9)(Supp. 1996). At theend of the ten enumerated reasons authorizing the Department of Safetyto suspend a license, the following proviso appears:
provided that no municipal law enforcement officer is authorized toseize the license of an operator or chauffeur for a traffic offense inviolation of a municipal ordinance or a traffic offense as provided inchapter 8 of this title.
The primary rule in statutory construction is to give effect to thelegislative intent. Mercy v. Olsen, 672 S.W.2d 196 (Tenn. 1984). The meaningof the statute is to be determined not from special words in a single sentenceor section but from the statute taken as a whole and viewing the legislationin the light of its general purpose. State ex rel. Bastnagel v. City ofMemphis, 224 Tenn. 514, 457 S.W.2d 532 (1970). Therefore, in construingall these statutes together, this Office concludes that the Memphis CityCourt is not authorized to suspend the driver's license of a traffic offenderfor failure to pay the traffic fine, unless the failure to pay violatesa prior order to pay in installments under Tenn. Code Ann. § 40-20-104.Except in the circumstances covered by that statute, the court must forwarda record of the traffic conviction to the Department of Safety and mayrecommend that the Commissioner of Safety revoke such individual's license.The Commissioner may suspend the traffic offender's license either forfailure to pay the fine or for the traffic offense itself, all in accordancewith Tenn. Code Ann. § 55- 50-502.
*5 2. Statutory Changes
Your next question concerns possible methods for enforcing paymentof outstanding judgments owing the city. These changes would be implementedby new legislation. Of course, this Office can provide no definitive opinionon the constitutionality of any proposed legislation without reviewingthe bill itself. The following discussion addresses general constitutionalissues that proposed legislation to implement the methods you contemplatewould involve.
As discussed above, Memphis is a home rule municipality. Under ArticleXI, Section 9 of the Tennessee Constitution, the General Assembly may actwith respect to a home rule municipality only by laws that are "generalin terms and effect." Thus, any legislation to implement these measuresshould be of general applicability rather than by private act or by anact of purely local applicability.
A. Requiring the State to suspend a violator's driver's license untilhe or she pays judgments due to municipalities
As discussed above, state law currently authorizes, but does not require,the Department of Safety to suspend an individual's driver's license forconviction of traffic violations or failure to pay traffic fines. You askwhether legislation could require suspension of a driver's license fornonpayment of a judgment due a municipality. It is not clear whether thismeasure would be used to collect outstanding judgments based only on trafficviolations, or would include any judgment, whether or not based on an offenserelated to the operation or ownership of a car. It is a fundamental conceptof law that a driver's license, after being first issued, becomes a propertyright that cannot be revoked or suspended without the procedural due processthat is required by the Fourteenth Amendment. Mackey v. Montrym, 443 U.S.1, 10(1979). The Fourteenth Amendment to the United States Constitutionprovides that no State shall "deprive any person of life, liberty, or property,without due process of law . . .." Likewise, Article I, Section 8 of theTennessee Constitution states:
That no man shall be taken or imprisoned, or disseized of his freehold,liberties or privileges, or outlawed or exiled, or in any manner destroyedor deprived of his life, liberty or property, but by the judgment of hispeers or the law of the land.
"[D]ue process is flexible and calls for such procedural protectionsas the particular situation demands." Morrissey v. Brewer, 408 U.S. 471,481 (1972). To determine what standard is used, courts have developed abalancing test to be applied in connection with the protected interest.In Mackey, the Supreme Court considered the following factors:
First, the private interest that will be affected by the official action;second, the risk of an erroneous deprivation of such interest through theprocedures used, and the probable value, if any, of additional or substituteprocedural safeguards; and finally the Government's interest, includingthe function involved and the fiscal and administrative burdens that theadditional or substitute procedural requirement would entail.
*6 443 U.S. at 10, quoting Matthews v. Eldridge, 424 U.S. 319, 335(1976). This Office has discussed the procedural safeguards that mightbe required in a statute authorizing a summary suspension and subsequentrevocation of the driver's license of a DUI violator who refuses to takea blood test. Op. Tenn. Atty. Gen. 96-048 (March 14, 1996). In that opinion,this Office noted that the governmental interest involved in such suspension-- protecting the public from the risk of drunk drivers -- was an importantfactor in concluding that the summary suspension satisfied due process.Suspending an individual's driver's license until he or she has paid anoutstanding judgment, whether or not such judgment is related to the driver'suse of a car, by contrast, would not be directly related to protectingthe public safety. The only available case discussing the constitutionalityof a statutory scheme allowing suspension of an individual's license fornonpayment of a non-traffic fine is Milwaukee v. Kilgore, 193 Wis.2d 168,532 N.W.2d 690 (1995). In that case, the Wisconsin Supreme Court uphelda statute authorizing municipal courts to suspend an individual's driver'slicense until he or she paid an outstanding fine against challenges basedon several constitutional provisions. The Court concluded that the statuteprovided adequate procedural protections before the suspension could beimposed. The Court noted:
... Ch. 800 [the challenged statute] suspensions ensure proceduraldue process because the sanction is not imposed unless all of the followingoccur: (1) the defendant is notified that failure to pay the fine within60 days after payment is ordered may result in suspension; (2) the suspensionis rescinded and the operating privilege reinstated once the fine is paid;(3) the suspension will not be enforced against any individual who is ableto demonstrate an inability, for good cause or indigence, to pay the fine;and (4) the suspension is limited in duration not to exceed 5 years.
532 N.W.2d at 697 (citation omitted). It therefore appears that a statuteproviding such safeguards could be upheld against a due process challenge.
A statute authorizing suspension of a driver's license for nonpaymentof a judgment based on an offense that is not traffic-related could bechallenged on the grounds that it violates the "excessive penalty" clauseof the Eighth Amendment to the United States Constitution prohibiting excessivepenalties. The United States Supreme Court has never made this clause ofthe Eighth Amendment applicable to the states. See, e.g., Browning-FerrisIndustries v. Kelco Disposal, Inc., 492 U.S. 257, 276 n. 22 (1989). Nevertheless,the Wisconsin Supreme Court in Kilgore considered the argument that itsstatutory scheme violated the this clause because there was no relationship,rational or otherwise, between the offense on which the judgment was basedand the suspension of the driver's license. The Wisconsin Supreme Courtrejected this challenge. The Court concluded that allowing a municipalcourt to suspend a driver's license was rationally related to the State'slegitimate interest in securing compliance with orders issued by its courts.
*7 B. Conditioning renewal of a driver's license upon payment of alloutstanding judgments due municipalities
Next, you ask whether legislation could prevent an individual fromrenewing his or her driver's license until he or she has paid all outstandingjudgments. Under Tenn. Code Ann. § 55-50-503(b), any person convictedof any offense requiring mandatory revocation of driving privileges mustpresent certification from the court to the Department of Safety eitherthat the fines and costs were paid to the court, or that they were waivedas a result of the person being found to be indigent by the court. Whilean individual has no federally protected right to be issued a driver'slicense, federal courts have found that an applicant for a driver's licensehas a constitutionally protected right to procedural due process in thestate application procedures under which the determination of whether toissue such a license will be made. Raper v. Lucey, 488 F.2d 748 (1st Cir.1973); Freitag v. Carter, 489 F.2d 1377 (7th Cir. 1973). Thus, any statutepreventing renewal of a driver's license because the individual has outstandingjudgments owing municipalities should, at a minimum, give the driver'slicense applicant notice of the reason for the refusal to renew the licenseand an opportunity to appeal the refusal.
C. Enabling the City to use the County Court Clerk's Office to collectoutstanding judgments
Finally, you ask whether legislation could enable the City of Memphisto use the County Court Clerk's Office to collect outstanding judgmentowing to the city. Your request does not indicate what role the Clerk'sOffice would play. Presumably, you contemplate restricting the issuanceof a car registration or renewal until the applicant has paid outstandingjudgments owing the city. The due process requirements applicable to theissuance of a driver's license discussed above would also apply to legislationimplementing this collection method.John Knox Walkup
Attorney General and ReporterMichael E. Moore
Solicitor GeneralAnn Louise Vix
Senior Counsel
Tenn. Op. Atty. Gen. No. 97-029, 1997 WL 188465 (Tenn.A.G.)
END OF DOCUMENT
==============================
TN ST § 55-50-502
55-50-502 Suspension of licenses -- Hearings -- Period of suspensionor revocation -- Surrender of license -- Restricted license -- Operatingunder license of another jurisdiction prohibited -
8TNS
Approx. 5 pagesT.C.A. § 55-50-502
This document has been updated. Use KEYCITE.
TENNESSEE CODE ANNOTATED
TITLE 55 MOTOR AND OTHER VEHICLES
CHAPTER 50 DRIVER LICENSES
Part 5-- Suspension and Revocation
Copyright © 1955-1999 by The State of Tennessee. All rights reserved.
Current through End of 1999 Reg. Sess.55-50-502 Suspension of licenses -- Hearings -- Period of suspensionor revocation -- Surrender of license -- Restricted license -- Operatingunder license of another jurisdiction prohibited -- Appeal.
(a) The department is hereby authorized to suspend the license of anoperator or chauffeur upon a showing by its records or other sufficientevidence that the licensee:
(1) Has committed an offense for which mandatory revocation of licenseis required upon conviction; provided, that in the event of a convictionresulting from the offense, the time of mandatory revocation shall be countedfrom the date upon which the driver license was received by the departmentor the circuit court clerk;
(2) Has contributed as a driver in any accident resulting in the deathor personal injury of another or serious property damage;
(3) Has been convicted with such frequency of serious offenses againsttraffic regulations governing the movement of vehicles as to indicate adisrespect for traffic laws and a disregard for the safety of other personson the highways. For purposes of this subdivision, no conviction of exceedingthe speed limit in a state other than Tennessee shall be considered bythe department unless such conviction was for exceeding the lawful speedin such other state by more than five miles per hour (5 mph). This fivemiles per hour (5 mph) allowance shall not apply in marked school zones;
(4) Is an habitually reckless or negligent driver of a motor vehicle;
(5) Is incompetent to drive a motor vehicle;
(6) Has permitted an unlawful or fraudulent use of such license;
(7) Has committed an offense in another state which if committed inthis state would be grounds for suspension or revocation;
(8) Has been finally convicted of any driving offense in any courtand has not paid or secured any fine or costs imposed for that offense;
(9) Has failed to appear in any court to answer or to satisfy any trafficcitation issued for violating any statute regulating traffic. No licenseshall be suspended pursuant to this subdivision for failure to appear incourt on or failure to pay a parking ticket or citation or for a violationof § 55-9- 603. Any request from the court for suspension under thissubdivision must be submitted to the department of safety within six (6)months of the violation date. No suspension action shall be taken by thedepartment unless such request is made within six (6) months of the violationdate. Prior to suspending the license of any person as authorized in thissubsection, the department shall notify the licensee in writing of theproposed suspension and, upon the licensee's request, shall afford thelicensee an opportunity for a hearing to show that there is an error inthe records received by the department; provided, that such request ismade within thirty (30) days following the notification of proposed suspensionor cancellation. Failure to make such request within the time specifiedshall without exception constitute a waiver of such right; or
(10) Is under eighteen (18) years of age and has withdrawn either voluntarilyor involuntarily or has failed to maintain satisfactory academic progressfrom a secondary school as provided in § 49-6-3017; provided thatno municipal law enforcement officer is authorized to seize the licenseof an operator or chauffeur for a traffic offense in violation of a municipalordinance or a traffic offense as provided in chapter 8 of this title.
(b)(1) The department is hereby authorized to cancel any operator'sor chauffeur's license upon determining that the licensee was not entitledto the issuance thereof hereunder, or that the licensee failed to givethe required or correct information in the application or committed anyfraud in making such application.
(2) Upon such cancellation, the licensee must surrender the licenseso cancelled to the department.
(c)(1) The department, upon suspending or revoking a license, shallrequire that such license be surrendered to and be retained by the department.Prior to the reissuance of any license revoked because of a convictionof driving while under the influence of liquor or an intoxicating drug,after a second or subsequent conviction, the department shall require theowner to submit evidence that the owner has completed a program of alcoholor drug abuse education, or has completed treatment by a physician boardcertified or eligible in psychiatry or a licensed psychologist certifiedwith competence in clinical psychology; or, at a facility licensed by thedepartment of mental health and mental retardation to provide such treatment.Certification of the psychiatrist or clinical psychologist or facilitylicensed by the department of mental health and mental retardation underthis section is not to be construed as a prediction of future behaviorbut merely certification of completion of the program.
(2) When such examination, as required by this subsection, is administeredby a state supported mental health facility, such facility and medicaldoctors or doctors of psychology employed by such facility who administersuch examinations within the course and scope of such doctor's authorityunder the statute, shall be immune from tort liability for the proper disseminationof any report or findings to the department of safety which results fromsuch examination; provided, that this immunity shall not extend to anyother person, institution, or other member of the private sector, not employedor attached to a state supported mental health facility.
(3) The trial judge of the court wherein the trial for the offenseof operating a vehicle under the influence of alcohol or an intoxicatingdrug is pending may order the issuance of a restricted license allowingthe person so arrested to operate a motor vehicle for the purpose of goingto and from and working at such person's regular place of employment. ATennessee resident, whose operator's license has been suspended becauseof an arrest in another jurisdiction on a charge of operating a motor vehiclewhile under the influence of an intoxicating liquor or a narcotic drug,may apply to a judge of any court of the county of such person's residencehaving jurisdiction to try charges for a restricted motor vehicle operator'slicense. The judge may, in the judge's discretion, order the issuance ofa restricted motor vehicle operator's license allowing the person so arrestedto operate a motor vehicle for the purpose of going to and from and workingat such person's regular place of employment, if a copy of the arrest warrantcertified by the court where the case will be tried accompanies the application.Such order shall state with all practicable specificity the necessary timesand places of permissible operation of a motor vehicle. The person so arrestedmay obtain a certified copy of the order and within ten (10) days afterit is issued present it, together with an application fee of sixty-fivedollars ($65.00), to the department, which shall forthwith issue a restrictedlicense embodying the limitations imposed in the order. After proper applicationand until such time as the restricted license is issued, a certified copyof the order may serve in lieu of a motor vehicle operator's license. Anyrestricted license issued under the provisions of this section shall besubject to renewal in the same manner as other motor vehicle operator'slicenses.
(4) Where a nonresident whose license has been suspended or revokedby any other state subsequently becomes a bona fide resident of this state,and where the person has been granted a restricted license by the otherstate if such triggering offense would under the laws of Tennessee providefor the issuance of a restricted driver license upon petition to a judgeof the court of general sessions, or its equivalent, for the county whereinthe person resides, the judge may, in the judge's discretion, order theissuance of a restricted motor vehicle operator's license allowing theperson to operate a motor vehicle for the purpose of going to and fromand working at such person's regular place of employment during the mandatoryrevocation/suspension period. Such orders shall state with all practicablespecificity the necessary times and places of permissible operation ofa motor vehicle. The person may obtain a certified copy of the order andwithin thirty (30) days after it is issued present it, together with anapplication fee of sixty-five dollars ($65.00), to the department, whichshall forthwith issue a restricted license embodying the limitations imposedin the order. After proper application and until such time as the restrictedlicense is issued, a certified copy of the order may serve in lieu of amotor vehicle operator's license. Any restricted license issued under theprovisions of this subdivision shall be subject to renewal in the samemanner as the motor vehicle operator's license.
(d)(1) The provisions of this subsection apply only in counties havinga population of not less than eight hundred twenty-five thousand (825,000)nor more than eight hundred thirty thousand (830,000) according to the1990 federal census or any subsequent federal census.
(2) A person whose license has been suspended, pursuant to the provisionsof subdivision (a)(8) or (9), subject to the approval of the court, maypay any local fines or costs, arising from such convictions or failureto appear in any court, by establishing a payment plan with the local courtor the court clerk of the jurisdiction.
(3) The department is hereby authorized to reinstate a person's drivingprivileges when such person provides the department with certificationfrom the local court, or court clerk of the jurisdiction that such personhas entered into a payment plan with the local court or the court clerkof the jurisdiction and has satisfied all other provisions of law relatingto the issuance and restoration of a driver license.
(4) The department shall, upon notice of such person's failure to complywith any payment plan established pursuant to this subsection, suspendthe license of such person. Persons who default under this subsection shallnot be eligible for any future payment plans under this subsection. Thedepartment shall notify the person in writing of the proposed suspension,and upon request of such person within thirty (30) days of such notification,shall provide the person an opportunity for a hearing to show that suchperson has, in fact, complied with the local court's or the court clerk'spayment plan. Failure to make such request within thirty (30) days of receiptof notification shall, without exception, constitute a waiver of such right.
(5) Any person who has defaulted on a pay plan to pay fines and costsfor suspension actions taken under subdivisions (a)(8) or (9), shall notbe eligible to participate in a payment plan, nor shall the Departmentof Safety have the authority to accept a payment plan as a condition precedentto the restoration of driving privileges.
(6) Any county which participates in the payment plan authorized bythe provisions of this subsection shall pay to the state any expense requiredto be paid for state implementation of this subsection. Such payment shallbe divided pro rata among the counties to which this subsection applies.Such payment shall be made prior to the implementation by the county ofthe provisions of this subsection.
(e)(1) Any resident or nonresident whose operator's or chauffeur'slicense or right or privilege to operate a motor vehicle in this statehas been suspended or revoked as provided in this chapter shall not operatea motor vehicle in this state under a license, permit, or registrationcertificate issued by any other jurisdiction or otherwise during such suspensionor after such revocation until a new license is obtained when and as permittedunder this chapter.
(2) The privilege of driving a motor vehicle on the highways of thisstate given to a nonresident hereunder is subject to suspension or revocationby the department in like manner and for like cause as an operator's orchauffeur's license issued hereunder may be suspended or revoked.
(3) The department is further authorized, upon receiving a record ofthe conviction in this state of a nonresident driver of a motor vehicleof any offense under the motor vehicle laws of this state, to forward acertified copy of such record to the motor vehicle administrator in thestate wherein the person so convicted is a resident.
(4) The department is authorized to suspend or revoke the license ofany resident of this state or the privilege of a nonresident to drive amotor vehicle in this state upon receiving notice of the conviction ofsuch person in another state of an offense therein which, if committedin this state, would be grounds for the suspension or revocation of thelicense of an operator or chauffeur.
(f)(1) The department shall not suspend a driver license or privilegeto drive a motor vehicle on the public highways for a period of more thansix (6) months for a first offense nor more than one (1) year for a subsequentoffense, except as permitted under § 55-50-504, unless in any casean order of a court provides for a longer period of suspension. At theend of the period for which a license has been suspended, the departmentis authorized, in its discretion, to require a reexamination of the licenseeas a prerequisite to the reissuance of such license.
(2) Any person whose license is suspended for driving under the influenceof drugs or intoxicants, or for refusal to submit to a blood test under§ 55- 10-406, shall have the period of suspension computed from thetime that such person's driver license was actually taken from such person'spossession, and the period of license suspension shall begin to run fromthat point until the license is returned.
(3) Any person whose license or privilege to drive a motor vehicleon the public highways has been revoked shall not be entitled to have suchlicense or privilege renewed or restored unless the revocation was fora cause which has been removed, except that after the expiration of one(1) year or the period of suspension prescribed by a court from the dateon which the revoked license was surrendered to and received by the department,such person may make application for a new license as provided by law,but the department shall not issue a new license unless and until it issatisfied after investigation of the character, habits and driving abilityof such person that it will be safe to grant the privilege of driving amotor vehicle on the public highways. No license which has been revoked,on account of the conviction of the licensee for murder or manslaughterresulting from the operation of a motor vehicle, shall be reissued exceptas provided in § 55-50-501(a)(1).
(4) Where the revocation involved is the first revocation of the licenseor privilege of such person, such application for a new license may bemade after the expiration of six (6) months from the date on which therevoked license was surrendered and received by the department. No licensewhich has been revoked on account of the conviction of the licensee formurder or manslaughter resulting from the operation of a motor vehicleshall be reissued except as provided in § 55-50-501(a)(1).
(g) When considering the suspension of a driver license, the departmentmay take into account offenses committed by that driver outside of Tennesseeand reported to the department only if such offenses would, under the lawsof Tennessee, be considered grounds for suspension in this state. If theoffenses would be grounds for suspension in the state of conviction, butnot in Tennessee they shall be disregarded by the department.
(h) Drivers of commercial motor vehicles shall have their licensessuspended for violations and for the length of time specified in §55-50-405.
(i)(1) The department shall establish a method by which any personwho makes application for or who holds a commercial driver license mayelect an alternate address to which any suspension notices shall be mailed.
(2) At least two (2) times per month during two (2) different weeksof such month, the department shall make available for public inspectiona list of persons whose commercial driver license has been suspended.
[Acts 1937, ch. 90, § 12; impl. am. Acts 1939, ch. 205, §§2, 3; Acts 1939, ch. 205, § 6; 1949, ch. 65, § 1; C. Supp. 1950,§ 2715.20 (Williams, § 2715.25); Acts 1955, ch. 114, §§6-9; 1957, ch. 241, §§ 2, 3; 1971, ch. 135, § 1; 1971, ch.243, § 1; 1973, ch. 64, § 1; 1973, ch. 319, § 1; 1975, ch.238, § 1; 1976, ch. 450, § 1; 1976, ch. 570, § 1; 1976,ch. 607, § 1; 1978, ch. 660, §§ 2, 3; T.C.A. (orig. ed.),§ 59-713; Acts 1980, ch. 547, § 1; 1980, ch. 685, §§1, 2; 1980, ch. 817, § 3; 1982, ch. 745, § 1; 1984, ch. 861,§§ 1, 2; 1986, ch. 738, § 3; 1986, ch. 842, §§3, 4; 1988, ch. 584, § 11; 1988, ch. 664, § 1; T.C.A., §§55-7-113, 55-7-502; Acts 1989, ch. 156, § 1; 1990, ch. 819, §4; 1991, ch. 296, § 1; 1995, ch. 156, § 1; 1996, ch. 763, §3; 1997, ch. 438, §§ 1, 2; 1998, ch. 682, § 6; 1998, ch.900, § 1; 1999, ch. 140, §§ 1-3.]
HISTORICAL NOTES
Compiler's Notes. As to licenses issued on or after July 1, 1989, thedistinction between "operator's" and "chauffeur's" licenses no longer exists,and all driver licenses are issued in one of the classes specified in §55- 50-102. See also § 55-50-305.
Acts 1999, ch. 140, § 4 provided that subdivision (d) shall applyonly to citations issued for such offenses pursuant to subdivisions (a)(8)or (9) prior to July 1, 1999.Amendments. The 1999 amendment added present (d) and redesignated former(d)- (h) as present (e)-(i).
Effective Dates. Acts 1999, ch. 140, § 4. July 1, 1999.
REFERENCES
Cross-References. Administrative appeal from driver's license revocationhearings, § 4-5-321.
Appointment of hearing officers to conduct contested case hearings,§ 4-3- 2005.
Juvenile traffic offenders, § 37-1-146.
Motor vehicles, Juvenile Offender Act, ch. 10, part 7 of this title.
Promulgation of rules and regulations by commissioner of safety, §55-50- 202.
Restricted motor vehicle licenses, juveniles, § 55-10-705.
Supplemental penalties, juveniles, § 55-10-707.
Suspension for prohibited use of off-road vehicle, § 55-10-206.
Suspension or revocation of all registrations when licenses suspendedor revoked under financial responsibility law, § 55-12-114.Section to Section References. This section is referred to in §§55-10- 403, 55-10-411, 55-10-707, 55-12-114, 55-12-129, 55-50-321, 55-50-339,55-50-511.
Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, §28.Law Reviews. The Tennessee Court System -- Circuit Court (Frederic S.Le Clercq), 8 Mem. St. U.L. Rev. 241.
ANNOTATIONS
Attorney General Opinions. Effective date of revocation of driver'slicense, OAG 98-0125 (7/20/98).
Cited: State v. Bryant, 678 S.W.2d 480 (Tenn. Crim. App. 1984).
Notes to Decisions.
ANALYSIS
1. Constitutionality.
2. In general.
3. Written notice not required.
4. Revocation under financial responsibility law.1. Constitutionality.
A proceeding to have the defendant declared to be an habitual offenderand to have his driving privileges revoked does not subject him to doublejeopardy. State v. Conley, 639 S.W.2d 435 (Tenn. 1982).2. In General.
The revocation of all driving privileges of one declared to be an habitualoffender is nothing more than the deprivation of a privilege, is "remedialin nature," and is not intended to have the effect of imposing "punishment"in order to vindicate public justice. State v. Conley, 639 S.W.2d 435 (Tenn.1982).3. Written Notice Not Required.
Official written notice of temporary suspension of license was notrequired where highway officer took license away from defendant on arrestfor transporting liquor. Ratliff v. State, 182 Tenn. 177, 184 S.W.2d 572(1944).4. Revocation Under Financial Responsibility Law.
An order of the commissioner of safety revoking a driver's licenseand automobile registration under former provisions of financial responsibilitylaw was reviewable only by a petition addressed to chancery court of DavidsonCounty in accordance with former § 59-1202 and not by certiorari inthe county of residence under the provisions of this section. Roney v.Luttrell, 200 Tenn. 403, 292 S.W.2d 411 (1956) (decided under prior law).
REFERENCES
Collateral References. Automobiles: necessity or emergency as defensein prosecution for driving without operator's license or while licenseis suspended. 61 A.L.R.3d 1041; 7 A.L.R.5th 73.
Civil rights and liabilities as affected by failure to comply withlicense or registration regulations. 16 A.L.R. 1108; 35 A.L.R. 62; 38 A.L.R.1038; 43 A.L.R. 1153; 54 A.L.R. 374; 58 A.L.R. 532; 61 A.L.R. 1190; 78A.L.R. 1028; 87 A.L.R. 1469; 111 A.L.R. 1258; 163 A.L.R. 1375.
Conviction or acquittal in previous criminal case as bar to revocationor suspension of driver's license on same factual charges. 96 A.L.R.2d612.
Conviction, what amounts to, within statute making conviction groundfor refusing or canceling license. 113 A.L.R. 1179.
Denial, suspension, or cancellation of driver's license because ofphysical disease or defect. 38 A.L.R.3d 452.
Necessity of notice and hearing before revocation or suspension ofmotor vehicle driver's license. 60 A.L.R.3d 361.
Nonresident, discrimination against. 61 A.L.R. 347; 112 A.L.R. 63.Nonresident operators' or drivers' licenses, statute with respect to. 82A.L.R. 1392.
Regulations establishing a "point system" as regards suspension orrevocation of license of operator of motor vehicle. 5 A.L.R.3d 690.
Second offense, in operating vehicle or other instrumentality withoutproper license or permit, as applied to several vehicles or instrumentalitiesowned or operated by same person. 158 A.L.R. 772.
Statute providing for judicial review of administrative order revokingor suspending automobile driver's license as providing for trial de novo.97 A.L.R.2d 1367.
Sufficiency of notice and hearing before revocation or suspension ofmotor vehicle driver's license. 60 A.L.R.3d 427.
Validity, construction, and application of statute or ordinance relatingto revocation of license. 71 A.L.R. 616; 108 A.L.R. 1162; 125 A.L.R. 1459.
Validity of motor vehicle financial responsibility act. 35 A.L.R.2d1011; 2 A.L.R.5th 725.
Validity and application of statute or regulation authorizing revocationor suspension of driver's license for reason unrelated to use of, or abilityto operate, motor vehicle. 18 A.L.R.5th 542.T.C.A. § 55-50-502
TN ST § 55-50-502
END OF DOCUMENT
=============================
Rhodes v. Pioneer Parking Lot, Inc.
501 S.W.2d 569.
Tenn. 1973.
Nov. 19, 1973. (Approx. 3 pages)Supreme Court of Tennessee.
Bobby Joe RHODES, Plaintiff-Appellee,
v.
PIONEER PARKING LOT, INC., Defendant-Appellant.
Nov. 19, 1973.Action against owner of unattended 'park and lock' lot on account oftheft of plaintiff's automobile. The Circuit Court, Hamilton County, JamesF. Morgan, J., rendered judgment for plaintiff and defendant appealed.The Supreme Court, W. M. Leech, Special Justice, held that there was nobailment, and owner of lot was not liable, where automobile was never deliveredinto lot owner's possession and control since plaintiff deposited fee onentering, receiving from machine a ticket disclaiming bailment relation,chose a parking space and locked automobile, with no contact with any oflot owner's employees, although ticket stated that cars parked withoutvalidated tickets would be towed away.
Judgment reversed and case dismissed.
West Headnotes
[1] KeyCite this headnote
50 Bailment
50k1 k. Nature and Elements in General.Bailment is delivery of personalty to another for particular purposeor on mere deposit, on contract express or implied, that after purposehas been fulfilled property should be returned to person who deliveredit or otherwise dealt with according to his direction or kept until hereclaims it.
[2] KeyCite this headnote
50 Bailment
50k5 k. Delivery and Acceptance.Creation of bailment in absence of express contract requires that possessionand control pass from bailor to bailee; there must be full transfer, actualor constructive, so as to exclude property from possession of owner andall other persons and give bailee sole custody and control for time being.
[3] KeyCite this headnote
50 Bailment
50k5 k. Delivery and Acceptance.Bailment is created when operator of parking lot or garage has knowinglyand voluntarily assumed control, possession, or custody of vehicle butif he has not done so there may be mere license to park or lease of parkingspace.
[4] KeyCite this headnote
48A Automobiles
48AVIII Garage Keepers, Repairmen, Auto Liverymen, and FillingStations
48Ak369 Storage of Vehicles; Parking Facilities
48Ak372 Injury to or Loss of Vehicleor Contents
48Ak372(1) k. In General;Nature of Relation.50 Bailment
50k5 k. Delivery and Acceptance.There was no bailment, and owner of unattended "park and lock" lot wasnot liable for theft, where automobile was never delivered into lot owner'spossession and control since plaintiff deposited fee on entering, receivingfrom machine a ticket disclaiming bailment relation, chose a parking spaceand locked automobile, with no contact with any of lot owner's employees,although ticket stated that cars parked without validated tickets wouldbe towed away.
*569 Goins, Gammon, Baker & Robinson, Chattanooga, for plaintiff-appellee.
Bates Bryan, Chattanooga, for defendant-appellant.
OPINION
W. M. LEECH, Special Justice.
Pioneer Parking Lot, Inc. has appealed from a judgment entered in theCircuit Court of Hamilton County awarding Bobby Joe Rhodes $2,263.00 asdamages for the theft of his automobile from a parking lot operated byappellant. Appeal was made direct to this Court pursuant to s 16--408 T.C.A.,because the case was finally determined in the lower court by a 'methodnot involving review or determination of the facts.'
Appellant operates a parking lot located on Chestnut Street in Chattanooga,Tennessee of the type commonly known as a 'self-service Park & lock'operation. The ticket received by appellee when he parked his car containedthe following language:'NOTICE
THIS CONTRACT LIMITS OUR LIABILITY--READ IT
WE RENT SPACE ONLY. No bailment is created and we are not responsible*570 for loss of or damage to, car or contents. This ticket is sold subjectto space being available and is not transferable.' A sign posted on thelot described the parking procedure as follows:'SELF SERVICE PARK & LOCK
1. Buy ticket before Parking
2. Place Ticket on Dash
3. Park & Lock Car
CARS WITHOUT VALIDATED TICKET WILL BE TOWED AWAY'
There are no restrictions or controls over entry or departure of vehiclesor people to and from the parking lot. Moreover, there has never been anyattendant to service or look after this lot. Although there is but oneentrance which is also the exit, there are no cashiers on this lot.
On October 8, 1969 at about 12:00 o'clock noon, the plaintiff drovehis 1968 Chevrolet Camaro onto the defendant's parking lot. At the entranceto this parking lot there is a ticket meter. Plaintiff placed fifty centsin the meter and the meter returned to him the previously set out ticket.Plaintiff then drove his car further into the lot and without any directionor supervision parked it himself; removed the keys from the ignition; placedhis ticket on the dash in accordance with the instructions; and lockedhis car and left the lot keeping his keys himself. Subsequently, plaintiffreturned to the parking lot to find that his car had been stolen. His carwas later found in a stripped condition and as a result he brought thissuit to recover the value of his car.
The trial judge found that the stipulated facts made out a bailor-baileerelationship between plaintiff and defendant and that plaintiff was entitledto recover the value of the car.
The only issue before this Court is whether the relationship betweenplaintiff and defendant constituted a bailment, so as to permit plaintiffto recover damages for the failure of defendant to redeliver plaintiff'scar on demand.
[1] A bailment is the delivery of personalty to another for a particularpurpose or on mere deposit, on a contract express or implied, that afterthe purpose has been fulfilled, it shall be redelivered to the person whodelivered it, or otherwise dealt with according to his direction or keptuntil he reclaims it. See, e.g., Jackson v. Metropolitan Government ofNashville, 483 S.W.2d 92 (Tenn.1972).
[2] The creation of a bailment in the absence of an express contractrequires that possession and control over the subject matter pass fromthe bailor to the bailee. In order to constitute a sufficient deliveryof the subject matter there must be a full transfer, either actual or constructive,of the property to the bailee so as to exclude it from the possession ofthe owner and all other persons and give to the bailee, for the time being,the sole custody and control thereof. See Jackson v. Metropolitan Governmentof Nashville, supra, Scruggs v. Dennis, 222 Tenn. 714, 440 S.W.2d 20 (1969);Old Hickory Parking Corp. v. Alloway, 26 Tenn.App. 683, 177 S.W.2d 23 (1944).See generally, 8 Am.Jur.2d 960--61.
[3] In parking lot and parking garage situations, a bailment is createdwhere the operator of the lot or garage has knowingly and voluntarily assumedcontrol, possession, or custody of the motor vehicle; if he has not doneso, there may be a mere license to park or a lease of parking space. See,e.g., Lewis v. Ebersole, 244 Ala. 200, 12 So.2d 543 (1943); SoutheasternFair Association v. Ford, 64 Ga.App. 871, 14 S.E.2d 139 (1941). In OldHickory Parking Corp. v. Alloway, supra, the court found a bailment wherepossession of the vehicle was actually surrendered to an attendant. Anotherfactor used to determine whether the operator of the lot has assumed controlis the surrender of the keys by the motorist to the operator. See Scruggsv. *571 Dennis, supra. Moreover, in the latter case the necessary possessionand control were found where the car could not be taken from the parkinggarage without the presentation of a parking ticket and payment of theparking fee to an attendant-cashier. In addition, in Jackson v. MetropolitanGovernment of Nashville, supra, the plaintiff was permitted to pass a barricadeand enter a parking lot on payment of a fee, and was then directed by anattendant into a parking spot, thus we found a bailment.
[4] In the case at bar, however, we find no evidence to justify a findingthat the plaintiff delivered his car into the custody of the defendant,nor do we find any act or conduct upon the defendant's part which wouldjustify a reasonable person believing that an obligation of bailment hadbeen assumed by the defendant. To the contrary, the facts show that theplaintiff at no time left his car in defendant's possession and control.Plaintiff paid the designated parking fee by depositing the money in theticket meter. He drove his car into the parking lot, undirected and unsupervisedby defendant, and chose a parking space within the lot suitable to himself.Plaintiff then parked and locked the car, retaining the key. At no timedid plaintiff come into contract with any of defendant's employees, norwas plaintiff required to contact an employee of the defendant on takinghis car from the parking lot. It necessarily follows, therefore, that therewas no bailor-bailee relationship established between the plaintiff andthe defendant.
However, plaintiff argues that the statement 'CARS WITHOUT VALIDATEDTICKETS WILL BE TOWED AWAY' would lead the average person to believe thatthere would be some supervision of the vehicle while it was parked in thelot, and that such was sufficient to create an implied contract of bailment.We disagree. The clear meaning of the statement is that cars in the parkinglot would be checked for the sole purpose of enforcing payment of the parkingfee and not that the parking lot operator was exercising dominion overall vehicles parked on the lot, especially where as in the case at barthe parking fee was paid. It results therefore that the judgment enteredin the trial court is reversed and the case is dismissed.DYER, C.J., McCANLESS and FONES, JJ., and JENKINS, Special Justice,concur.
Tenn. 1973.
Rhodes v. Pioneer Parking Lot, Inc.,
END OF DOCUMENT
===========================
Allen v. Hyatt Regency-Nashville Hotel
668 S.W.2d 286
Tenn.,1984.
March 26, 1984. Rehearing Denied April 23, 1984. (Approx. 6 pages)Supreme Court of Tennessee,
at Nashville.
Betty J. ALLEN, Plaintiff-Appellee,
v.
HYATT REGENCY--NASHVILLE HOTEL, Defendant-Appellant.
March 26, 1984.
Rehearing Denied April 23, 1984.In suit by hotel guest against the hotel, the Equity Court, DavidsonCounty, C. Allen High, Chancellor, found that bailment had been createdwhen the owner parked and locked vehicle. On appeal by the hotel, the SupremeCourt, Harbison, J., held that where the vehicle was not driven into unattendedor open parking area but, rather, was driven into enclosed, indoor, attended,commercial garage which not only had attendant controlling exit but regularsecurity personnel to patrol the premises for safety, bailment for hirewas created, and, upon proof of nondelivery, guest was entitled to statutorypresumption of negligence.
Affirmed and remanded.
Drowota, J., dissented and filed opinion in which Brock, J., joined.
West Headnotes
KeyCite this headnote
48A Automobiles
48AVIII Garage Keepers, Repairmen, Auto Liverymen, and FillingStations
48Ak369 Storage of Vehicles; Parking Facilities
48Ak372 Injury to or Loss of Vehicleor Contents
48Ak372(3) Actions
48Ak372(4) k.Evidence and Fact Questions.Where hotel guest's vehicle was not driven into unattended or open parkingarea but, rather, was driven into enclosed, indoor, attended, commercialgarage which not only had attendant controlling exit but regular securitypersonnel to patrol the premises for safety, bailment for hire was created,and, upon proof of nondelivery, guest was entitled to statutory presumptionof negligence. T.C.A. § 24-5-111.
*286 Laurence M. Papel, Taylor, Schlater, Lassiter, Tidwell & Trentham,Nashville, for plaintiff-appellee.
*287 James R. Kniffen, Barnett & Alagia, Nashville, for defendant-appellant.
James I. Vance Berry, Peter H. Curry, Nashville, amicus curiae AllrightParking, Inc. and Central Parking, Inc.
OPINION
HARBISON, Justice.
In this case the Court is asked to consider the nature and extent ofthe liability of the operator of a commercial parking garage for theftof a vehicle during the absence of the owner. Both courts below, on thebasis of prior decisions from this state, held that a bailment was createdwhen the owner parked and locked his vehicle in a modern, indoor, multi-storygarage operated by appellant in conjunction with a large hotel in downtownNashville. We affirm.
There is almost no dispute as to the relevant facts. Appellant is theowner and operator of a modern high-rise hotel in Nashville fronting onthe south side of Union Street. Immediately to the rear, or south, of themain hotel building there is a multi-story parking garage with a singleentrance and a single exit to the west, on Seventh Avenue, North. As oneenters the parking garage at the street level, there is a large sign reading"Welcome to Hyatt Regency-Nashville." There is another Hyatt Regency signinside the garage at street level, together with a sign marked "Parking."The garage is available for parking by members of the general public aswell as guests of the hotel, and the public are invited to utilize it.
On the morning of February 12, 1981, appellee's husband, Edwin Allen,accompanied by two passengers, drove appellee's new 1981 automobile intothe parking garage. Neither Mr. Allen nor his passengers intended to registerat the hotel as a guest. Mr. Allen had parked in this particular garageon several occasions, however, testifying that he felt that the vehiclewould be safer in an attended garage than in an unattended outside loton the street.
The single entrance was controlled by a ticket machine. The singleexit was controlled by an attendant in a booth just opposite to the entranceand in full view thereof. Appellee's husband entered the garage at thestreet level and took a ticket which was automatically dispensed by themachine. The machine activated a barrier gate which rose and permittedMr. Allen to enter the garage. He drove to the fourth floor level, parkedthe vehicle, locked it, retained the ignition key, descended by elevatorto the street level and left the garage. When he returned several hourslater, the car was gone, and it has never been recovered. Mr. Allen reportedthe theft to the attendant at the exit booth, who stated, "Well, it didn'tcome out here." The attendant did not testify at the trial.
Mr. Allen then reported the theft to security personnel employed byappellant, and subsequently reported the loss to the police. Appellantregularly employed a number of security guards, who were dressed in a distinctiveuniform, two of whom were on duty most of the time. These guards patrolledthe hotel grounds and building as well as the garage and were instructedto make rounds through the garage, although not necessarily at specifiedintervals. One of the security guards told appellee's husband that earlierin the day he had received the following report:
"He said, 'It's a funny thing here. On my report here a lady calledme somewhere around nine-thirty or after and said that there was someonemessing with a car.' "
The guard told Mr. Allen that he closed his office and went up intothe garage to investigate, but reported that he did not find anything unusualor out of the ordinary.
Customers such as Mr. Allen, upon entering the garage, received a ticketfrom the dispensing machine. On one side of this ticket are instructionsto overnight guests to present the ticket to the front desk of the hotel.The other side contains instructions to the parker to keep the ticket and*288 that the ticket must be presented to the cashier upon leaving theparking area. The ticket states that charges are made for the use of parkingspace only and that appellant assumes no responsibility for loss throughfire, theft, collision or otherwise to the car or its contents. The ticketstates that cars are parked at the risk of the owner, and parkers are instructedto lock their vehicles. [FN1] The record indicates that these tickets aregiven solely for the purpose of measuring the time during which a vehicleis parked in order that the attendant may collect the proper charge, andthat they are not given for the purpose of identifying particular vehicles.
FN1. It is not insisted that the language of the ticket is sufficientto exonerate appellant, since the customer is not shown to have read itor to have had it called to his attention. See Savoy Hotel Corp. v. Sparks,57 Tenn.App. 537, 421 S.W.2d 98 (1967).
The question of the legal relationship between the operator of a vehiclewhich is being parked and the operator of parking establishments has beenthe subject of frequent litigation in this state and elsewhere. The authoritiesare in conflict, and the results of the cases are varied. [FN2]
FN2. See Annot. 13 A.L.R.4th 359 (1982); 7 A.L.R.3d 927 (1966).
It is legally and theoretically possible, of course, for various legalrelationships to be created by the parties, ranging from the traditionalconcepts of lessor-lessee, licensor-licensee, bailor-bailee, to that describedin some jurisdictions as a "deposit." [FN3] Several courts have found difficultywith the traditional criteria of bailment in analyzing park-and-lock cases.One of the leading cases is McGlynn v. Parking Authority of City of Newark,86 N.J. 551, 432 A.2d 99 (1981). There the Supreme Court of New Jerseyreviewed numerous decisions from within its own state and from other jurisdictions,and it concluded that it was more "useful and straightforward" to considerthe possession and control elements in defining the duty of care of a garageoperator to its customers than to consider them in the context of bailment.That Court concluded that the "realities" of the relationship between theparties gave rise to a duty of reasonable care on the part of operatorsof parking garages and parking lots. It further found that a garage owneris usually better situated to protect a parked car and to distribute thecost of protection through parking fees. It also emphasized that ownersusually expect to receive their vehicles back in the same condition inwhich they left them and that the imposition of a duty to protect parkedvehicles and their contents was consistent with that expectation. The Courtwent further and stated that since the owner is ordinarily absent whentheft or damage occurs, the obligation to come forward with affirmativeevidence of negligence could impose a difficult, if not insurmountable,burden upon him. After considering various policy considerations, whichit acknowledged be the same as those recognized by courts holding thata bailment is created, the New Jersey Court indulged or authorized a presumptionof negligence from proof of damage to a car parked in an enclosed garage.432 A.2d at 105. [FN4]
FN3. See Gauthier v. Allright New Orleans, Inc., 417 So.2d 375 (La.App.1982).
FN4. Other courts, declining to find a bailment, have onerated the customerwith proving negligence. E.g., Central Parking System v. Miller, 586 S.W.2d262 (Ky.1979).
Although the New Jersey Court concluded that a more flexible and comprehensiveapproach could be achieved outside of traditional property concepts, Tennesseecourts generally have analyzed cases such as this in terms of sufficiencyof the evidence to create a bailment for hire by implication. We believethat this continues to be the majority view and the most satisfactory andrealistic approach to the problem, unless the parties clearly by theirconduct or by express contract create some other relationship.
The subject has been discussed in numerous previous decisions in thisstate. One of the leading cases is Dispeker v. New Southern Hotel Co.,213 Tenn. 378, 373 *289 S.W.2d 904 (1963). In that case the guest at ahotel delivered his vehicle to a bellboy who took possession of it andparked it in a lot adjoining the hotel building. The owner kept the keys,but the car apparently was capable of being started without the ignitionkey. The owner apparently had told the attendant how to so operate it.Later the employee took the vehicle for his own purposes and damaged it.Under these circumstances the Court held that a bailment for hire had beencreated and that upon proof of misdelivery of the vehicle the bailee wasliable to the customer.
In the subsequent case of Scruggs v. Dennis, 222 Tenn. 714, 440 S.W.2d20 (1969), upon facts practically identical to those of the instant case,the Court again held that an implied bailment contract had been createdbetween a customer who parked and locked his vehicle in a garage. Uponentry he received a ticket dispensed by a machine, drove his automobileto the underground third level of the garage and parked. He retained hisignition key, but when he returned to retrieve the automobile in the afternoonit had disappeared. It was recovered more than two weeks later and returnedto the owner in a damaged condition.
In that case the operator of the garage had several attendants on duty,but the attendants did not ordinarily operate the parked vehicles, as inthe instant case. [FN5]
FN5. Appellant's employees occasionally parked the vehicles of patronswho were handicapped and under other unusual circumstances.
Although the Court recognized that there were some factual differencesbetween the Scruggs case and that of Dispeker v. New Southern Hotel Co.,supra, it concluded that a bailment had been created when the owner parkedhis vehicle for custody and safe keeping in the parking garage, where therewas limited access and where the patron had to present a ticket to an attendantupon leaving the premises.
A bailment relationship was also found in Jackson v. Metropolitan Governmentof Nashville, 483 S.W.2d 92 (Tenn.1972), when faculty members of a highschool conducted an automobile parking operation for profit upon the highschool campus. A customer who parked his vehicle there was allowed recoveryfor theft, even though he had parked the vehicle himself after paying afee, had locked the vehicle and had kept the keys.
On the contrary, in the case of Rhodes v. Pioneer Parking Lot, Inc.,501 S.W.2d 569 (Tenn.1973), a bailment was found not to exist when theowner left his vehicle in an open parking lot which was wholly unattendedand where he simply inserted coins into a meter, received a ticket, thenparked the vehicle himself and locked it.
Denying recovery, the Court said:
"In the case at bar, however, we find no evidence to justify a findingthat the plaintiff delivered his car into the custody of the defendant,nor do we find any act or conduct upon the defendant's part which wouldjustify a reasonable person believing that an obligation of bailment hadbeen assumed by the defendant." 501 S.W.2d at 571.
In the instant case, appellee's vehicle was not driven into an unattendedor open parking area. Rather it was driven into an enclosed, indoor, attendedcommercial garage which not only had an attendant controlling the exitbut regular security personnel to patrol the premises for safety.
Under these facts we are of the opinion that the courts below correctlyconcluded that a bailment for hire had been created, and that upon proofof nondelivery appellee was entitled to the statutory presumption of negligenceprovided in T.C.A. § 24-5-111.
We recognize that there is always a question as to whether there hasbeen sufficient delivery of possession and control to create a bailmentwhen the owner locks a vehicle and keeps the keys. Nevertheless, the realitiesof the situation are that the operator of the garage is, in circumstanceslike those shown in this record, expected to *290 provide attendants andprotection. In practicality the operator does assume control and custodyof the vehicles parked, limiting access thereto and requiring the presentationof a ticket upon exit. As stated previously, the attendant employed byappellant did not testify, but he told appellee's husband that the vehicledid not come out of the garage through the exit which he controlled. Thistestimony was not amplified, but the attendant obviously must have beenin error or else must have been inattentive or away from his station. Therecord clearly shows that there was no other exit from which the vehiclecould have been driven.
Appellant made no effort to rebut the presumption created by statutein this state (which is similar to presumptions indulged by courts in someother jurisdictions not having such statutes). While the plaintiff didnot prove positive acts of negligence on the part of appellant, the recorddoes show that some improper activity or tampering with vehicles had beencalled to the attention of security personnel earlier in the day of thetheft in question, and that appellee's new vehicle had been removed fromthe garage by some person or persons unknown, either driving past an inattentiveattendant or one who had absented himself from his post, there being simplyno other way in which the vehicle could have been driven out of the garage.
Under the facts and circumstances of this case, we are not inclinedto depart from prior decisions or to place the risk of loss upon the consumingpublic as against the operators of commercial parking establishments suchas that conducted by appellant. We recognize that park-and-lock situationsarise under many and varied factual circumstances. It is difficult to laydown one rule of law which will apply to all cases. The expectations ofthe parties and their conduct can cause differing legal relationships toarise, with consequent different legal results. We do not find the factsof the present case, however, to be at variance with the legal requirementsof the traditional concept of a bailment for hire. In our opinion it amountedto more than a mere license or hiring of a space to park a vehicle, unaccompaniedby any expectation of protection or other obligation upon the operatorof the establishment.
The judgment of the courts below is affirmed at the cost of appellant.The cause will be remanded to the trial court for any further proceedingswhich may be necessary.FONES, C.J., and COOPER, J., concur.
DROWOTA, J., files dissenting opinion, joined therein by BROCK, J.
DROWOTA, Justice, dissenting.
In this case we are asked to consider the nature and extent of liabilityof the operator of a commercial "park and lock" parking garage. In makingthis determination, we must look to the legal relationship between theoperator of the vehicle and the operator of the parking facility. The majorityopinion holds that a bailment contract has been created, and upon proofof non-delivery Plaintiff is entitled to the statutory presumption of negligenceprovided in T.C.A. § 24-5-111. I disagree, for I find no bailmentexisted and therefore the Plaintiff does not receive the benefit of thepresumption. Consequently, the Plaintiff had the duty to prove affirmativelythe negligence of the operator of the parking facility and this Plaintifffailed to do.
The majority opinion states that "courts have found difficulty withthe traditional criteria of bailment in analyzing park and lock cases."The majority discusses the case of McGlynn v. Parking Authority of Cityof Newark, 86 N.J. 551, 432 A.2d 99 (1981), which suggests that bailmentis an outmoded concept for analyzing parking lot and garage cases. In Garlockv. Multiple Parking Services, Inc., 103 Misc.2d 943, 427 N.Y.S.2d 670,677, 13 A.L.R.4th, 428 (1980), the court stated that "the 'bailment theory'as a basis for recovery in parking lot cases is no longer appropriate."That court concluded that since the concept of bailment is no longer aviable theory in application to a very real modern problem *291 that theproper standard to be followed in such cases is "reasonable care underthe circumstances whereby foreseeability shall be a measure of liability."Id. 427 N.Y.S.2d at 678.
Even though some courts now suggest that the theory of bailment isan archaic and inappropriate theory upon which to base liability in modernpark and lock cases, the majority opinion states that "Tennessee courtsgenerally have analyzed cases such as this in terms of sufficiency of theevidence to create a bailment for hire by implication," and concludes thatthis is "the most satisfactory and realistic approach to the problem."I do not disagree with the longstanding use of the bailment analysis inthis type of case. I do disagree, however, with the majority's conclusionthat a bailment for hire has been created in this case.
The record shows that upon entering this parking garage a ticket, showingtime of entry, is automatically dispensed by a machine. The ticket statesthat charges are made for the use of a parking space only and that thegarage assumes no responsibility for loss to the car or its contents. Theticket further states that cars are parked at the risk of the owner, andparkers are instructed to lock their vehicles. The majority opinion pointsout that it is not insisted that this language on the ticket is sufficientto exonerate the garage, since the customer is not shown to have read itor to have had it called to his attention. Savoy Hotel Corp. v. Sparks,57 Tenn.App. 537, 421 S.W.2d 98 (1967). The ticket in no way identifiesthe vehicle, it is given solely for the purpose of measuring the lengthof time during which the vehicle is parked in order that a proper chargemay be made.
In this case Mr. Allen, without any direction or supervision, parkedhis car, removed his keys, and locked the car and left the parking garagehaving retained his ignition key. The presentation of a ticket upon exitis for the sole purpose of allowing the cashier to collect the proper charge.The cashier is not required to be on duty at all times. When no cashieris present, the exit gate is opened and no payment is required. [FN1] Asthe majority opinion states, the ticket is "not given for the purpose ofidentifying particular vehicles." The ticket functioned solely as a sourceof fee computation, not of vehicle identification.
FN1. Between one or two in the morning and six or seven a.m., the garageis entirely open without a cashier to collect parking fees. During theday if the cashier leaves his or her post on a break, the exit gate isopened and the vehicle owner may exit without payment.
The majority opinion states: "[W]e do not find the facts of the presentcase to be at variance with the legal requirements of the concept of abailment for hire." I must disagree, for I feel the facts of the presentcase are clearly at variance with what I consider to be the legal requirementsof the traditional concept of a bailment for hire.
Bailment has been defined by this Court in the following manner:
The creation of a bailment in the absence of an express contract requiresthat possession and control over the subject matter pass from the bailorto the bailee. In order to constitute a sufficient delivery of the subjectmatter there must be a full transfer, either actual or constructive, ofthe property to the bailee so as to exclude it from the possession of theowner and all other persons and give to the bailee, for the time being,the sole custody and control thereof. See Jackson v. Metropolitan Governmentof Nashville, supra, Scruggs v. Dennis, 222 Tenn. 714, 440 S.W.2d 20 (1969);Old Hickory Parking Corp. v. Alloway, 26 Tenn.App. 683, 177 S.W.2d 23 (1944).See generally, 8 Am.Jur.2d 960-61.
In parking lot and parking garage situations, a bailment is createdwhere the operator of the lot or garage has knowingly and voluntarily assumedcontrol, possession, or custody of the motor vehicle; if he has not doneso, there may be a mere license to park or a lease of parking space. See,e.g., Lewis v. Ebersole, 244 Ala. 200, 12 So.2d 543 (1943); SoutheasternFair Association v. Ford, 64 Ga.App. 871, 14 S.E.2d 139 (1941).
*292 Rhodes v. Pioneer Parking Lot, Inc., 501 S.W.2d 569, 570 (Tenn.1973).
From its earliest origins, the most distinguishing factor identifyinga bailment has been delivery. Our earliest decisions also recognize acceptanceas a necessary factor, requiring that possession and control of the propertypass from bailor to bailee, to the exclusion of control by others. Thetest thus becomes whether the operator of the vehicle has made such a deliveryto the operator of the parking facility as to amount to a relinquishmentof his exclusive possession, control, and dominion over the vehicle sothat the latter can exclude it from the possession of all others. If so,a bailment has been created.
When the automobile began replacing the horse and buggy, our courtsallowed bailment law to carry over and govern the parking of vehicles.In cases such as Old Hickory Parking Corp. v. Alloway, 177 S.W.2d 23 (Tenn.App.1943),and Savoy Hotel v. Sparks, 421 S.W.2d 98 (Tenn.App.1967), where the operatorof the vehicle left his vehicle with an attendant and left the keys forthe attendant to move the vehicle as he wished, the bailment relationshipwas evident for we had a clear delivery, acceptance of possession, control,and exercise of dominion over the vehicle--all the traditional elementsof a bailment. In Dispeker v. New Southern Hotel Company, 213 Tenn. 378,373 S.W.2d 904 (1963), a bellboy parked plaintiff's car, plaintiff retainedthe keys but explained to the bellboy that the car could be operated withoutthe key, and apparently showed him how to operate it. The bellboy wentoff duty, then returned and stole the car. Once again, the traditionalelements of delivery and control were present.
These cases involving parking attendants and personalized service havecaused us no problems. The problem arises in this modern era of automatedparking, when courts have attempted to expand the limits of existing areasof the law to encompass technological and commercial advances. Such isthe case of Scruggs v. Dennis, 440 S.W.2d 20 (Tenn.1969), relied upon inthe majority opinion. In Scruggs, as in this case, the entire operationis automated, with the exception of payment upon departure. The operationbears little, if any, resemblance to the circumstances found in Old HickoryParking Corp., Savoy Hotel, and Dispeker. Yet the Court in Scruggs, inquoting extensively from the Dispeker opinion, states that "There are someminute differences of fact ..." Id., 440 S.W.2d at 22. As pointed out above,the differences of fact in Dispeker are not minute or so similar as theScruggs court would suggest. Delivery, custody and control are clearlypresent in Dispeker. I fail to find such delivery, custody and controlin Scruggs or in the case at bar. In Dispeker, the vehicle was actuallytaken from the owner by an attendant. I believe the Scruggs court and themajority opinion today attempt to apply bailment law in situations wherethere is not a true bailment relationship.
The Scruggs opinion was recently cited in a dissenting opinion in Kentuckywhere the plaintiff entered a six-story, self-parking garage in downtownLouisville. The only employee on duty was the attendant who collected themoney from the driver upon exiting. The garage was patrolled three timesdaily by garage personnel. The Kentucky Supreme Court chose not to followthe Scruggs rationale and held "when a person parks his automobile in agarage by receiving a ticket from an automated machine, choosing his ownspace and taking his keys with him, the garage is not a bailee and is notliable in the absence of negligence on its part." Central Parking Systemv. Miller, 586 S.W.2d 262, 263 (Ky.1979).
The difficulty in these types of cases seems to arise when the traditionalelements of bailment are missing and courts must determine whether thereis an implied bailment created by implication from the surrounding circumstancesand the conduct of the parties. In Jackson v. Metropolitan Government ofNashville, 483 S.W.2d 92 (Tenn.1972), the Court based its opinion on thefinding that the Defendants, by their *293 conduct, "impliedly promisedto use ordinary and reasonable care to preserve the property during theterm of the bailment and to return the bail property to complainant ondemand or to his order." Id., at 95.
The majority opinion "recognize[s] that there is always a questionas to whether there has been sufficient delivery of possession and controlto create a bailment when the owner locks a vehicle and keeps the keys."The majority finds that "in practicality the operator does assume controland custody of the vehicles parked, limiting access thereto and requiringthe presentation of a ticket upon exit." The majority opinion, as did theScruggs court, finds custody and control implied because of the limitedaccess and because "the presentation of a ticket upon exit" is required.I cannot agree with this analysis as creating a bailment situation. I donot believe that based upon the fact that a ticket was required to be presentedupon leaving, that this factor created a proper basis upon which to finda bailment relationship. The ticket did not identify the vehicle or theoperator of the vehicle, as do most bailment receipts. The cashier wasnot performing the traditional bailee role or identifying and returninga particular article, but instead was merely computing the amount owedand accepting payment due for use of a parking space. I do not believethe Defendant exercised such possession and control over Plaintiff's automobileas is necessary in an implied bailment.
As recently stated in Merritt v. Nationwide Warehouse Co., Ltd., 605S.W.2d 250, 253 (Tenn.App.1980), "Such full delivery must be made as willentitle the bailee to exclude the possession of all other persons and puthim in sole custody and control." The full transfer of possession and control,necessary to constitute delivery, should not be found to exist simply bythe presentation of a ticket upon exit. In the case at bar, I find no suchdelivery and relinquishment of exclusive possession and control as to createa bailment. Plaintiff parked his car, locked it and retained the key. CertainlyDefendant cannot be said to have sole custody of Plaintiff's vehicle, forDefendant could not move it, did not know to whom it belonged, and didnot know when it would be reclaimed or by whom. Anyone who manually obtaineda ticket from the dispenser could drive out with any vehicle he was capableof operating. Also, a cashier was not always on duty. When on duty, solong as the parking fee was paid--by what means could the Defendant reasonablyexercise control? The necessary delivery and relinquishment of controlby the Plaintiff, the very basis upon which the bailment theory was developed,is missing.
We should realize that the circumstances upon which the principlesof bailment law were established and developed are not always applicableto the operation of the modern day automated parking facility. The elementof delivery, of sole custody and control are lacking in this case.I am authorized to state that BROCK, J., joins with me in this dissent.
Tenn.,1984.
Allen v. Hyatt Regency-Nashville Hotel
END OF DOCUMENT
===========================
State v. Bowling
867 S.W.2d 338
Tenn.Cr.App.,1993.
Jan. 21, 1993. No Permission to Appeal Applied for to the Supreme Court.(Approx. 6 pages)Court of Criminal Appeals of Tennessee,
at Nashville.
STATE of Tennessee, Appellant,
v.
David D. BOWLING, Appellee.
Jan. 21, 1993.
No Permission to Appeal Applied
for to the Supreme Court.
In prosecution respecting hit and run accident resulting in death ofvictim, defendant moved to suppress evidence. The Criminal Court, DavidsonCounty, Walter C. Kurtz, J., granted motion. State appealed. The Courtof Criminal Appeals, Peay, J., held that: (1) officer's actions, of gettingon his hands and knees with his head almost touching ground and lookinginto garage through partially raised garage door, was unconstitutionalwarrantless "search"; (2) inaccuracies in search warrant affidavit didnot render search warrant invalid; and (3) search warrant affidavit, absentinformation obtained from unconstitutional search of garage, was insufficientto support probable cause for search respecting vehicle suspected to beinvolved in hit and run accident.
Affirmed.
West Headnotes
[1] KeyCite this headnote
349 Searches and Seizures
349I In General
349k13 What Constitutes Search or Seizure
349k17 k. Interior of Premises, Viewfrom Outside.Officer's actions, of getting on his hands and knees with his head almosttouching ground and looking into garage through garage door that had beenraised one and a half feet to allegedly enable dog to come and go fromgarage, constituted warrantless "search" which violated Fourth Amendmentand state constitutional provision governing searches and seizures. U.S.C.A.Const.Amend. 4; Const. Art. 1, § 7.
[2] KeyCite this headnote
349 Searches and Seizures
349I In General
349k25 Persons, Places and Things Protected
349k26 k. Expectation of Privacy.Touchstone of unreasonable search and seizure analysis is whether personhas constitutionally protected reasonable expectation of privacy. U.S.C.A.Const.Amend. 4; Const. Art. 1, § 7.
[3] KeyCite this headnote
349 Searches and Seizures
349I In General
349k25 Persons, Places and Things Protected
349k26 k. Expectation of Privacy.Neither Fourth Amendment nor state constitutional provision governingsearches and seizures protects what citizen knowingly exposes to public.U.S.C.A. Const.Amend. 4; Const. Art. 1, § 7.
[4] KeyCite this headnote
349 Searches and Seizures
349I In General
349k25 Persons, Places and Things Protected
349k26 k. Expectation of Privacy.For purposes of searches and seizures analysis under Federal and StateConstitutions, that which citizen knowingly exposes to public is that inwhich he or she has not manifested subjective expectation of privacy. U.S.C.A.Const.Amend. 4; Const. Art. 1, § 7.
[5] KeyCite this headnote
349 Searches and Seizures
349I In General
349k25 Persons, Places and Things Protected
349k27 k. Curtilage or Open Fields;Yards and Outbuildings.For purposes of constitutional search and seizure analysis, societyhas recognized that resident of home usually has reasonable expectationof privacy in garage. U.S.C.A. Const.Amend. 4; Const. Art. 1, § 7.
[6] KeyCite this headnote
349 Searches and Seizures
349I In General
349k25 Persons, Places and Things Protected
349k26 k. Expectation of Privacy.For purposes of constitutional search and seizure analysis, in areaswhere reasonable expectation of privacy is usually accorded, officer ispermitted same license to intrude as reasonably respectful citizen. U.S.C.A.Const.Amend. 4; Const. Art. 1, § 7.
[7] KeyCite this headnote
349 Searches and Seizures
349II Warrants
349k112 k. False, Inaccurate or Perjured Information;Disclosure.Inaccuracies in search warrant affidavit respecting where vehicle suspectedto be involved in hit and run accident was parked and when parking ticketwas received, which were reckless misrepresentations, did not render searchwarrant invalid; there was no intent to deceive court, and inaccuracieswere not reckless misrepresentations of material fact. U.S.C.A. Const.Amend.4; Const. Art. 1, § 7.
[8] KeyCite this headnote
349 Searches and Seizures
349II Warrants
349k115 Competency of Information; Hearsay
349k120 k. Legality of Information.Search warrant affidavit, absent information obtained from police officer'sunconstitutional search of garage, was insufficient to support probablecause for search respecting vehicle suspected to be involved in hit andrun accident; affidavit failed to indicate basis of informant's knowledge,as it made no mention of how informant obtained information. U.S.C.A. Const.Amend.4; Const. Art. 1, § 7.
*339 Charles W. Burson, Atty. Gen. and Reporter, Kathy M. Principe,Asst. Atty. Gen., Victor S. Johnson, III, Dist. Atty. Gen., James Walsh,Asst. Dist. Atty. Gen., Nashville, for appellant.
David E. High, Nashville, for appellee.
OPINION
PEAY, Judge.
This case is an appeal by the State of Tennessee pursuant to T.R.A.P.3(c)(1) from an order granting the defendant's motion to suppress certainevidence.
Essentially four questions are raised on appeal. First, whether OfficerPoteete's actions of getting down on his hands and knees with his headvery near to the ground, and looking into the garage violated the defendant'sreasonable expectation of privacy, constituting a warrantless search inviolation of the Fourth Amendment of the United States Constitution andArticle I, Section 7 of the Tennessee Constitution; second, whether thesearch warrant affidavit contained reckless misrepresentations of materialfacts; third, whether the search warrant affidavit, absent the informationattained from the contested search, would be sufficient on its face torender probable cause; and fourth, whether the appeal in this case wastimely filed and, therefore, should not be dismissed. Having reviewed thesematters, we conclude that the appeal should not be dismissed, and we affirmthe lower court's action.
To best analyze and understand the matters raised, we must first laya factual foundation. On March 16, 1990, Officer Lloyd Poteete, a hit andrun accident investigator for the Metropolitan Nashville Police Department,responded to a hit and run fatality on Murfreesboro Road in Nashville,Tennessee. The victim was walking on the shoulder of the road when shewas struck from behind and killed by a vehicle which fled the scene. Atthe scene of the incident, several pieces of plastic and debris commonto the type used on the front of vehicles and automobile grills were recovered.One of the recovered pieces was a Ford logo. A witness at the scene alsoindicated that the vehicle involved in the incident was a tan or lightbrown colored vehicle. After further investigation Officer Poteete ascertainedthat the recovered pieces were from the grill of a 1983 to 1986 Ford truckor Bronco.
Other than this information, there was little with which to proceed.However, on March 19, 1990, an anonymous individual telephoned the NashvillePolice Department and stated that the defendant had been involved in theincident which had occurred on March 16, 1990. The informant added thatthe defendant had come home late at night driving a dark tan or brown FordBronco truck which had front end damage on it and that the truck was pulledbehind a house on Springmont Drive. Officer Poteete followed up on thisinformation, learning that the defendant had received a traffic ticketwhile driving the 1984 Ford truck and that the defendant's address waslisted as 325 Overhill Drive in Old Hickory, Wilson County, Tennessee.Overhill Drive is located in a subdivision named "Springmont".
Pursuant to such information Officer Poteete, Metro Officer Ron Anderson,and Wilson *340 County Deputy Ricky Knight proceeded to 325 Overhill Drivein the Springmont Subdivision. At this address they found a split-levelhouse with a two car garage directly under the main living floor. A largedriveway proceeded along the right side of the house and ended at two solidgarage doors on this side of the house. Around the back of the home, adoor with a window led into the garage. Also on the back of the house wasa patio porch with another door which led into the house.
Upon arrival Officer Poteete knocked on the front door of the homewhile Officers Anderson and Knight went around to the back door. OfficerPoteete continued to knock on the front door and received no response whileOfficer Knight knocked on the back door and also received no response.Officer Anderson, making his way back to the front of the house, stoppedand knocked on the door leading into the garage. As Officer Anderson knocked,he glanced through the window in the door and noticed a brown Bronco truckon the far side of the garage. Although he could not see the front endof the truck, he could see that the hood was slightly buckled, which indicatedto him that there might be some damage to the front of the Bronco.
Officer Poteete walked away from the front door and was making hisway around the side of the house towards the back when Officer Andersonnotified him that he had observed a brown-colored Bronco in the garage.For some reason, however, Officer Anderson did not mention to Officer Poteetethat he had observed the hood's being slightly buckled. At this time theofficers were standing in the driveway in front of the two solid garagedoors. While the garage doors have no windows, the door closest to theback yard and farthest from the truck had been left open approximatelyone and a half feet allegedly for the purpose of allowing the dog to comeand go from the garage. Officer Poteete then got down on his hands andknees with his head very near to the ground and looked into the garage.>From this position, he was able to see that the Ford Bronco had sustainedfront end damage.
Subsequently, a search warrant was obtained based upon an affidavit,the pertinent parts of which include:
Affiant [Officer Poteete] is an officer of the Metropolitan Nashville,Tennessee, Police Department, and is currently assigned to the TrafficDivision as a Hit & Run investigator. ... On Friday, March 16, 1990,affiant responded to the scene of a fatal hit and run accident which occurredat 1132 Murfreesboro Road, in Nashville, Davidson County, Tennessee, atapproximately 1:30 A.M. ... On Monday, March 19, 1990, Officer Earl Watsonof the Metropolitan Nashville Police Department, received an anonymoustelephone call advising him of the location of a vehicle possibly involvedin the fatal accident. From information received, Officer Watson advisedaffiant that a "David Bowling" had returned to his residence, located on"Springmont," at approximately 2:00 a.m. on the morning of the accident,and parked his vehicle, described as being possibly a brown Ford Bronco,in the garage of the residence, where it had not been moved again sincethat time. Further, the caller indicated that the vehicle appeared to havesustained damage to the grill area. Through his investigation, affiantdetermined that a "Springmont" street was located in the Springmont subdivisionof Old Hickory, Wilson County Tennessee. After responding to the area withofficers of the Wilson County Sheriff's Department, affiant received additionalinformation from Officer Watson that a subject name "David Bowling" ...had received a parking ticket on a 1984 Ford truck ... on March 16, 1990Affiant responded to that location, and while attempting to locate anyone living at said residence, observed a brown Ford truck backed into abay of the house's garage. (emphasis added)
[1][2] While examining the first issue concerning Officer Poteete'saction in looking into the defendant's garage, we note that the Constitutionof the State of Tennessee guarantees "[t]hat the people shall be securein their persons, houses, papers and possessions, from unreasonable searchesand seizures ...". Tenn. Const. Art. I, § 7. This same guarantee isembodied in the Fourth *341 Amendment of the United States Constitution.The touchstone of unreasonable search and seizure analysis is "whethera person has a 'constitutionally protected reasonable expectation of privacy'". California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d210 (1986); see Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507,516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).
Through Katz and its progeny, the United States Supreme Court has pronounceda two-part inquiry in determining an individual's constitutionally protectedreasonable expectation of privacy. First, has the individual manifesteda subjective expectation of privacy in the object of the challenged search?Second, is society willing to recognize that expectation as reasonable?Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986);Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220(1979); Katz, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576. Suchanalysis has been applied in this state. See State v. Roode, 643 S.W.2d651, 652-3 (Tenn.1982).
[3][4] In determining whether the defendant manifested a subjectiveexpectation of privacy, we are aware that neither the Fourth Amendmentnor Article I, Section 7 protects what a citizen "knowingly exposes tothe public". See Katz, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d576; State v. Marcus Ellis, No. 01-C-01-9001-CR-00021, 1990 WL 198876 RobertsonCounty (Tenn.Crim.App. filed December 12, 1990, at Nashville). That whicha citizen knowingly exposes to the public is that in which he or she hasnot manifested subjective expectation of privacy.
However, in the instant case it is apparent that the defendant didnot knowingly expose the truck to the public. His truck was behind a solid,completely closed garage door. While the only other garage door was open,it had been raised a mere one and a half feet to allegedly enable the dogto come and go from the garage. Therefore, the defendant clearly manifesteda subjective expectation of privacy.
[5][6] The issue hence becomes whether society is prepared to recognizeas reasonable the defendant's expectation of privacy when he left the garagedoor open one and a half feet. "In pursuing this inquiry, we must keepin mind that '[t]he test of legitimacy is not whether the individual choosesto conceal assertedly "private" activity,' but instead 'whether the government'sintrusion infringes upon the personal and societal values protected bythe Fourth Amendment.' " Ciraolo, 476 U.S. 207, 212, 106 S.Ct. 1809, 1812,90 L.Ed.2d 210 (quoting Oliver v. United States, 466 U.S. 170, 182-83,104 S.Ct. 1735, 1743, 80 L.Ed.2d 214 (1984)). Society has recognized thatthe resident of a home usually has a reasonable expectation of privacyin a garage. See Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76L.Ed. 951 (1932). Therefore, in such areas where a reasonable expectationof privacy is usually accorded, "[a]n officer is permitted the same licenseto intrude as a reasonably respectful citizen". State v. Seagull, 95 Wash.2d898, 632 P.2d 44, 47 (1981).
While the factual situation makes this a case of first impression inTennessee, support exists for our conclusion in the decisions of our sisterstates. See e.g. State v. Cloutier, 544 A.2d 1277 (Me.1988). (Since officerdid not bend over or move any object in order to improve his view, hisobservation of the marijuana while simply passing by the open window wasnot a search for purposes of Fourth Amendment); State v. Adams, 378 So.2d72 (Fla.App.1979) (Officer's standing on chair and peering into windowwas held to violate occupants' reasonable expectation of privacy); Peoplev. Cagle, 98 Cal.Rptr. 348, 351, 21 Cal.App.3d 57, 66 (1971) (Officer strayedfrom "normal access routes" when he peered into a bathroom window. Hisaction was an unreasonable invasion of privacy).
It is the determination of this Court that Officer Poteete's actionsof getting on his hands and knees with his head very near to the groundand looking into the garage are not those actions which society would permitof a reasonably respectful citizen. In making such a judgment, this Courthas attempted to strike a balance between the individual's reasonable*342expectation of privacy and the permissible actions of an officer of thelaw.
We take great caution in rendering impermissible the actions of anofficer employing only his or her bare physical faculties. However, OfficerPoteete did not just sway to one side or the other to observe something.He did not even merely bend over slightly to observe something. He gotdown on his hands and knees with his head almost touching the ground andlooked into the garage. We, therefore, conclude that the officer's actionsconstituted a warrantless search which violated the personal and societalvalues protected by the Fourth Amendment and Article I, Section 7.
[7] While the State brought this appeal, the defendant raised threeadditional matters. The second issue before us is whether the search warrantcontained reckless misrepresentations of material facts. It is true thatOfficer Poteete reported in the search warrant affidavit certain informationwhich later was discovered to be incorrect. He stated that the anonymousinformer had told the police that the car would be parked in the garage.The informant had actually told the officers that the truck would be parkedbehind the house. In addition, the officer reported that the defendanthad received a parking ticket on the very same day of the accident, March16, 1990. Actually, the defendant had received a parking ticket on February28, 1990, and had paid for that ticket on March 16, 1990. Faced with thesefacts, the trial court determined that these incorrect statements weremade with a "reckless disregard for the truth". The record supports thisfinding.
The Tennessee Supreme Court has set forth two circumstances which authorizeimpeachment of a search warrant affidavit: (1) when "a false statement[is] made with intent to deceive the Court, whether material or immaterialto the issue of probable cause, and (2) [when] a false statement, essentialto the establishment of probable cause, [is] recklessly made". State v.Little, 560 S.W.2d 403, 407 (Tenn.1978). The trial court concluded thatneither of these circumstances was present in the instant case. We agreewith that conclusion.
At the evidentiary hearing the officers simply had no explanation forthe mistakes in the affidavit. Although the trial court expressed concernthat the facts reported by the informant may have been somehow changedto fit what was actually found, the trial court did not conclude that therewas an intent to deceive the court. Having reviewed the entire situationas reflected in the record, we agree with the trial court's determination.
We further determine that the trial court appropriately dismissed thesecond circumstance also. Although the inaccuracies were reckless misrepresentations,they were not reckless misrepresentations of material fact. The informationregarding where the vehicle was parked and when a parking ticket was receivedwere not essential to the assessment of whether the affidavit stated probablecause. Essential facts were, for example, that the informant reported thedefendant coming in late on the night of the accident; that the informantmentioned that the vehicle was a Ford Bronco; and that the informant statedthe vehicle had sustained front end damage. Unlike the information regardingthe parking ticket and the place where the vehicle was parked, these factsgreatly aided the magistrate in determining whether the affidavit statedprobable cause. As such, this contention provides no basis for invalidatingthe search warrant.
[8] The third issue raised on appeal is whether the search warrantaffidavit, absent the information attained from the contested search, wouldbe sufficient to support probable cause. We concluded above that the contestedsearch was a warrantless search in violation of the Fourth Amendment ofthe United States Constitution and Article I, Section 7 of the TennesseeConstitution, and consequently, the information attained therefrom wastainted and inadmissible. The trial court held and the State concedes thatif the information attained from the contested search was inadmissible,the search warrant affidavit would be insufficient to support a findingof probable cause. We affirm this determination.
In State v. Jacumin, 778 S.W.2d 430 (Tenn.1989), our Supreme Courtrejected the totality of circumstances test, which the United States SupremeCourt expounded in *343 Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317,76 L.Ed.2d 527 (1983). Our Supreme Court instead reaffirmed the two-prongAguilar-Spinelli test as the standard to be applied to a search warrantbased upon an unknown or unidentified citizen informant. Jacumin, 778 S.W.2d430, 436. The latter test requires that the affidavit establish: (1) theinformant's "basis of knowledge" and (2) the informant's "veracity". Jacumin,778 S.W.2d 430, 432; see Spinelli v. United States, 393 U.S. 410, 89 S.Ct.584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509,12 L.Ed.2d 723 (1964). Essentially, the first prong "inquire [s] as tohow the informant concluded the criminal activity [had taken] place: 'Howdoes he [or she] know that?' The second 'prong' inquire[s] into the informant'sveracity: 'Why do I believe him [or her]?' " Raybin, Criminal Practiceand Procedure, § 18.58, p. 584.
The affidavit entirely fails to indicate the basis of the informant'sknowledge as it makes no mention of how the informant obtained the information.Since the first prong was clearly not established, there is no need toanalyze whether the second prong was proven. We conclude that the trialcourt correctly found the information in the affidavit, excluding the evidencefrom the contested search, insufficient to support probable cause.
The fourth and final issue before us is whether the appeal in thiscase was timely filed and, therefore, should not be dismissed. This Courtexamined this issue when the defendant filed a Motion to Dismiss Appealand Memorandum in Support Thereof on January 17, 1992. On February 5, 1992,this Court denied the motion, declaring that justice required the appealto proceed. We reaffirm that determination today. Consequently, this issueis without merit.
Having examined each contention raised, it is the determination ofthis Court that the trial court's order suppressing certain evidence beaffirmed.WADE and TIPTON, JJ., concur.
Tenn.Cr.App.,1993.
State v. Bowling
END OF DOCUMENT
===========================
Tenn. Op. Atty. Gen. No. 95-125
Office of the Attorney General
State of Tennessee
*1 Opinion No. 95-125
December 22, 1995Constitutionality of a City Placing Parking Meters on Land Adjacentto Federal Highways, Enforcement of Citations, and Ensuing Fines
Hon. David A. Marlowe
General Sessions Judge
Franklin County Courthouse
Winchester, TN 37398
QUESTIONS
1. Is the City of Winchester preempted by any rule of law, federal orotherwise, from regulating parking spaces immediately adjacent to, borderingon, or in the federal right-of-ways of U.S. Highways 64 West and 41-A North?
2. If a city judge issues a bench warrant for the arrest of an individualwho does not appear in court as commanded on a parking ticket left undera car's windshield wiper, will a cause of action exist against the cityand/or city judge for false imprisonment, malicious prosecution or a violationof the person's civil rights upon arrest?
3. If the city has the authority to regulate these parking spaces,may the city fine elected county officials for parking violations, duringthe business day? Do such fines violate the constitutional prohibitionagainst diminution of salary while in office as to elected judges?
OPINION
1. The City of Winchester is not preempted by any rule of law from regulatingparking spaces immediately adjacent to, bordering on, or in the federalrights-of-way of U.S. Highways 64 West and 41-A North.
2. When a city judge executes a warrant within his official capacityand discretion, no tort liability arises.
3. Elected officials, like the rest of the population, can be finedfor traffic violations. These fines do not violate the constitutional prohibitionagainst diminution of salary while in office.
ANALYSIS
1. The City of Winchester may regulate parking along U.S. Highways 64West and 41-A North. 23 U.S.C.A. §§ 103, 114, 116 (WEST 1966).Nowhere in federal law is the federal policing of highways or the regulationof traffic contemplated. The federal government instead funds federal highways,leaving the police power to the several states.
2. There is no cause of action for false imprisonment, nor any othercause of action against a city judge or city in the circumstances described.The rule in Tennessee is "that a civil action for damages will not lieagainst a judge of general jurisdiction for his judicial acts if such actswere committed within the jurisdiction of his court. If done within hisjurisdiction neither the correctness of nor motive behind the acts affectsimmunity." Heath v. Cornelius, 511 S.W.2d 683, 684 (Tenn. 1974). Clearly,a municipal judge issuing an arrest warrant for non-compliance with a localordinance falls squarely within this rule.
3. Article VI, Section 7 of the Tennessee Constitution, provides "TheJudges of the Supreme or Inferior Courts, shall, at stated times, receivea compensation for their services, to be ascertained by law, which shallnot be increased or diminished during the time for which they are elected."This provision only applies to the Supreme and Inferior Courts. Courtswhich exercise purely municipal authority are neither Supreme nor InferiorCourts. Town of South Carthage v. Barrett, 840 S.W.2d 895, 897-898 (Tenn.1992). Therefore, Article VI, Section 7 of the Tennessee Constitution isnot applicable.
*2 In addition, in Forester v. White, 484 U.S. 219, 227, 108 S.Ct.538, 544, 98 L.Ed.2d 555 (1988), the Court drew "the line between trulyjudicial acts, for which immunity is appropriate, and acts that simplyhappen to have been done by judges." The court adopted a functional testfor determining what constitutes a judicial act, looking to "the natureof the functions with which a particular official or class of officialshas been lawfully entrusted." Id. at 224, 108 S.Ct. at 542, 98 L.Ed. at_____. Parking cars is not an official function peculiar to judges. Consequently,judges enjoy no constitutional immunity from parking regulations.
Morever, such immunity has not been granted by statute in Tennessee.Tenn. Code Ann. § 55-8-103 requires obedience to traffic laws. Tenn.Code Ann. § 55-8-106 provides that traffic laws apply to all vehiclesowned or operated by public employees. The only exceptions to this ruleare found in Tenn. Code Ann. § 55-8-107 (persons working on highways)and Tenn. Code Ann. § 55-8-108 (authorized emergency vehicles whenresponding to an emergency). Since judges do not work on highways or answeremergency calls in authorized emergency vehicles, they have no statutoryimmunity to park cars unlawfully.
Further, parking fines are not an unconstitutional diminution of judges'salaries while in office. This issue has never been addressed in any reportedTennessee case, but other jurisdictions with similar constitutional provisionshave uniformly held that diminution of judicial salaries is only unconstitutionalwhen it is direct or discriminatory, that is, aimed at judges alone.
For example, in Batesville Casket Co. v. Fields, 155 S.W.2d 743, 745(Ct. App. Ky. 1941), the court reasoned that the garnishment of a judge'swages was not an unconstitutional diminution, stating "if the office hasincurred obligations from the salary he is otherwise entitled to receive,he will not be protected under the guise that application of his salaryto a debt through legal process has the effect of reducing his salary".Like the Kentucky garnishment law at issue in Batesville Casket, a cityparking ordinance applies generally to the community and is not a burdenborne by judges alone or in any way an attack on judicial independence.
Federal courts have also addressed similar issues under the CompensationClause. In Atkins v. U.S., 556 F.2d 1028, 1045 (Ct. Cl. 1977), cert. denied,434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751, the court held "Indirect,nondiscriminatory diminutions of judicial compensation ... fall outsidethe protection of the Compensation Clause ..." Atkins relied on O'Malleyv. Woodrough, 59 S.Ct. 307, 838 U.S. 277, 83 L.Ed. 1289, where the courtheld that judges must pay income tax since "to subject them to a generaltax is merely to recognize that judges are also citizens, and that theirparticular function in government does not generate an immunity in sharingwith their fellow citizens the material burden of the government ..." 307U.S. at 282, 59 S.Ct. at 840, 83 L.Ed. at 1294. The court noted that tosuggest otherwise "is to trivialize the great historic experience on whichthe framers based the safeguards of [the Compensation Clause]". Id. Asthe court observed in Duplantier v. U.S., 606 F.2d 654, 669 (5th Cir. 1979),cert. denied, 101 S.Ct. 854, "although it is true that ... civil penaltyprovisions ... may reduce a judge's disposable income, that penalty cannotbe fairly described as a diminution of compensation". Parking fines asa civil penalty are imposed indiscriminately upon the citizenry and cannotbe described as an unconstitutional reduction of judges' compensation.*3 Charles W. Burson
Attorney General & ReporterMichael E. Moore
Solicitor GeneralKathy Morante
Deputy Attorney GeneralMerrilyn Feirman
Assistant Attorney General
Tenn. Op. Atty. Gen. No. 95-125, 1995 WL 767273 (Tenn.A.G.)
END OF DOCUMENT
========================
Thornburg v. Thornburg
1991 WL 47487
Tenn.App.,1991.
April 9, 1991. (Approx. 2 pages)--------------------------------------------------------------------------------
Only the Westlaw citation is currently available.
SEE COURT OF APPEALS RULES 11 AND 12
Court of Appeals of Tennessee, Eastern Section.
Kenneth E. THORNBURG, Plaintiff-Appellant,
v.
Trina J. THORNBURG, Defendant-Appellee.
No. 151.
April 9, 1991.Greene Chancery, Dennis H. Inman, Chancellor.
T. Wood Smith of Greeneville for appellant.
Joyce Mills Ward of Morristown for appellee.
OPINION
GODDARD, Judge.
*1 Kenneth Estel Thornburg appeals that portion of a divorce decreewhich, although awarding the parents joint custody of the parties' minorchild, (1) made his wife, Trina J. Thornburg, the primary custodian, (2)awarded her a paid-up life insurance policy naming the child as beneficiary,and (3) divided the marital assets. Mrs. Thornburg raises an issue, insistingthat she is entitled to an attorney fee incurred incident to this appeal.
The parties were married in December 1985, and were separated in September1988. Thereafter, the parties attempted a reconciliation which was unsuccessful,and still later Mrs. Thornburg moved with the minor daughter to Atlantawhere she had found employment with the United States Department of Agriculture.
Mrs. Thornburg's net income is approximately $15,100 per year and Mr.Thornburg's approximately $27,600. Mrs. Thornburg has a separate estateof some $8000, while Mr. Thornburg's separate estate, according to Mrs.Thornburg's evaluation, is $400,000, and according to his $151,000. Italso appears from Mr. Thornburg's testimony that part, if not all, of hisestate is held in trust. The income is payable to his father and his fatherhas the right to encroach upon the corpus.
After a full evidentiary hearing the Court granted a divorce and, amongother things, decreed the matters hereinbefore set out.
We now turn to the issues on appeal. As to the first, Mr. Thornburgearnestly insists that the Trial Court did not apply the teachings of Seesselv. Seessel, 748 S.W.2d 422 (Tenn.1988), and its progeny. [FN1] These caseshold that in a post-divorce petition seeking to remove a child or childrento another state, or to prevent their removal, the burden of proof relativeto the best interest of the child lies with the petitioning party. It appearsthat these cases would only be applicable when a divorce had been previouslygranted and would not apply to a determination where the child was livingwith a parent outside of the state when custody was initially awarded.
However, even if the cases do apply to the present situation, we thinkit certainly is implicit in the Chancellor's award that he found it inthe best interest of the minor child that the primary custodian be hermother, then living in Atlanta. We are satisfied the experienced Chancellorwas aware at the time he made his custody decree that the polestar in awardingcustody is the best interest of the child. Although there was considerableproof, both pro and con, as to the fitness of the parents, given the deferencewe must accord the Chancellor in matters of credibility, we cannot concludethat the evidence preponderates against his decree as to custody. Rule13, Tennessee Rules of Appellate Procedure.
The second issue takes exception to the Chancellor's finding that apaid-up life insurance policy owned by Mr. Thornburg, insuring Mrs. Thornburgwith Mr. Thornburg as beneficiary, should become the property of Mrs. Thornburgwhen in fact it was purchased with funds from his separate estate (proceedsfrom his mother's life insurance policy).
*2 The proof shows that the policy in question was a $30,000 policywhich was in reality bought as a tax shelter. Mr. Thornburg immediatelyborrowed $14,000 against the policy with the dividends which accrued payingthe interest owed.
The Chancellor was of the opinion that upon the divorce being granted,Mr. Thornburg had no insurable interest as to Mrs. Thornburg. Counsel forMr. Thornburg cites authority to the contrary, and while we will assumethat Mr. Thornburg had such an insurable interest, we nevertheless findunder all the circumstances the Court acted properly.
Mr. Thornburg testified that the policy has a value of $16,000, thedifference between the amount borrowed and its face amount. We are inclinedto believe that given Mrs. Thornburg's age and life expectancy, its valuewould be considerably less.
However that may be, the Court did not award Mrs. Thornburg the proceedsof the policy but merely made her the owner with the parties' daughteras beneficiary. Implicit in the order, we believe, is the command thatMrs. Thornburg may not change the beneficiary unless her daughter predeceaseher, nor may she cash in the policy or borrow additional monies on it.Thus, in the normal course of events the policy would not enrich Mrs. Thornburg,but rather the parties' daughter.
As to Mr. Thornburg's final issue, upon excluding the insurance policy,it appears the marital estate was composed of the following:
The appreciation of the home $ 3,365
The appreciation of Mr. Thornburg's stock
option plan 17,811
Personality:
Antiques and computer (less debt) 3,157
Tools & Equipment (less debt) 4,155
-------
Total $28,488
The Court awarded Mrs. Thornburg $10,000, plus the antiques and computer.Mr. Thornburg retained ownership of his stock option plan and home, aswell as tools and equipment. The decree, after providing that if any ofthe personal property is encumbered by a lien the party receiving the propertywould be responsible for the indebtedness, provided the following:
6. All marital debts shall be the joint responsibility of the parties.Any indebtedness incurred by either party after separation shall be theresponsibility of that party. However, the phone charges shall be considereda joint indebtedness.
Thus, Mrs. Thornburg received $13,157 and Mr. Thornburg $15,331.
Viewing the division of marital property in this light, it is apparentthat Mr. Thornburg's complaint as to the division of property is meritless.
In conclusion, as to Mr. Thornburg's issues, we note that he contendshe should be repaid some $8000 expended on Mrs. Thornburg's college educationwhich she completed shortly before filing this divorce action. While itmay be true that he did make this expenditure, we observe that had shenot received an education, in all likelihood she would not have been ableto find substantial employment and he would have been burdened with atleast temporary alimony for a period of years.
*3 Mr. Thornburg also complains of telephone calls in the amount ofapproximately $800, but the Chancellor, as already noted, required Mrs.Thornburg to pay half of this amount. Moreover, it appears that many ofthe calls were for the purpose of permitting Mr. Thornburg to talk to hisdaughter or to schedule visitation.
Mr. Thornburg also contends that he incurred $900 in parking ticketsfrom the University of Tennessee while Mrs. Thornburg was attending classes.It is not entirely clear that Mr. Thornburg has in fact paid the tickets.[FN2] Moreover, according to the tickets the only penalty provided forfailure to pay is that the car would be towed when again parked on Universityproperty.
Mr. Thornburg also complains that Mrs. Thornburg withdrew $1250 whenshe separated and moved to Atlanta. The record does not show whether anymoney was left in the joint account for the benefit of Mr. Thornburg. Assuming,however, there was not, even if we consider this amount as well as the$900 in parking tickets as assets awarded Mrs. Thornburg, it would makethe total Mrs. Thornburg received from marital property still less thanthat received by Mr. Thornburg.
Finally, Mr. Thornburg complains that the Court in awarding $10,000for Mrs. Thornburg's interest in his stock savings plan and the maritaldwelling did not take into consideration the $10,000 Mr. Thornburg borrowedfrom the stock savings after the separation of the parties and before thedivorce was granted. The proof shows that this money was borrowed for thepurpose of paying child support pendente lite, marital bills and his attorneyfees.
Even if we were inclined to give Mr. Thornburg some credit as to themarital bills, there is no testimony which separates those bills from theamounts spent on child support and attorney fees for which he clearly wouldnot be entitled to credit.
Mrs. Thornburg raises the issue that she is entitled to attorney feeson appeal either because this is a frivolous appeal or because of her impecuniouscircumstances as compared to her husband's.
We do not believe this is a frivolous appeal, but are persuaded, giventhe fact that Mr. Thornburg earns almost twice as much as Mrs. Thornburgand his assets, even using his evaluation, are almost 20 times as largeas hers, that it is appropriate to remand the case to the Chancery Courtfor Greene County as was done in Folk v. Folk, 210 Tenn. 367, 357 S.W.2d828 (1962), for an evidentiary hearing to determine whether counsel feesare appropriate and, if so, the amount thereof.
For the foregoing reasons the Trial Court is affirmed and the causeremanded for fixing of attorney fees and collection of costs below. Costsof appeal are adjudged against Mr. Thornburg and his surety.SANDERS, P.J. (E.S.), and MCMURRAY, J., concur.
FN1. Rogero v. Pitt, 759 S.W.2d 109 (Tenn.1988); Pearman v. Pearman,781 S.W.2d 585 (Tenn.App.1989).
FN2. Q Mr. Thornburg, has it been left to you to pay many parking ticketsthat your wife incurred while she was attending college?
FNA That's correct. Those total approximately $900 worth, and they arelisted in my name.
FNQ When you asked your wife about this what did she tell you?
FNA She said, "They're not in my name. I'm not worried about it."
FNQ Has she in fact paid any of those to you?
FNA No, sir, she has not. There have been some other tickets that havebeen paid but those particular ones have not been paid.
Tenn.App.,1991.
Thornburg v. Thornburg
END OF DOCUMENT
==============================
=========================
Seeherman v. Com.
597 A.2d 291
Pa.Cmwlth.,1991.
Submitted July 12, 1991. Decided Sept. 12, 1991. (Approx. 4 pages)Commonwealth Court of Pennsylvania.
Stephen L. SEEHERMAN, Appellant,
v.
COMMONWEALTH of Pennsylvania, Appellee.
No. 1517 C.D. 1990
Submitted July 12, 1991.
Decided Sept. 12, 1991.Defendant was found guilty of three parking violations and ordered topay a fine and costs in each case after trial de novo in the Common PleasCourt, Luzerne County, Nos. 624, 870 and 1267 of 1989, Donald O'Malley,Senior Judge. Defendant appealed. The Commonwealth Court, No. 1517 C.D.1990, Colins, J., held that: (1) citations issued were valid; (2) summaryproceedings were timely filed; (3) parking meters were authorized by localordinance; and (4) meters in question were not antiquated or malfunctioningso as to excuse defendant's failure to pay parking citations.
Affirmed.
West Headnotes
[1] KeyCite this headnote
48A Automobiles
48AVII Offenses
48AVII(B) Prosecution
48Ak351 Charging Instrument; Summonsor Ticket
48Ak351.1 k. In General.
(Formerly 48Ak351)Parking citations issued were valid, where citations included citationof specific section and subsection of statute or ordinance allegedly violated.Rules Crim.Proc., Rule 53, 42 Pa.C.S.A.
[2] KeyCite this headnote
48A Automobiles
48AVII Offenses
48AVII(B) Prosecution
48Ak351 Charging Instrument; Summonsor Ticket
48Ak351.1 k. In General.
(Formerly 48Ak351)Parking tickets themselves were not citations and did not serve to institutesummary proceedings, and law enforcement officer was required to take actionpursuant to summary proceedings only when owner of vehicle failed to respondto citations. Rules Crim.Proc., Rules 61-64, 90, 95, 42 Pa.C.S.A.; 42 Pa.C.S.A.§ 5553(a).
[3] KeyCite this headnote
48A Automobiles
48AI Control, Regulation, and Use in General
48Ak12 k. Parking or Standing.Deletion of requirement that parking meter zones be placed on trafficcontrol maps did not affect validity of other provisions of ordinance authorizingplacement of parking meters.
[4] KeyCite this headnote
48A Automobiles
48AVII Offenses
48AVII(A) In General
48Ak333 k. Stopping, Standing, and Parking.48A Automobiles
48AVII Offenses
48AVII(B) Prosecution
48Ak353 k. Presumptions and Burden ofProof.Allegation of nonfunctioning meter was affirmative defense to criminalaction for failure to pay parking citations and burden of proving malfunctionrested on person making defense.
[5] KeyCite this headnote
48A Automobiles
48AVII Offenses
48AVII(B) Prosecution
48Ak355 Weight and Sufficiency of Evidence
48Ak355(7) k. Stopping,Standing, and Parking.Parking violator failed to prove with specific evidence that metersin question were antiquated or that they were malfunctioning so as to excusehis failure to pay parking tickets, where there was no evidence to indicatecomplaints to city with respect to meters at which violator was parkedwhen tickets were issued and parking meter repairman testified that parkingmeters in question were checked once a year for accuracy with state-inspected,calibrated time clock.
**291 *395 Stephen L. Seeherman, pro se.
Correale F. Stevens, Dist. Atty., and Mari M. Van Wie, Asst. Dist.Atty., for appellee.Before COLINS, and BYER, JJ., and BARBIERI, Senior Judge.
COLINS, Judge.
Stephen L. Seeherman (Seeherman) appeals from an order of the Courtof Common Pleas of Luzerne County (trial court) which found him guiltyof three parking violations following a trial de novo. We affirm.
On September 24, 1988 at 10:44 a.m., Officer Edward Soltis of the Wilkes-BarrePolice Department observed a silver Audi, registration number 418, parkedin a meter Zone C-25 on South Main Street. As there **292 was no time registeredon the meter, Officer Soltis issued a parking ticket and placed it on thecar. Subsequently, Seeherman failed to pay the ticket. On October 3, 1988,a computer check through the Department of Transportation (DOT) identifiedSeeherman as the owner. On November 1, 1988, Citation No. C8440 was filedwith District Justice Michael Colins, charging Seeherman with a parkingmeter violation under Section 29, Subsection 121 of the Wilkes-Barre CityOrdinance (ordinance). On March 2, 1989, the District Justice found Seehermanguilty and ordered him to pay a $10.00 fine and $22.50 in costs. Seeherman'stimely appeal to the trial court became Criminal Information No. 624 of1989.
On October 22, 1988 at approximately 2:04 p.m., Officer Soltis observeda brown Mazda, registration number 438453 parked on South Franklin Streetin meter Zone K-35. *396 There was no time on the meter. Officer Soltisissued a parking ticket and placed it on the car. Afterwards, the ownerfailed to pay this ticket as well. On December 2, 1988, Seeherman was identifiedas the owner by a DOT computer check. On December 30, 1988, Citation No.D2023 was filed with District Justice Michael Colins, charging Seehermanwith a parking violation under Section 29, Subsection 121 of the ordinance.(This citation was subsequently amended on March 15, 1989 and on April11, 1989 regarding the type of vehicle involved). On April 11, 1989, theDistrict Justice found Seeherman guilty and ordered him to pay a $10.00fine and $22.50 in costs. Seeherman filed a timely appeal to the trialcourt and that became Criminal Information No. 1267 of 1989.
On December 2, 1988 at 9:25 a.m., Officer Arthur Kemmerer of the Wilkes-BarrePolice Department observed a Chevrolet, registration number 438453, parkedin meter zone C-29 on South Main Street. Noting that the meter did nothave any time registered on it, the officer issued a parking ticket, whichthe owner later failed to pay. On January 10, 1989, DOT identified Seehermanas the owner. On January 31, 1989, a citation was filed against Seeherman,charging him with a meter violation under Section 29, Subsection 121 ofthe ordinance. On March 27, 1989, Seeherman was found guilty by DistrictJustice Michael Colins and ordered to pay a $10.00 fine and $22.50 in costs.Seeherman's timely appeal to the trial court became Criminal InformationNo. 870 of 1989.
On March 7, 1990, a hearing de novo on the consolidated cases was heldbefore the Honorable Donald O'Malley. Seeherman was found guilty in allthree cases and was ordered to pay a $10.00 fine and $22.50 in costs foreach case. We affirm.
Seeherman raises a host of issues to justify why he should not paythe $77.50 in parking tickets. We shall briefly discuss each of them.
[1] *397 First, Seeherman alleges that the citations issued were faciallydefective. This contention is without merit. The citations were valid pursuantto Pa.R.Crim.P. 53, which requires that citations include "a citation ofthe specific section and subsection of the statute or ordinance allegedlyviolated, together with a summary of the facts sufficient to advise thedefendant of the nature of the offense charged." The three citations listCity Ordinance 29, Subsection 121 as the law violated. Seeherman contendsthat City Ordinance 29, Subsection 121 is merely an index to a codificationof ordinances of the City of Wilkes-Barre. This contention is wholly erroneous.Section 29, Subsection 121 of the ordinance explicitly states: "No owneror operator of any vehicle shall cause, allow or permit such vehicle tobe parked overtime or beyond the period of legal parking time as indicatedor set forth on the instructions of such meter." The citations properlyprovided Seeherman with notice of the statute that he violated. [FN1]
FN1. Seeherman correctly states that Citation 8840 does not list a dateof issue. Pursuant to Pa.R.Crim.P. 90:
A defendant shall not be discharged nor shall a case be dismissed becauseof a defect in the form or content of a complaint, citation, summons, orwarrant ... unless the defendant raises the defect before the conclusionof the summary trial and the defect is prejudicial to the rights of thedefendant.
In Commonwealth v. McGinley, 386 Pa.Superior Ct. 547, 563 A.2d 518 (1989),the Superior Court has interpreted Rule 90 to require manifest and palpableharm. Seeherman has failed to show that any such harm existed here.
[2] **293 Seeherman's second contention is that the citations were nottimely filed. Again, we disagree. Pa.R.Crim.P. 95, governs the proceduresfor parking violations. [FN2] Pursuant *398 to 42 Pa.C.S. § 5553(a),"proceedings for summary offenses under Title 75 (relating to vehicles)must be commenced within 30 days after the commission of the alleged offenseor within 30 days after the discovery of the commission of the offenseor the identity of the offender, whichever is later, and not thereafter."
FN2. Proceeding in Summary Cases Charging Parking Violations.
(a) Political subdivisions may use parking tickets to inform defendantsof parking violations and to offer defendants an opportunity to avoid criminalproceedings by paying an amount specified on the ticket within the timespecified on the ticket. When a political subdivision does use parkingtickets and a ticket has been handed to a defendant or placed on a vehiclewindshield, a criminal proceeding shall be instituted only if the defendantfails to respond as requested on the ticket. In that event, the criminalproceeding shall be instituted by a law enforcement officer filing a citationwith the proper issuing authority. Upon the filing of the citation thecase shall proceed in the same manner as other summary cases institutedby filing a citation, in accordance with Rules 61-64.
The record reveals that Officer Soltis issued the first ticket in questionon September 24, 1988. Seeherman failed to pay the ticket or otherwiserespond as required on the ticket. On October 3, 1988, Seeherman was identifiedas the owner of the vehicle in violation through a DOT computer check.Citation No. C8440 was filed on November 1, 1988, 28 days after Seeherman'sidentity was ascertained. Officer Soltis wrote the second ticket on October22, 1988. The ticket was not paid; neither did Seeherman respond. Seehermanwas identified as the owner of the vehicle through DOT on December 2, 1988.Citation No. D2023 was filed with the District Justice on December 30,1988, 28 days later. The third ticket was written by Officer Kemmerer onDecember 2, 1988. Again, Seeherman did not pay the ticket. Seeherman wasidentified as the owner on January 10, 1989, through DOT. The citationwas filed against Seeherman on January 31, 1989, 21 days later.
The tickets themselves are not citations, and they do not serve toinstitute summary proceedings. According to Pa.R.Crim.P. 95, law enforcementofficers are required to take action only when the owner of the vehiclefails to respond. At that time, they are required to obtain from DOT thename of the owner of the vehicle. [FN3] Seeherman's contention that thecitations were not timely filed has no basis in fact.
FN3. See Comment to Pa.R.Crim.P. 95.
[3] Seeherman next contends that there was no local ordinance in effectgoverning the placement of parking meters. He bases this contention onthe fact that Section 2, Article X of the ordinance, which required thatparking *399 meter zones be printed on the traffic control maps of thecity, was later amended by Ordinance No. 4-78, Section 2, February 9, 1978,which deleted that requirement. Seeherman would have this Court believethat because parking meter zones are not required to be printed on trafficcontrol maps, they do not exist. This defies the law of statutory construction.Parking meters are authorized by Ordinance 2-75, Sections 2-10, March 6,1975. The provisions of that ordinance are severable. [FN4] Therefore,the deletion of the requirement that parking meter zones be placed on trafficcontrol maps does not affect the validity of the other provisions of theordinance. City Council's intent that there be parking meters in the Cityof Wilkes-Barre and that the same are authorized on the westerly side ofthe second block of South Main Street is evidenced by Ordinance No. 10-86,Section 1, January 23, 1986. Parking meters are also authorized by 29 Wilkes-BarreCode 117-125.
FN4. Ordinance 2-75, Art. XVI, Sec. 1.
[4][5] Lastly, Seeherman alleges that the parking meters themselveswere antiquated **294 and not in good working order. The issue of determiningwhose burden it is to determine the functioning of a parking meter is oneof first impression for this Court. We hold that the allegation of a non-functioningmeter is an affirmative defense, and that the burden of proving the malfunctionrests on the person making the defense. In the instant case, the recordreflects that Seeherman's witness, Mr. Sam Macekura, a parking meter repairman,testified that the parking meters in question were checked once a yearfor accuracy with a state inspected, calibrated time clock. Testimony alsorevealed that when parking violators alleged that meters were broken, policesent repair crews to investigate and make necessary repairs. There is noevidence to indicate specific problems with meters K-35, C-25, or C-29,the meters at which Seeherman was parked when his tickets were issued.Seeherman has failed to prove with specific evidence that the meters inquestion were antiquated or that they were malfunctioning.
*400 Accordingly, we find Seeherman's appeal frivolous and entirelywithout merit and affirm the order of the trial court.FN5. This Court notesthat there has been no request for counsel fees and costs pursuant to Pa.R.A.P.2744. Therefore, the Court, at this time, cannot consider awarding thesame for a frivolous appeal.
ORDER
AND NOW, this 12th day of September, 1991, the order of the Court ofCommon Pleas of Luzerne County in the above-captioned matter is affirmed.
Pa.Cmwlth.,1991.
Seeherman v. Com.
END OF DOCUMENT
===========================
State v. Frye
2000 WL 1449878
Tenn.Crim.App.,2000.
Sept. 29, 2000. (Approx. 5 pages)--------------------------------------------------------------------------------
Only the Westlaw citation is currently available.
SEE RULE 19 OF THE RULES OF THE COURT OF CRIMINAL APPEALS RELATING TOPUBLICATION OF OPINIONS AND CITATION OF UNPUBLISHED OPINIONS.
Court of Criminal Appeals of Tennessee, at Knoxville.
STATE of Tennessee,
v.
Richard Allan FRYE.
No. E1999-01564-CCA-R9-RL.
Sept. 29, 2000.Appeal from the Criminal Court for Sullivan County, No. S42,445; PhyllisH. Miller, Judge.
Nat H. Thomas, Kingsport, TN, and Gilbert E. Torbett, Bristol, TN,for appellant, Richard Allan Frye.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney,Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General;and Robert H. Montgomery, Jr., Assistant District Attorney General, forappellee, State of Tennessee.GLENN, J., delivered the opinion of the court, in which WOODALL andWILLIAMS, JJ., joined.
OPINION
GLENN.
*1 This appeal arises from the order of the Sullivan County CriminalCourt upholding the district attorney general's refusal to accept the applicationof the defendant for pretrial diversion. The defendant asserts that thetrial court erred in failing to determine that the district attorney generalabused his discretion by relying on facts not supported by the evidenceand by failing to consider all relevant factors. We conclude that substantialevidence was before the district attorney general to support the validityof each of the four factors relied on in denying pretrial diversion andthat the district attorney general considered all relevant factors. Accordingly,the judgment of the trial court is affirmed.
The defendant, Richard Allen Frye, appeals by permission the orderof the Sullivan County Criminal Court upholding the district attorney general'srefusal to accept the defendant's application for pretrial diversion. Thedefendant alleges that the trial court erred in failing to determine thatthe district attorney general abused his discretion by relying on factorsnot supported by any substantial evidence and by failing to fully considerall relevant factors. We conclude that the trial court properly determinedthat the district attorney general acted within his discretion in denyingthe defendant's application for pretrial diversion. Accordingly, the judgmentof the trial court is affirmed.FACTS
The record establishes that the defendant drove James Wyant on December5, 1998, at approximately 5:30 a.m. to a business location on VolunteerParkway in Bristol, Tennessee. Wyant, a twenty-three-year-old, got outof the defendant's car, putting on a black, full-faced toboggan and glovesand taking a claw hammer with him. Wyant proceeded to break into a businesscalled "Wayne's." An alarm sounded when the front door of the businesswas broken, and the defendant drove away. Inside "Wayne's," Wyant brokea glass display case and stole a number of Beanie Babies valued at lessthan $500. The owner of the building heard the alarm and, upon investigating,saw Wyant standing close to a tree on the lawn of the Bristol TennesseeElectric Company, which was next door. The owner and his son wrestled Wyantto the ground and held him until the police arrived.
Wyant's first version of the events was that a man named "Greg" hadpicked him up in Glade Springs, Virginia. According to Wyant, it was Gregwho had the gloves, hammer, and toboggan and told him that they were goingto commit a burglary. Greg was supposed to wait for him in front of theelectric company and drive them both away after the burglary. Once thealarm sounded, Greg left. Wyant later admitted that the person who drovehim to the scene of the burglary was the defendant. Wyant claimed thatthe defendant threatened to perform a sexual act on him if he did not committhe burglary and that he was afraid the defendant would harm him. He alsoclaimed that the defendant had given him Valium and alcohol. Wyant statedthat he left a change of clothes, keys, and an electronic organizer inthe defendant's car. Still later, in a telephone conversation with DetectiveJim Breuer, Wyant claimed that the defendant had not been involved at all.After Detective Breuer warned Wyant of the seriousness of committing perjury,Wyant admitted that the defendant had asked him to lie and corroboratethe defendant's story.
*2 The defendant claimed that he let Wyant out of the car in frontof the electric company on Volunteer Parkway so that Wyant could urinateand that he had no idea Wyant planned a burglary until he heard the alarm.At that point, the defendant panicked and drove off. The defendant alsodisposed of all Wyant's belongings left in his car.
The defendant was indicted on March 17, 1999, for conspiracy to commitburglary, a Class E felony, and tampering with evidence, a Class C felony.The defendant, through counsel, applied for pretrial diversion, which wasformally denied by letter from the Office of the District Attorney Generaldated June 14, 1999. The defendant filed a writ of certiorari with theSullivan County Criminal Court in conformity with Tennessee Code AnnotatedSection 40-15- 105(b)(3) (Supp.1999), for review of the denial of his application,claiming that the district attorney general abused his discretion in refusingto grant the diversion request, and requesting an evidentiary hearing onthe matter. [FN1]
FN1. Evidentiary hearings on the petition for certiorari must be used"only to resolve any factual disputes raised by the prosecutor or the defendant..., but [trial courts are] not to hear additional evidence...." Statev. Curry, 988 S.W.2d 153, 157-58 (Tenn.1999). Here, the petition for certiorarifailed to identify any "disputed fact." Although at the hearing the partiesdisputed, initially, certain aspects of the defendant's prior convictionfor reckless driving, the defendant's petition for certiorari itself failedto justify the holding of a hearing.
Pursuant to the petition for certiorari, a hearing was held by the trialcourt on October 7, 1999. The hearing consisted solely of the argumentsof counsel, defense counsel being the first to argue, and the commentsand rulings of the court. No additional proof was presented. Followingthe hearing, the trial court determined that the district attorney generalhad not abused his discretion in denying the defendant's application andset the matter back on the docket. The defendant applied to the trial courtfor permission to appeal its order to this court, and the trial court grantedpermission to appeal. This interlocutory appeal is now before us for disposition.
ANALYSIS
Our legislature has provided that the decision to grant pretrial diversionshould rest within the discretion of the district attorney general. SeeTenn.Code Ann. § 40-15-105; see also State v. Curry, 988 S.W.2d 153,157 (Tenn.1999) ("[W]hether to grant pretrial diversion to a qualifieddefendant who is statutorily eligible is a determination that lies in thediscretion of the district attorney general."). The discretion vested inthe prosecutor is not unbridled; "[i]t must be exercised so as to servethe interests of justice." Pace v. State, 566 S.W.2d 861, 864 (Tenn.1978).Thus, upon proper application of the defendant, the decision of the prosecutoris subject to review by the trial court for abuse of prosecutorial discretion.See Tenn.Code Ann. § 40-15-105(b)(3). The decision of the prosecutoris presumptively correct, and the trial court will reverse that decisiononly upon a showing by the applicant that there has been a patent or grossabuse of prosecutorial discretion. See State v. Houston, 900 S.W.2d 712,714 (Tenn.Crim.App.), perm. app. denied (Tenn.1995) (citing State v. Hammersley,650 S.W.2d 352, 356 (Tenn.1983)). An abuse of discretion in this contextrequires that the record show "an absence of any substantial evidence tosupport the refusal of the District Attorney General to enter into a memorandumof understanding." Hammersley, 650 S.W.2d at 356; see also Curry, 988 S.W.2dat 158 ( noting that the record "must show an absence of any substantialevidence to support the refusal of the district attorney general to enterinto a memorandum of understanding before a reviewing court can find anabuse of discretion").
*3 Our supreme court has observed that "[t]he task thus imposed uponprosecutors of deciding which defendants are worthwhile candidates fordiversion is indeed a demanding one." Hammersley, 650 S.W.2d at 353. Itis demanding because, as stated by our supreme court:
Almost all criminal defendants, whether first offenders or not, wouldclaim remorse and ascribe to themselves a desire to walk the straight andnarrow if presented an opportunity to avoid prosecution; the responsibilityplaced upon prosecutors to pick and choose among the lot based upon a particularcandidate's amenability to rehabilitation or recidivism requires the exerciseof unusual powers of discrimination.
Id. While our legislature has defined a "qualified defendant" as onewho meets statutory requirements set out in Tennessee Code Annotated Section40- 15-105(a)(1)(B)(i), [FN2] the courts have provided guidance to prosecutorsin determining which defendants among those who pass the statutory requirementsare then suitable for pretrial diversion. See Curry, 988 S.W.2d at 157("One who is statutorily eligible is not presumptively entitled to diversion.").The factors that are relevant to the prosecutor's determination shouldfocus on the defendant's "amenability to correction." Id. (quoting Statev. Pinkham, 955 S.W.2d 956, 959-60 (Tenn.1997)). With this focus in mind,the prosecutor should consider the following:
FN2. According to this section, a "qualified defendant" must meet eachof the following requirements:
(a) The defendant has not previously been granted pretrial diversionunder the provisions of this chapter;
(b) The defendant does not have a prior misdemeanor conviction for whicha sentence of confinement is served or a prior felony conviction withina five-year period after completing the sentence or probationary programfor such prior conviction; and
(c) The offense for which the prosecution is being suspended is nota Class A or Class B felony, a sexual offense, driving under the influenceof an intoxicant as prohibited by § 55-10-401, or vehicular assaultas prohibited by § 39-13-106.
[T]he defendant's criminal record, social history, the physical andmental condition of a defendant where appropriate, and the likelihood thatpretrial diversion will serve the ends of justice and the best interestof both the public and the defendant.
Id. (relying on Hammersley, 650 S.W.2d at 355). Pretrial diversionrepresents the benevolence of the State in that diversion may result indismissal of the prosecution and expungement of the defendant's record.[FN3]
FN3. The applicable law states:
DISMISSAL WITH PREJUDICE. The trial court shall dismiss with prejudiceany warrant or charge against the defendant upon the expiration of ninety(90) days after the expiration of the period of suspension specified inthe memorandum of understanding is filed; provided, that no terminationof the memorandum of understanding has been filed under the provisionsof subsection (d). If the prosecution is dismissed with prejudice, jeopardyshall attach, and the court shall make a minute entry to that effect. Upondismissing any warrant or charge against the defendant pursuant to thissection, the judge shall send or cause to be sent a copy of the order ofdismissal to the Tennessee Bureau of Investigation for entry into its
expunged criminal offender and pretrial diversion database. Such ordershall include the name of the defendant, the defendant's date of birthand social security number, the offense for which diversion was granted,the date diversion was granted and the date the charge or warrant was dismissed.Tenn.Code Ann. § 40-15-105(e) (Supp.1999).
If the decision is to refuse to enter into a memorandum of understandingfor pretrial diversion, the prosecutor's response must be formal and inwriting, given the limited nature of certiorari review, and should include:
(1) An enumeration of all the evidence considered;
(2) An enumeration of the relevant factors considered and how somefactor or factors controlled the decision or outweighed other factors;
(3) An identification of any disputed issues of fact.
See id.; see also State v. Winsett, 882 S.W.2d 806, 810 (Tenn.Crim.App.1993).The only evidence the trial court may consider on a grant of certiorariis the evidence that was considered by the district attorney general. SeeCurry, 988 S.W .2d at 157 (citing Winsett, 882 S.W.2d at 810). A hearingin this context should be "only to resolve any factual disputes raisedby the prosecutor or the defendant concerning the application, but notto hear additional evidence that was not considered by the prosecutor."Id. A hearing "may be useful to clarify matters already in the record aboutwhich there may be some dispute." Winsett, 882 S.W.2d at 810. The roleof the trial court is to determine whether or not there is any substantialevidence in the record to support the prosecutor's refusal to enter intoa memorandum of understanding for pretrial diversion because if there isany substantial evidence, the prosecutor cannot, as a matter of law, haveabused his discretion in denying diversion.ISSUES
A. Letter of Denial
*4 The defendant challenges all four of the reasons stated in the letterdenying his application for pretrial diversion, arguing that no evidencesupported the reasons stated by the district attorney general. The Stateargues to the contrary, stating that substantial evidence supports eachof the reasons on which the decision was based.
The assistant district attorney general, on behalf of the districtattorney general, stated in his letter that a review had been made of thepresentence report, the facts the State would have available in a trial,and all letters of support. Based on this review, the district attorneygeneral denied the defendant's application.
The first reason stated in the letter of denial is the following:
1. Mr. Frye has a history of prior criminal activity. This is evidencedby a conviction for Reckless Driving, reduced from a charging of DrivingUnder the Influence, on May 18, 1994.
The defendant argues that this offense was minor in nature and wasthe single offense noted by the prosecutor in his letter. The defendantdoes not dispute any specific offense included in the presentence report.The trial court noted that the question was, "[I]s there substantial evidencein the materials considered by the District Attorney to support reasonnumber one (1) for denial of pretrial diversion, that you have a historyof prior criminal activity." The trial court pointed to the fact that thereckless driving charge was in Tennessee, not in Virginia, as counsel forthe defense erroneously assumed. [FN4] The trial court noted that the defendantwas initially charged with DUI on May 18, 1994, but pled guilty to thelesser offense of reckless driving. The defendant does not dispute thefact that the reckless driving plea was reduced from a DUI arrest. Thetrial court also noted that the defendant's record included a speedingviolation in 1987 and a failure to pay a fine in 1991. While the trialcourt noted that these were not major offenses, it did note the seriousnessof the DUI arrest. Although the prosecutor discussed the defendant's druguse as a separate reason, the trial court emphasized that the defendant'suse of cocaine in 1983 and again in 1993 violated the law. The trial courtalso noted the defendant's admitted use of marijuana on an occasional basisfrom 1980 until 1992 or 1993. The trial court asked the defendant if hedisputed the illegality of the use of these drugs, and the defendant respondedin the negative.
FN4. The defendant initially argued that the Virginia statute for recklessdriving described an offense less serious than the Tennessee statute.
Although the prosecutor's citing of a single offense, reckless driving,in his letter hardly constitutes a "history of prior criminal activity,"we cannot say that the trial court erred in concluding from the materialsrelied upon by the prosecutor that there was substantial evidence to supportthe first factor.
The second reason was described by the prosecutor in the followingway:
2. Mr. Frye has a history of the illegal use of drugs. This is basedon the fact that Mr. Frye, in his report, admits to the illegal use ofcocaine during 1983, as well as during 1993. In addition, Mr. Frye alsoadmits to the illegal use of marijuana on occasion from 1980 until 1992or 1993.
*5 The defendant does not dispute any aspect of this factor, arguingonly that the fact that he came forward with this information when he couldhave just lied should weigh in his favor. The State found that such anargument for pretrial diversion--the fact that the defendant could havelied--was, at best, anomalous. While the State acknowledged that the defendantadmitted the illegal drug use, the State further argued that the illegaldrug was more a contraindication for diversion than a positive reflectionon the defendant's honesty. The trial court determined that substantialevidence before the prosecutor indicated that the defendant has a historyof illegal use of drugs. We agree.
The third reason cited by the prosecutor is the following:
3. Mr. Frye has demonstrated that he is unable to maintain good behaviorwhile under supervision or on release into the community. This is evidencedby the fact that on December 1, 1998, Mr. Frye's law license was suspendedfor 6 months for "mishandling of client trust funds" and he was placedon supervision by the State Bar of Virginia. The offense in this case occurredon December 8 [sic], 1998, only 7 days after his suspension order was entered.In addition, Mr. Frye was cited on December 19, 1991, and convicted onMay 8, 1992, for failure to pay a fine. [FN5]
FN5. The defendant avers that this citation and conviction involveda parking ticket.
The defendant, while not disputing the facts concerning his suspensionfrom the practice of law, [FN6] argues that the State should have placedmore emphasis on the fact that he successfully completed the six monthsof suspension and had his license reinstated on June 1, 1999, and on thefact that the events which formed the basis of his suspension occurredmore than four years ago, in 1993 and 1994. The State counters that neitherthe successful completion of the period of suspension nor the dates ofthe disciplinary violations themselves is a key issue; the fact that thedefendant's license was suspended for serious ethical breaches in the firstplace is key. The defendant committed the offenses of conspiracy to commitburglary and tampering with evidence four days after the suspension ofhis license on December 1, 1998. [FN7] The trial court determined thatthere was substantial evidence to support reason three.
FN6. Evidence before the Virginia State Bar Disciplinary Board showedthat the defendant on three separate occasions misappropriated clients'funds from his trust account, failed to maintain adequate trust accountrecords, failed to follow the required trust account procedures, and failedto prosecute matters on which he was engaged with dispatch. The defendantwas placed under strict monitoring by the Virginia State Bar in May 1995.
FN7. The record shows that the defendant's license to practice law inVirginia was suspended for a period of five years, beginning on December1, 1998, and that four years and six months of that suspension were suspended,
conditioned on the defendant's strict compliance with terms agreedto by the defendant and the Virginia State Bar.We note that the agreement between the Virginia State Bar and the defendantset out specific terms and conditions, the violation of any one of whichwould result in revocation of the defendant's license to practice law.The terms do not specifically prohibit criminal conduct. Nevertheless,the State interprets the last sentence of the agreed disposition to meanthat the defendant's license to practice law would be revoked for receiving"any other sanction imposed for misconduct during the probationary period."[FN8] While the wording is ambiguous, we agree that the defendant's involvementin two felonies indicated a clear disregard of the spirit of his probationaryperiod granted by the Virginia State Bar. We conclude that the trial courtdid not err in determining that substantial evidence existed in the materialsconsidered by the prosecutor to support reason three.
FN8. The wording is, "The revocation of Respondent's license to practicelaw shall be in addition to any other sanction imposed for misconduct duringthe probationary period."
*6 Reason four is set out by the prosecutor as follows:
4. Mr. Frye as an attorney has an obligation under the Canon of Ethicsand his oath as an attorney to maintain the integrity of the legal professionand to refrain from engaging in conduct which is prejudicial to the administrationof justice. As a result, Mr. Frye has a professional obligation that ishigher than other citizens. In his statement to the police, Mr. Frye admitsto disposing of items belonging to his co-defendant, James D. Wyant, knowingthat he had committed the crime of Burglary. These were items that couldhave been used by the police to tie Mr. Wyant to the scene of the crime.By disposing of these items[,] Mr. Frye kept the police from discoveringand using them in the prosecution of Mr. Wyant.
The defendant argues that the State is excluding all members of thelegal profession as proper candidates for pretrial diversion. The Statecounters that any such reading is too broad. Rather, the prosecutor issimply pointing to the particular circumstances of the criminal offensesas indicating that the defendant, in spite of his heightened duty to thelegal system, deliberately disposed of evidence belonging to Wyant, withfull knowledge that Wyant had committed a burglary. The trial court notedthat "as an attorney, not a brand new attorney, but an experienced attorney,and a thirty-nine (39) year old man, Mr. Frye made a decision here, apparently,to not only thwart the connection or break the connection with him to theburglary, but to also prevent the police from finding the items." The trialcourt further noted that even if the facts were as the defendant claimed,that is, he had no idea that Wyant planned to commit a burglary but lethim out of the car to urinate, the defendant still failed to report theburglary. The trial court also cited case law for the proposition thatthe prosecutor appropriately considered the special position of an attorneyin denying pretrial diversion. See State v. Pinkham, 955 S.W.2d 956, 958-59(Tenn.1997) (affirming denial of pretrial diversion where attorney resignedfrom California Bar while disbarment proceedings were pending and subsequentlypracticed law in Tennessee without a license).
We conclude that substantial evidence supported reason four.
B. Consideration of All Relevant Factors
The defendant asserts that the prosecutor abused his discretion indenying his application for pretrial diversion by failing to consider allrelevant factors, specifically the defendant's good reputation and amenabilityto rehabilitation. The defendant also argues that the prosecutor's letterfailed to properly explain why the factors relied upon outweighed all otherpositive factors. The State responds, noting that the prosecutor did acknowledgedefendant's favorable history, but concluded that the considerations againstdiversion outweighed any favorable considerations and that the interestsof society and the defendant would best be served by denying the defendant'srequest for pretrial diversion.
*7 The denial letter specifically states that the prosecutor reliedupon the diversion request, the facts of the matter, the presentence report,and letters provided on behalf of the defendant. After setting out thereasons that the request was being denied, the letter concluded:
The above considerations must be weighed against other factors in decidingeligibility for pre-trial diversion. I am aware that Mr. Frye is a lawschool graduate and has practiced law since 1985. I am also aware thatMr. Frye was cooperative with police and gave a voluntary statement whencontacted by the police. I am also aware that Mr. Frye also has supportamong his acquaintances and professional colleagues.
However, as I have previously stated, I believe that the considerationsagainst diversion outweigh any favorable considerations and that the interestsof society and this individual are better served by denying his requestfor pre-trial diversion.
Criteria for the letter of denial are judicially imposed. Our supremecourt has made it imminently clear that this letter must be more than amere "abstract statement." State v. Herron, 767 S .W.2d 151, 156 (Tenn.1989)."[O]nly by analyzing all of the relevant factors, including those favorableto the defendant, can appropriate candidates for this legislative largessbe identified in a manner consistent with the purpose of the pretrial diversionact." State v. Curry, 988 S.W.2d 153, 158 (Tenn.1999). If the districtattorney general bases the decision on factors felt to outweigh otherssubmitted for consideration, there must be an indication why those factorsoutweigh others. See Herron, 767 S .W.2d at 156. The prosecutor did acknowledgethe defendant's education and practice of law since 1985. He also notedthe defendant's cooperation with the police and the letters of supportsubmitted by friends and colleagues. [FN9] The prosecutor finally concludedthat "the considerations against diversion outweigh any favorable considerationsand that the interests of society and this individual are better servedby denying his request for pre-trial diversion." Although the denial lettercould have been more complete and explanatory, we conclude that it minimallyshows that the prosecutor considered all relevant factors and the reasonseach was weighed as it was. Accordingly, we concur with the conclusionof the trial court that the district attorney general did not abuse hisdiscretion in denying diversion to the defendant.
FN9. The trial court was puzzled by the letter of support from DennisL. Godfrey, Commonwealth of Virginia's Attorney for Washington County,a position he had held for the past fifteen years. In the letter, Mr. Godfreystated that he had known the defendant since he began practicing in hisjurisdiction. Mr. Godfrey indicated that "[a] review of the local recordsin this county do [sic] not reveal any criminal convictions for Mr. Frye."While this may be technically accurate, the trial court noted that the
record showed that the defendant was arrested on July 1, 1998, forone offense and on June 1, 1997, for three offenses. All cases were nolleprosequied, apparently by Mr. Godfrey's office.
CONCLUSION
We conclude that there is substantial evidence to support the districtattorney general's denial of pretrial diversion, and therefore, the districtattorney general did not abuse his discretion in refusing to enter intoa memorandum of understanding for pretrial diversion with the defendant.Accordingly, the judgment of the trial court is affirmed.
Tenn.Crim.App.,2000.
State v. Frye
END OF DOCUMENT
============================
Interstate Life & Acc. Co. v. Cox
396 S.W.2d 80
Tenn.App. 1965
March 29, 1965. Certiorari Denied by Supreme Court Nov. 1, 1965. (Approx.9 pages)Court of Appeals of Tennessee, Eastern Section.
INTERSTATE LIFE AND ACCIDENT COMPANY
v.
William H. COX, Jr., Administrator of the Estate of Jennie Crow Hirst.
March 29, 1965.
Certiorari Denied by Supreme Court Nov. 1, 1965.Action for wrongful death. The Circuit Court, Hamilton County, JamesF. Morgan, J., entered a judgment for the administrator and the defendantparking lot owner appealed. The Court of Appeals, Cooper, J., held thatevidence supported jury finding that parking lot owner, sued for wrongfuldeath of parking lot patron who fell while walking therein, knew or shouldhave known of dangerous conditions existing on its parking lot in natureof a hole which was difficult to see, and that it was guilty of negligenceproximately causing accident and resulting injuries in failing to correctcondition or to warn deceased of its existence.
If remittitur were accepted, judgment, as reduced, would be affirmed,and if not accepted, cause reversed and remanded for new trial.
West Headnotes
[1] KeyCite this headnote
30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)1 In General
30k994 Credibility of Witnesses
30k994(2) k.Province of Jury.30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)2 Verdicts
30k1003 Against Weight ofEvidence
30k1003(2) k.Weighing Evidence as Appellate Function.
(Formerly 30k1003)In reviewing a case on appeal from judgment based on jury's verdict,court does not weigh evidence to determine preponderance thereof, nor decidethe credibility of witnesses.
[2] KeyCite this headnote
30 Appeal and Error
30XVI Review
30XVI(G) Presumptions
30k930 Verdict
30k930(1) k. In General.30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)1 In General
30k988 Extent of Review
30k989 k. InGeneral.On appeal from judgment based on jury verdict, review is limited todetermination of whether there is any material evidence to support verdictand court is required to take the strongest legitimate view of all evidenceto uphold verdict, to assume truth of all that tends to support it, andto disregard all to contrary, and to allow all reasonable inferences tosustain verdict.
[3] KeyCite this headnote
272 Negligence
272XVII Premises Liability
272XVII(C) Standard of Care
272k1075 Care Required of Store andBusiness Proprietors
272k1076 k. In General.
(Formerly 272k32(2.5))272 Negligence
272XVII Premises Liability
272XVII(D) Breach of Duty
272k1127 k. Parking Lots and Driveways.
(Formerly 272k36)Automobile passenger was an invitee at time she was walking back toautomobile in parking lot, and lot owner owed duty to exercise reasonablecare to maintain lot's surface in a safe condition, including duty of removingor warning her against a dangerous condition which it knew, or in exerciseof reasonable care, should have known to exist.
[4] KeyCite this headnote
272 Negligence
272XVII Premises Liability
272XVII(L) Defenses and Mitigating Circumstances
272k1281 Plaintiff's Conduct or Fault
272k1291 Exterior Grounds
272k1291(3)k. Parking Lots and Driveways.
(Formerly 272k66(2))Parking lot owner would not be liable for injuries sustained from dangersthat were obvious to persons using the same, or which were reasonably apparentor as well known to invitee as to owner.
[5] KeyCite this headnote
272 Negligence
272XVII Premises Liability
272XVII(L) Defenses and Mitigating Circumstances
272k1310 Assumption of Risk
272k1313 k. Elements.
(Formerly 272k105)Invitee on land assumes all normal or obvious risks attendant on useof premises.
[6] KeyCite this headnote
272 Negligence
272XVIII Actions
272XVIII(C) Evidence
272XVIII(C)5 Weight and Sufficiency
272k1674 Proximate Cause
272k1679 k.Premises Liability.
(Formerly 272k134(11))Evidence in action for wrongful death of patron of parking lot was suchthat jury could find that patron's fatal fall was caused by unexpectedlystepping into a water filled hole in surface of lot that was so locatedthat it was reasonable to anticipate that patrons would walk near if notin it and that hole was difficult to see.
[7] KeyCite this headnote
272 Negligence
272XVIII Actions
272XVIII(C) Evidence
272XVIII(C)5 Weight and Sufficiency
272k1667 Premises Liability
272k1669 k.Slips and Falls in General.
(Formerly 272k134(7))272 Negligence
272XVIII Actions
272XVIII(C) Evidence
272XVIII(C)5 Weight and Sufficiency
272k1674 Proximate Cause
272k1679 k.Premises Liability.
(Formerly 272k134(11))Evidence supported jury finding that parking lot owner, sued for wrongfuldeath of parking lot patron who fell while walking therein, knew or shouldhave known of dangerous conditions existing on its parking lot in natureof a hole which was difficult to see, and that it was guilty of negligenceproximately causing accident and resulting injuries in failing to correctcondition or to warn patron of its existence.
[8] KeyCite this headnote
272 Negligence
272XVIII Actions
272XVIII(C) Evidence
272XVIII(C)5 Weight and Sufficiency
272k1681 Defenses and MitigatingCircumstances
272k1683 k.Fault of Plaintiff or Third Persons.
(Formerly 272k135(4))In view of evidence that hole in parking lot into which patron had steppedand fell was difficult to see under the existing circumstances, jury couldreasonably find that patron had exercised reasonable care for her own safety.
[9] KeyCite this headnote
30 Appeal and Error
30XVI Review
30XVI(J) Harmless Error
30XVI(J)5 Pleading
30k1042 Striking Out orDismissing
30k1042(2) k.Striking Out Part of Pleading.302 Pleading
302XVI Motions
302k351 Striking Out Pleading or Defense
302k354 k. Insufficient Allegationsor Denials.
(Formerly 302k354(30))Plea of parking lot owner that daughter of deceased was guilty of negligencewhich would bar her from sharing in recovery in that she had allowed herelderly mother to walk unaccompanied and unaided in parking lot in whichher mother had fallen should not have been stricken, but action was notprejudicial in view of necessary finding of jury that the mother had notbeen guilty of negligence in walking alone.
[10] KeyCite this headnote
30 Appeal and Error
30XVI Review
30XVI(J) Harmless Error
30XVI(J)7 Conduct of Trial or Hearing
30k1046.5 k. Remarks andConduct of Judge.
(Formerly 30k1046(5))There was no showing of guilt of prejudicial misconduct on part of trialcourt based on defendant's claim that court constantly interrupted counseland commented on evidence so as to lead jury to believe that questionsasked by defense counsel were improper.
[11] KeyCite this headnote
157 Evidence
157IV Admissibility in General
157IV(B) Res Gestae; Excited Utterances
157k124 Acts and Statements of PersonSick or Injured
157k128 k. Statements toPhysicians.Where physician testifying is called by injured person in his ordinaryprofessional capacity and for purpose of securing medical treatment, andit appears there are no circumstances casting suspicion on genuinenessof utterances, all statements of symptoms and suffering, whether past orpresent, and even those involving statements as to nature of accident,if necessary to diagnosis by physician, may be testified to by him.
[12] KeyCite this headnote
157 Evidence
157XII Opinion Evidence
157XII(D) Examination of Experts
157k548 k. Questions and Answers Basedon Personal Knowledge of Expert.157 Evidence
157XII Opinion Evidence
157XII(D) Examination of Experts
157k555 Facts Forming Basis of Opinion
157k555.10 k. Medical Testimony.
(Formerly 157k555)Opinions of physicians as to cause of death are admissible where opinionsare founded either on personal knowledge of facts or upon statement ofsymptoms of disease, or manner of dying, as detailed by others.
[13] KeyCite this headnote
157 Evidence
157IV Admissibility in General
157IV(B) Res Gestae; Excited Utterances
157k124 Acts and Statements of PersonSick or Injured
157k128 k. Statements toPhysicians.157 Evidence
157XII Opinion Evidence
157XII(D) Examination of Experts
157k548 k. Questions and Answers Basedon Personal Knowledge of Expert.Deceased's regular physician, who had examined her immediately beforeher fall and immediately thereafter and who continued to see her whileshe was in the hospital, could testify as to medical history given by deceasedin course of his examination after her fall and as to cause of death.
[14] KeyCite this headnote
117 Death
117III Actions for Causing Death
117III(H) Damages or Compensation
117k94 Measure and Amount Awarded
117k95 In General
117k95(2) k.Prospective Earnings and Accumulations of Deceased.
(Formerly 117k5(2))Statutory damages in case of wrongful death embrace pecuniary valueof life of deceased to be determined upon consideration of his expectancyof life, his age, condition of health and strength, capacity, if any, forlabor and for earning money through skill in any occupation, and his personalhabits as to sobriety and industry. T.C.A. § 20-614.
[15] KeyCite this headnote
117 Death
117III Actions for Causing Death
117III(G) Evidence
117k58 Presumptions and Burden of Proof
117k58(2) k. Necessity ofProving Loss or Injury and the Amount Thereof.117 Death
117III Actions for Causing Death
117III(H) Damages or Compensation
117k94 Measure and Amount Awarded
117k99 Excessive Damages
117k99(1) k.In General.Award of $5,000 for wrongful death of 84-year-old woman who fell andreceived several fractures and died three days later was not excessive,and pain and suffering could reasonably be inferred from very nature ofinjury. T.C.A. § 20-614.
[16] KeyCite this headnote
117 Death
117III Actions for Causing Death
117III(H) Damages or Compensation
117k94 Measure and Amount Awarded
117k99 Excessive Damages
117k99(1) k.In General.Award of $1,000 for medical and funeral expenses was excessive by $227.46where the undisputed evidence fixed these expenses as $722.54 and a remittiturwas suggested.
*43 **81 Campbell & Campbell, Chattanooga, for plaintiff in error.
Atchley, Atchley & Cox, Chattanooga, for defendant in error.
COOPER, Judge.
William H. Cox, Jr., as administrator, recovered a $6,000.00 judgmentagainst the **82 defendant, Interstate Life and Accident Insurance Company,as damages for the wrongful death of Jennie Crow Hirst, who was injuredin a fall on a parking lot owned and operated by the defendant.
The parking lot, which was located on the South side of East 8th Streetdirectly behind the Interstate Building in Chattanooga, Tennessee, wasof the self-service variety, and was used primarily by employees of Interstate.Approximately 15 parking spaces were designated an 'in and out' spacesfor use by patients of doctors who leased office space in the InterstateBuilding. Such patients were allowed to park 1 hour without charge, butwere required to pay 10 cents for each additional hour or part thereof.A parking attendant was constantly on *44 the lot to collect parking chargesand to see that no one parked on the lot who was not authorized to do so.
Jennie Crow Hirst, in company with her daughter, Mrs. Lillie Hudnall,parked on the Interstate lot on the morning of December 1, 1961. On theirreturn to the lot, Mrs. Hudnall and Mrs. Hirst stopped at the attendant'soffice, paid the parking ticket and walked toward their automobile, withMrs. Hudnall holding onto Mrs. Hirst's arm to steady and support her. Onnearing the automobile, Mrs. Hudnall relinquished her hold on Mrs. Hirst'sarm and walked a step or two ahead to open the automobile door. Withina few steps, Mrs. Hudnall heard her mother fall, turned, and found hersitting in a water-filled hole. On examination, it was found that Mrs.Hirst's right thumb and left leg were broken. She died three days later.
Plaintiff, as administrator, charged that Mrs. Hirst's injuries andresulting death were due to the negligence of Interstate (1) in failingto maintain the surface of the parking lot in a reasonably safe condition,(2) in failing to warn Mrs. Hirst of the danger attendant to the use ofthe lot, and (3) in inviting Mrs. Hirst and others to use the lot whenit knew, or should have known, of the dangerous condition existing on thelot.
The defendant filed special pleas denying that there were any materialdefects in the parking lot, and averring that, if there were, they wereobvious and were known by Mrs. Hirst as she used the parking lot frequently.The defendant also took the position that Mrs. Hirst's fall was the directresult of her own negligence (1) in not keeping a proper lookout for herown safety, and (2) in walking unaided, knowing that her sense of sight,balance, and general physical condition were not good due to her advancedage. As a corollary, the defendant also charged *45 that Mrs. Hudnall wasguilty to negligence which would prevent her sharing in any recovery forthe wrongful death of her mother, in that she allowed her mother to walkunaccompanied and unsupported. This latter plea was struck on motion ofplaintiff prior to trial.
After hearing the evidence, the jury resolved the issues in favor ofthe plaintiff and returned a verdict of $5,000.00 for the loss of Mrs.Hirst's life and $1,000.00 for medical and funeral expense. The defendantperfected its appeal, directing its numerous assignments of error to thetrial court's refusal to direct a verdict, to alleged prejudicial remarksand actions of the trial court, to the court's action in striking a portionof the special plea, to the admission of medical testimony relating tothe history of injury given by the deceased and the cause of death, andto the amount of the verdict.
[1][2] We have repeatedly pointed out that in reviewing a case on appeal,where the appeal is from a judgment based on a jury's verdict, we do notweigh the evidence to determine the preponderance thereof, nor do we decidethe credibility of witnesses. McAmis v. Carlisle, 42 Tenn.App. 195, 300S.W.2d 59. Our review is limited to a determination of whether there isany material evidence to support the verdict, and 'it [our review] mustbe governed **83 by the rule safeguarding the constitutional right of trialby jury, which requires us to take the strongest legitimate view of allthe evidence to uphold the verdict, to assume the truth of all that tendsto support it, to discard all to the contrary, and to allow all reasonableinferences to sustain the verdict.' D. M. Rose & Co. v. Snyder, 185Tenn. 499, 206 S.W.2d 897. And if there is material evidence to supportthe verdict, it must be affirmed. City of Chattanooga v. Ballew, 49 Tenn.App.*46310, 354 S.W.2d 806, and numerous cases there cited.
[3][4][5] It is undisputed that at the time of her fall, Mrs. Hirstwas an invitee and that the defendant owed her the duty to exercise reasonablecare to maintain the parking lot in a safe condition, including the dutyof removing or warning against a dangerous condition which it knew or,in the exercise of reasonable care, should have known to exist. Great Atlanticand Pacific Tea Co. v. Lyle, 49 Tenn.App. 78, 351 S.W.2d 391; Walls v.Lueking, 46 Tenn.App. 636, 642, 332 S.W.2d 692; Phillips v. Harvey Co.,196 Tenn. 174, 264 S.W.2d 810. The liability of the defendant, if any,is predicated upon a superior knowledge of a perilous condition on thepremises and defendant would not be liable for injuries sustained fromdangers that were obvious, reasonably apparent or as well known to theinvitee as to the defendant. Broome v. Parkview, Inc., 49 Tenn.App. 725,359 S.W.2d 566; Kendall Oil Co. v. Payne, 41 Tenn.App. 201, 293 S.W.2d40; Illinois Cent. Ry. Co. v. Nichols, 173 Tenn. 602, 118 S.W.2d 213, 38Am.Jur. Negligence § 97, pp. 757, 758. The invitee assumes all normalor obvious risks attendant on the use of the premises. Gargaro v. KrogerGrocery & Baking Co., 22 Tenn.App. 70, 118 S.W.2d 561; 65 C.J.S. Negligence§ 50, p. 541.
In the present case, the record shows that defendant's parking lotwas constructed in 1951, and has been used constantly since that time.The original construction required a deep earthen fill and the defendantused 'a rock binder course' as pavement to give the fill time to settle.In 1953, the parking lot was paved with asphalt. No *47 repairs were madeto the surface of the lot between the time the lot was paved and the dayMrs. Hirst fell.
Various employees of the defendant made regular weekly and monthlyinspections of the lot, and the attendant 'covered the lot' almost daily.Corley Young, defendant's building manager who inspected monthly, was theonly employee who admitted seeing depressions or holes in the surface ofthe lot. He testified that there were several in the general area whereMrs. Hirst fell, but stated that he did not consider them hazardous. Hedescribed the hole where Mrs. Hirst fell as bing 'a tire and half widewhere cars had repeatedly been in there'; and not more than 1 to 1 1/4inches deep.
The parking lot attendant, Joe Goodson, who went to the aid of Mrs.Hirst immediately after her fall, testified that the hole was 18 inchesto 2 feet in diameter and from 1 1/2 to 2 inches in depth.
Mrs. Hudnall described the hole as being 'right in the line of passingas you go there between the cars' and that it was filled with 'black, murky,greasy water or something, the color of the pavement around the hole.'Mrs. Hudnall further described the hole as being about 25 inches long,15 to 18 inches wide and 2 or 3 inches deep.
Several other employees of the defendant testified as to the size andshape of the hole where Mrs. Hirst fell, and the fact that there was nobreak in the pavement.
[6][7][8] From this evidence, we think the jury reasonably could findthat Mrs. Hirst was caused to fall by stepping unexpectedly into a holeor depression in the surface of defendant's parking lot 'where cars hadrepeatedly been in there'--showing the hole not to be of recent origin;that the hole was so located that it was reasonable to *48 anticipate thatthe patrons of the lot would walk near, if not in it, in going to and fromtheir **84 automobiles; that the hole was difficult to see under any circumstancesas it was paved with the same material as the rest of the lot and therewas no obvious break in the pavement; that on the occasion of Mrs. Hirst'sfall, the hole was filled with water the color of the surrounding pavement,which made it even more difficult to see. These findings would, in ouropinion, justify and support the jury's conclusion that the defendant knewor should have known of a dangerous condition existing on its parking lot,and that it was guilty of negligence proximately causing the accident andresulting injuries to Mrs. Hirst in failing to correct the condition, orto warn Mrs. Hirst of its existence. Further, in view of the evidence thatthe hole was difficult to see under the circumstances existing at the timeof Mrs. Hirst's fall, the jury reasonably could find that the plaintiffexercised reasonable care for her own safety.
Defendant strongly insists that Mrs. Hirst was guilty of contributorynegligence in walking unaided over the parking lot, pointing to the factthat she was 84 years of age and that Mrs. Hudnall usually held onto herarm to steady her as she walked. Many questions were asked concerning Mrs.Hirst's physical condition, but they all added up to the fact that 'shewas in moderately good health for her age', and there was no showing thatshe could not walk unaided. We think under the evidence the issue of whetherMrs. Hirst was guilty of negligence in walking unaided was for the jurynot the court.
[9] It is noted that defendant has assigned as error the trial court'saction in striking from the special pleas the corollary averment that Mrs.Hudnall was guilty of negligence which would bar her sharing in the recovery*49 in that she allowed her mother to walk unaccompanied and unaided. Weagree with the defendant that the plea should not have been stricken; however,we cannot agree that such action was prejudicial or materially affectedthe results of the trial in view of the necessary finding of the jury,under the pleadings, evidence and charge, that Mrs. Hirst was not guiltyof negligence in walking alone and unaided. If it were not negligence forMrs. Hirst to walk alone, it follows that it could not be negligence forher daughter to permit her to do so.
[10] The defendant contends also that the trial court was guilty ofprejudicial misconduct in constantly interrupting counsel and commentingon the evidence so as to lead the jury to believe that questions askedby defendant's counsel were improper, pointless, or repetitious. In supportof its position, defendant has cited us to numerous excerpts from the record--toomany to be copied into the opinion. We have read the excerpts in contextand have found no basis for holding that defendant was in any way prejudicedby the actions of the trial court.
The defendant insists, in two different assignments of error, thatthe trial court erred in admitting testimony of Dr. Fred E. Marsh relative(1) to the medical history given by Mrs. Hirst in the course of his examinationof her after the fall, and (2) the cause of death.
[11] 'Where it appears that the physician testifying was called bythe injured person in his ordinary professional capacity and for purposesof securing relief from pain and for medical treatment, and there are nocircumstances casting suspicion on the genuineness of the utterances, allstatements of symptoms and sufferings, whether past or present, and thoughinvolving statements as to the nature of the accident, if necessary todiagnosis by the *50 physician, may be testified to by him. * * *' 3 Joneson Evidence (2 Ed.) Sec. 1217, pp. 2234-2235, quoted with approval in GulfRefining Co. v. Frazier, 15 Tenn.App. 662, 689. See also City of Maryvillev. McConkey, 19 Tenn.App. 520, 90 S.W.2d 951, 955.
[12] Likewise, the opinions of physicians as to the cause of deathare admitted **85 in evidence where the opinions are founded either onpersonal knowledge of the facts of the case or upon a statement of thesymptoms of the disease, or manner of dying, as detailed by others. Ifsuch opinions were not received, it would be impossible in many cases toknow the cause or manner of death, especially in those cases where therewere no persons present at the time of the death, and no autopsy was performed.See generally Endowment Rank K. P. v. Steele, 108 Tenn. 624, 69 S.W. 336,337, and numerous cases there cited; National Life and Acc. Ins. Co. v.Follett, 168 Tenn. 647, 80 S.W.2d 92; Act-o-Lane Gas Service Co. v. Hall,35 Tenn.App. 500, 248 S.W.2d 398, 404.
[13] The record in this case shows Dr. Marsh had treated Mrs. Hirstregularly since 1941; that he examined her minutes before her fall andagain immediately after the fall; that he gave her emergency treatmentand referred her to an orthopedic physician in the Interstate Building;however, Dr. Marsh continued to see Mrs. Hirst while she was in the hospitaland was called by the attending nurse immediately upon the death of Mrs.Hirst.
Under these circumstances, and in the light of the above authorities,we find no error in the admission of Dr. Marsh's testimony.
The defendant next insists that the verdict was excessive and was basedon speculation and conjecture.
*51 [14] As heretofore noted, the jury returned two separate awards--$5,000.00 for the wrongful death of Mrs. Hirst, and $1,000.00 for medicaland funeral expenses--though the two awards were included in a single judgmentfor $6,000.00.
'Where a person's death is caused by the wrongful act, fault, or omissionof another, and suit is brought for damages * * *, the party suing shall,if entitled to damages, have the right to recover for the mental and physicalsuffering, loss of time, and necessary expenses resulting to the deceasedfrom the personal injuries, and also the damages resulting to the partiesfor whose use and benefit the right of action survives * * *.' T.C.A. 20-614.The latter damages embrace the pecuniary value of the life of the deceased,to be determined upon the consideration of her expectancy of life, herage, condition of health and strength, capacity, if any for labor and forearning money through skill in any art, trade, profession, occupation,or business and her personal habits as to sobriety and industry. DavidsonBenedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967; Memphis Street RailwayCompany v. Cooper, 203 Tenn. 425, 313 S.W.2d 444.
[15] As heretofore noted, Mrs. Hirst received a broken right thumband a broken left leg in the fall. The method of treating the thumb isnot noted in the record; however, it is shown that the broken leg was treatedby placing it in a long-leg cast, which extended from the ankle up to thethigh. The record further shows that Mrs. Hirst was 'awful nervous afterthe fall.' Later, it was noted that Mrs. Hirst's blood pressure had dropped,and her breathing was becoming shallow. Three days later she became cyanoticand expired. The cause of death was *52 given as a pulmonary embolism resultingfrom the fractures.
Dr. Marsh stated that prior to the fall, Mrs. Hirst was in moderatelygood health for a person 84 years of age. The mortality tables were thenintroduced showing the life expectancy of a white female, 84 years of age,to be 5.14 years.
Mrs. Hirst's only income consisted of a $50.00 monthly award from theRailroad Retirement Board, which was not enough to provide her with thenecessities of life. This pension terminated at her death.
The defendant argues that as there was no direct evidence that Mrs.Hirst suffered pain from her injuries, recovery must be limited to thepecuniary value of her life and that the award of $5,000.00 was excessive.**86 We cannot agree with either insistence. We think pain and sufferingreasonably could be inferred from the very nature of the injury, the applicationand wearing of the cast, Mrs. Hirst's excessive nervousness after the fall,and the fact that she died from an embolism. But, even if the pecuniaryvalue of life were the only measure of damages applicable under the factsof this case, we think the allowance of $5,000.00 as damages for the wrongfuldeath of Mrs. Hirst was not excessive.
[16] As to the award of $1,000.00 for medical and funeral expenses,we think it is excessive by $227.46 as the undisputed evidence fixes theexpenses incurred as being $722.54. To make the judgment conform with theproof, we suggest a remittitur of $227.46.
If the remittitur suggested is accepted by the plaintiff, the judgmentof the Circuit Court, thus reduced, will be *53 affirmed. If not, thiscause will be reversed and remanded for a new trial.
Costs of the appeal are adjudged against the defenant and its surety.McAMIS, P. J., and PARROTT, J., concur.
Tenn.App. 1965
INTERSTATE LIFE AND ACCIDENT COMPANY v. COX
END OF DOCUMENT
========================
Flickner v. Crete Carrier Corp.
1998 WL 268102
Tenn.,1998.
May 27, 1998. (Approx. 4 pages)Only the Westlaw citation is currently available.
NOTICE: THIS OPINION IS DESIGNATED AS NOT FOR PUBLICATION AND MAY NOTBE CITED EXCEPT AS PROVIDED BY TENN. S.CT. RULE 4.
Supreme Court of Tennessee, Special Workers' Compensation Appeals Panel.
Elizabeth Anne FLICKNER, Plaintiff/Appellant,
v.
CRETE CARRIER CORPORATION, Defendant/Appellee.
No. 03S01-9708-CH-00095.
May 27, 1998.KNOX CHANCERY HON. SHARON BELL, CHANCELLOR.
For the Appellant: David C. Lee, J.D. Lee, LEE, LEE & LEE 422 GayStreet, Knoxville, TN 37902.
For the Appellee: James T. Shea, IV BAKER, McREYNOLDS, BYRNE, O'KANE,SHEA & TOWNSEND, P.O. Box 1708, Knoxville, TN 37901.
MEMORANDUM OPINION
INMAN.
*1 This workers' compensation appeal has been referred to the SpecialWorkers' Compensation Appeals Panel of the Supreme Court in accordancewith T.C.A. § 50-6-225(e)(3) for hearing and reporting to the SupremeCourt of findings of fact and conclusions of law.
Ms. Flickner is 55 years old, has eight years of formal education,and has worked as a truck driver for most of her adult life. She testifiedthat she injured her back in 1975 in a work-related accident in Florida,that she underwent back surgery after the injury, and that she receivedFlorida workers' compensation benefits for that injury. Exhaustive attemptsby the parties failed to discover her Florida workers' compensation recordsowing to the 20- year time lapse.
Ms. Flickner testified that after the 1975 injury she recovered andwas able to work full-time at various jobs, mostly truck driving, for thenext 20 years. On June 16, 1995, she injured her lower back while drivinga truck for Crete Carrier Corporation, and the extent of her vocationaldisability from that injury is the issue before us.
After the 1995 injury, Ms. Flickner was treated by Dr. Robert E. Finelli,who diagnosed lumbar disk defects at L3/4 and L4/5, and scar tissue fromher previous surgery at L3/4 and L5/S1. He performed extensive lumbar surgeryon September 18, 1995.
Vocational Rehabilitation Specialist Dr. Julian Naldosky testifiedfor the employee that she could no longer perform her truck driving joband had no skills which would transfer to a semi-skilled, light or sedentaryjob. He opined that jobs available to her in her disabled condition, inlight of her employment background, abilities and education, and assumingher ability to tolerate sitting and standing throughout the workday, wouldinclude cashier in a restaurant or parking lot, ticket seller, retail receivingclerk, automobile self-serve service station attendant, gate tender, securitymonitor, hardware assembler, gasket inspector, packager of small partsor small products, and a bottling line attendant. These jobs enable a personto alternate sitting and standing but do not allow the person to sit orstand at will. If she is limited to sitting and standing at will, she wouldbe 100 percent vocationally disabled.
Vocational Consultant Jane Colvin Roberson testified for the employerthat with her current restrictions, the employee could be a trucking companydispatcher, recruiter, log clerk, lay-away clerk in a retail store, salescounter clerk or sales position in which she could sit or stand at will.She opined that the employee has a 75 to 78 percent vocational loss dueto her injury.
Ms. Flickner testified that after the surgery she tried unsuccessfullyto find sedentary work, that she obtained her G.E.D. ["by the skin of myteeth"] and that, at the time of trial, she was taking an adult educationcomputer class through the Department of Vocational Rehabilitation to improveher employability.
The trial court found that her medical impairment was two percent,applied the statutory multiplier of six, and awarded 12 percent permanentpartial disability to the body as a whole as a result of her 1995 injury.The only issue on appeal is whether the trial court appropriately appliedDr. Finelli's expert testimony in finding the extent of vocational disability.
*2 The employee [appellant] contends the Chancellor disregarded themedical evidence and improperly took judicial notice of and interpretedthe AMA Guidelines to Evaluation of Permanent Impairment, Fourth Edition,without any supporting medical testimony.
The employer [appellee] contends the Chancellor appropriately interpretedand applied the provisions of the AMA Guides because Dr. Finelli's testimonydemonstrated the impairment rating he gave the appellant had not been determinedin accordance with the applicable provision of the AMA Guidelines.
Review of the findings of fact made by the trial court is de novo uponthe record of the trial court, accompanied by a presumption of the correctnessof the finding, unless the preponderance of the evidence is otherwise.T.C.A. § 50-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d548, 550 (Tenn.1995). The application of this standard requires this Courtto weigh in more depth the factual findings and conclusions of the trialcourts in workers' compensation cases. See Corcoran v. Foster Auto GMC,Inc., 746 S.W.2d 452, 456 (Tenn.1988).
At trial, the Chancellor and counsel for the parties agreed that Dr.Finelli's January 6,1997 depositional testimony concerning the appellant'smedical impairment rating was unclear. The parties were directed by theChancellor to conduct a second deposition, at which time Dr. Finelli'sopinion as to Ms. Flickner's medical impairment rating as a result of her1995 back injury was to be clarified. Dr. Finelli's testimony on February17, 1997 is instructive:
DIRECT EXAMINATION, BY MR. LEE:
Q: Doctor, will your opinions in this deposition be to a reasonabledegree of medical certainty?
A: Yes.
Q: And would you describe to the Court--we're taking this by videotape--whatElizabeth Flickner's impairment rating is as a result of your September18, 1995 surgery?
A: Before I answer that, can we go back to the original injury of twentyyears ago and then we can just kind of walk through this?
Q: Certainly.
A: Ms. Flickner had a surgical procedure at her lower interspace ofL5-S1 and the interspace above it at L4-5. And just based on that typeof history in which she's told us, and if you go to the AMA Guidelines,this would be rated as a pre-existing impairment rating of ten percentfor the first level and one percent for the second level, for a total ofeleven percent. She had a history of twenty years of having no problemsuntil a new injury occurred. And here she was found to have a ruptureddisc at the third disc called L3-4. And this was a bona fide disc, brandnew, which was documented by additional x-rays. There was a question ofhaving a recurrent disc down below at L4-5. Because of the twenty yearhiatus, the fact that she had been working during this time, and a newinjury occurred essentially twenty years later, her rating would be tenpercent again to the virgin interspace of L3-4. The AMA Guidelines addan additional two percent when exploring a previously operated interspace.Her impairment rating for the second surgery would be twelve percent.
*3 Q: Is that to a reasonable degree of medical certainty?
A: Yes.
MR. LEE: You may ask.
CROSS EXAMINATION BY MR. SHEA:
Q: Doctor, impairment ratings, as you understand, are to be given inaccordance with the AMA Guidelines, Fourth Edition?
A: That's correct.
Q: And in this case, you're relying upon Table 75 of the musculoskeletalprovision of the AMA Guidelines, Fourth Edition?
A: That's correct.
Q: I understand that in accordance with the AMA Guidelines, FourthEdition, that in regard to an intervertebral disc or soft tissue lesion,in Table 75, Section II-F, if you have multiple level surgical procedureswith or without operations and with or without residual signs or symptoms,that would amount to a ten percent impairment rating?
A: That's correct.
Q: I understand that it's your opinion, based upon the AMA Guidelines,that in regard to this first surgery back in 1975, which was located atL5-S1 and L4-5, that Ms. Flickner would have an eleven percent rating.That would be ten percent plus the one percent?
A: That's correct.
Q: It's true also that in accordance with Table 75 of the AMA Guidelines,Section G, that if a person has multiple operations with or without residualsymptoms, that for the second surgery to the lumbar area, that the plaintiffwould have an additional two percent?
A: That's correct.
Q: And in this case there was an additional surgery in this case toa new area of the lumbar portion of the body at L4-5?
A: That's correct. Q: And it's true therefore that under Section--
A: I'm sorry. L3-4.
Q: I'm sorry. L3-4, and some additional work at L4-5?
A: That's correct.
Q: And that pursuant to Table 75, Sections II-G-1 that plaintiff wouldtherefore be entitled to an additional two percent in accordance with theAMA Guidelines for that new surgery in the lumbar level; isn't that correct?
A: That's your interpretation of that. [emphasis added]
Q: Is there--
MR. LEE: Well, let him finish his answer.
MR. SHEA: Okay. I didn't realize that he had not.
A: Yeah. That's your interpretation of that.
Q: Okay, Doctor.
A: This is the way I interpret it. And you have to remember, you'redealing with the AMA Guidelines which are guidelines. Let's take, for example,this lady twenty years ago had three operations, one, two and three. Itwould be ten, eleven, twelve. And then because this had already been aviolated interspace, that was taken into consideration for her workmans'comp injury, the second operation at these two levels would have been fourpercent.
The real issue is this new interspace at L3-4 after twenty years isa new disc. It's a new disc. It's not an old disc. You still have to openthe skin higher than where the previous interspace operation was. You haveto do the bone work and violate the foramina which is what the impairmentrating is given for. So the actual work at the L3-4 interspace level isten percent. The second--when you go down to the previous operated interspace--youmight disagree with this, but this is the way--you've got to have somesanity--they assume that because the bone work has been done, it's easierto operate on a second interspace. Well, that's not true. You have a lotof scar tissue. And that's probably where the failings of the impairmentrating system for the AMA Guidelines are, but you have to add some consistencyto the rating. And the way I interpret it is, a brand new interspace isten percent, because other work has been done at 4-5, there is scar tissue,there is arthritis that's been taken into consideration with the originalrating of twenty years ago. And all we're doing is going in there and removingthe scar tissue and going down and inspecting the disc, and that givesan additional two percent impairment.
*4 Q: Well, Doctor, in regard to this provision of Table 75 of theAMA Guidelines, however, it does seem to indicate, does it not, that inregard to a second operation to the lumbar area of the spine that the addedimpairment rating pursuant to these guidelines would be two percent?
A: No. You're misreading it. [emphasis added]
Q: All right. That's--
A: Multiple operations with or without residual surgery, second operationat the same interspace. That's the way I interpret that. [emphasis added]
Q: Does it say that, though, Doctor?
A: No, it does not.
Q: And does it not seem to indicate in the three columns, multiplelevels of the spine, that is, cervical, lumbar, thoracic?
A: It does. But, again, a second operation at a new interspace is anew problem.
Q: That's true. No question about that.
A: And, again, whether you call the area cervical, thoracic, or lumbar,there's still spinal segments.
Q: I see. The issue for us in this lawsuit, Doctor, is what the ratingwould be in accordance with the AMA Guidelines.[emphasis added]
A: The way I interpret it is twelve percent. [emphasis added]
Q: And it would be twelve percent for the new injury?
A: That's right. It would be ten percent for the new virgin interspaceat L3- 4 and two percent for the second previously operated interspace.
Q: And you and I have discussed this and you're saying that I interpretthe Guidelines differently from you, but are they subject to interpretationon that issue? That is--
A: The Guidelines are vague here, but I try to use common sense. [emphasisadded] I mean, you've got a period of twenty years where the patient waspain free, and then a new problem occurs. This was not addressed.--
Q: In regard to the actual wording, though, of new level or new operation,under Table 75, Section II that would just indicate an additional two percentfor each level after the original ten percent in 1975?
A: Maybe this is the difference between a lay person like yourselfand a medical doctor ... [emphasis added]
After reviewing Dr. Finelli's deposition and hearing further argumentby counsel, the Chancellor held that the appellant had sustained two percentmedical impairment, applied the multiplier of six, and awarded a judgmentof 12 percent permanent partial disability to the body as a whole.
The employee appeals, insisting essentially that the trial court disregardedDr. Finelli's depositions, which are the only medical evidence of the extentof her permanent partial disability, in finding two percent medical impairmentand awarding 12 percent permanent partial disability based on the multiplierof six as provided in T.C.A. § 50-6-241.
In making its determination of vocational impairment, the trial courtshall consider all pertinent factors, including lay and expert testimony,employee's age, education, skills and training, local job opportunities,and capacity to work at types of employment available in claimant's disabledcondition. T.C.A. § 50-6-241(a)(1); Roberson v. Loretto Casket Co.,722 S.W.2d 380, 384 (Tenn.1986).
*5 Expert medical testimony must be given in accordance with the standardsset out in T.C.A. § 50-6-204(d0(3), which provides:
(3) To provide uniformity and fairness for all parties, any medicalreport prepared by a physician furnishing medical treatment to a claimantshall use the American Medical Association Guides to the Evaluation ofPermanent Impairment, or the Manual for Orthopedic Surgeons in EvaluationPermanent Physical Impairment. A physician shall utilize the most recentedition of either publication in determining the degree of anatomical impairment.A practitioner shall be required to give an impairment rating based onone of the two publications noted above.
When the medical testimony is presented by deposition, as it was inthis case, this Court is able to make its own independent assessment ofthe medical proof to determine where the preponderance of the evidencelies. Cooper v. INA, 884 S.W.2d 446, 451 (Tenn.1994); Landers v. Fireman'sFund Ins. Co., 775 S.W.2d 355, 356 (Tenn.1989).
We have reviewed the depositions of Dr. Finelli and find that he utilizedthe most recent edition of the AMA Guidelines in assessing medical impairment,as indicated by his testimony (1) that his opinion was based upon the AMAGuidelines, (2) that he was relying upon Table 75, (3) that in assessing12 percent impairment he was interpreting the AMA Guidelines, and (4) that"the Guidelines are vague here, but I try to use common sense." Dr. Finelli'sassessment of twelve percent medical impairment is fully documented andsupported by his expert medical interpretation of the AMA Guidelines andthe preponderance of the medical evidence. [FN1]
FN1. We do not have the familiar issue of accrediting the opinion ofone medical expert over another because the appellee, who was aware ofDr. Finelli's opinion, never presented countervailing expert testimonyas to the extent of appellant's medical impairment.
The trial court determined that appellant was entitled to the multiplierof six times the medical impairment. The six-times multiplier is not tobe applied automatically, but should be reserved for the most severe ofall unscheduled permanent partial disabilities. The evidence indicatesthat there were many jobs Ms. Flickner could do with her medical restrictions,and that she has had the benefit of vocational rehabilitation re-trainingfor sedentary work. We find the application of the multiplier of six isnot supported by the preponderance of the evidence and that the evidencesupports a multiplier of four. Applying the multiplier of four to the medicalimpairment of twelve percent, we find the preponderance of the evidencesupports a finding of 48 percent vocational disability. We so modify theholding of the trial court, and as modified, the judgment is affirmed,with costs assessed to the appellee.
BIRCH, Jr., Justice, and THAYER, Special Judge, concur.
JUDGMENT ORDER
This case is before the Court upon the entire record, including theorder of referral to the Special Workers' Compensation Panel, and the Panel'sMemorandum Opinion setting forth its findings of fact and conclusions oflaw, which are incorporated herein by reference;
*6 Whereupon, it appears to the Court that the Memorandum Opinion ofthe Panel should be accepted and approved; and
It is, therefore, ordered that the Panel's findings of fact and conclusionsof law are adopted and affirmed, and the decision of the Panel is madethe Judgment of the Court.
Costs on appeal are taxed to the defendant/appellee, Crete CarrierCorporation, for which execution may issue if necessary.
al to the Special Worker' Compensation Panel, and the Panel's MemorandumOpinion setting forth its findings of fact and conclusions of law, whichare incorporated herein by reference;
Whereupon, it appears to the Court that the Memorandum Opinion of thePanel should be accepted and approved; and
It is, therefore, ordered that the Panel's findings of act and conclusionsof law are adopted and affirmed, and the decision of the Panel is madethe Judgment of the Court.
Costs on appeal are taxed to the plaintiff-appellant, Vernon Harrisand Gilbert and Faulkner. surety, for which execution may issue if necessary.
Tenn.,1998.
Flickner v. Crete Carrier Corp.
END OF DOCUMENT
=================================
Brown v. Allright Auto Parks, Inc.
456 S.W.2d 660.
Tenn.App. 1970.
April 13, 1970. Certiorari Denied by Supreme Court July 6, 1970. (Approx.5 pages)Court of Appeals of Tennessee, Western Section.
Nell Cross BROWN and Husband, James R. Brown, Plaintiffs-Appellants,
v.
ALLRIGHT AUTO PARKS, INC., Defendant-Appellee.
April 13, 1970.
Certiorari Denied by Supreme Court July 6, 1970.Suit arising out of accident in which plaintiff sustained broken arm.The Division 7 of the Circuit Court, Shelby County, Howard, J. Vorder Bruegge,J., entered judgment for defendant and plaintiff appealed. The Court ofAppeals, Puryear, J., held that proffered testimony as to requirementsof building code which concerned fences, gates and signs for man liftssuch as that involved in accident but which was not in effect at time ofaccident was properly excluded.
Affirmed.
West Headnotes
[1] KeyCite this headnote
30 Appeal and Error
30XI Assignment of Errors
30k723 Specification of Errors
30k731 Determination
30k731(1) k. Verdict.Assignment of error to effect that verdict was contrary to law applicableto case was so general and indefinite that it failed to specify whereinverdict was contrary to law and did not comply with rule of Court of Appeals.Court of Appeals Rules, rule 12.
[2] KeyCite this headnote
30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and Findings
30XVI(I)2 Verdicts
30k1005 Approval of TrialCourt
30k1005(4) k.Verdict Against Weight of Evidence.Assignment of error that verdict was against greater weight or preponderanceof evidence presented no question which Court of Appeals could considerwhere verdict of jury was approved by trial judge, and Court of Appealscould not weigh evidence for purpose of determining which way it preponderated.
[3] KeyCite this headnote
70 Carriers
70IV Carriage of Passengers
70IV(D) Personal Injuries
70k309 Actions for Injuries
70k317 Admissibility ofEvidence
70k317(1) k.In General.Proffered testimony as to requirements of building code which concernedfences, gates and signs for man lifts such as that involved in accidentbut which was not in effect at time of accident was properly excluded.
[4] KeyCite this headnote
70 Carriers
70IV Carriage of Passengers
70IV(D) Personal Injuries
70k280 Care Required and Liability ofCarrier in General
70k280(4) k. Elevators,Escalators, Etc.
(Formerly 70k280(6))Standard of care required of common carrier was not applicable to parkinggarage which operated man lift marked "Danger. Keep Off. Employees Only.",and on which customer rode.
[5] KeyCite this headnote
388 Trial
388VII Instructions to Jury
388VII(D) Applicability to Pleadings and Evidence
388k249 Application of Instructionsto Case
388k252 Facts and Evidence
388k252(22)k. Failure of Party to Testify or Call Witness or Produce Evidence.Where defendant did not introduce any evidence at all and rested itscase on plaintiff's proof and there was no evidence that garage attendantwas available as witness, trial court did not err in refusing plaintiff'srequested instruction as to inference from failure to call witness thathis testimony would be unfavorable.
[6] KeyCite this headnote
388 Trial
388VII Instructions to Jury
388VII(E) Requests or Prayers
388k260 Instructions Already Given
388k260(1) k. In General.Where trial judge in his general charge included all correct statementsof law included in plaintiff's special request, trial judge not err inrefusing it.
[7] KeyCite this headnote
70 Carriers
70I Control and Regulation of Common Carriers
70I(A) In General
70k4 k. Who Are Common Carriers.70 Carriers
70IV Carriage of Passengers
70IV(D) Personal Injuries
70k309 Actions for Injuries
70k321 Instructions
70k321(1) k.In General.
(Formerly 70k321(3))Defendant that operated parking garage with man lift marked "Danger.Keep Off. Employees Only.", and on which customer fell and sustained brokenarm was not a common carrier, and trial court did not err in refusing instructionas to duty of common carrier.
*544 **660 Richard T. Ely, Memphis, for plaintiffs-appellants.
Robert M. Johnson, of Canada, Russell & Turner, Memphis, for defendant-appellee.
**661 OPINION
PURYEAR, Judge.
This suit arose out of an accident in which the plaintiff, Mrs. NellCross Brown, sustained a broken arm. Both parties joined in one suit againstthe defendant, Mrs. Brown suing for damages for personal injury, and Mr.Brown suing for medical expenses and loss of services and consortium resultingfrom injury to Mrs. Brown.
The case was tried before the Circuit Judge and a jury on April 16thand 17th, 1969, and resulted in a jury verdict in favor of the defendant.
Plaintiffs filed a motion for new trial, which was overruled and thisappeal resulted.
Since the case was tried and submitted to the Court and jury upon evidenceintroduced by the plaintiffs only, there is no controversy about the factsof the case which are, briefly, as follows:
The defendant operates a parking garage at the corner of Second andGayoso Avenue in Memphis, Tennessee, and on the occasion in question, andfor some time prior thereto, the plaintiff, Mrs. Brown, had been parkingher automobile in said garage on a monthly basis.
On the 10th day of June, 1967, Mrs. Brown parked her automobile insaid garage and when she returned at about 5:30 P.M. on that same day,the attendant who was assigned to the duty of delivering her automobileto her, reported that he was unable to find it, whereupon he inquired ifshe would like to help him locate it and she replied in the affirmative.It was later ascertained that the automobile and been stolen, but thisfact is not relevant to the instant case.
*546 The defendant's parking garage consists of at least three storiesupon which automobiles are parked and the device by which attendants andother employees travel from one story to another in said building is knownas a 'men lift.'
This man lift consists of a continuous belt that runs between the groundfloor and the top floor both ways; photographs in the record show thatthis belt has attached to it, at intervals, steps which function as such,whether going up or coming down, and immediately above each step is a handgrip; the belt is supposed to travel at a speed of about seventy-eightfeet per minute and alongside of same is a rope which may be pulled tostop it; this belt operates through a small hole in each floor and theemployee riding the same may step off at the designated floor, usuallywhile the belt is in motion.
A photograph filed as an exhibit shows a sign suspended near this deviceat the point where plaintiff says she stepped upon it which sign is printedin large legible type with the following words thereon: 'DANGER. KEEP OFF.EMPLOYEES ONLY.'
The way and manner in which the accident occurred was described byMrs. Brown, in her testimony, as follows:
'A. I just asked for my car, because you don't have a ticket when youpark by monthly basis, and I asked for my car and the boy nodded as ifhe would get it, and he kept bringing other cars down and bringing othercars down, and I asked him if he knew my car when he saw it, and he saidhe did, and I said, why don't you bring it down?
*547 And he said, I can't find it. And he said, do you want to helpme find it, and I said yes, and I said, how do you get up there, and hesaid take this lift or steps, or whatever it was, and I got on there, andI asked him how to get off, and he said when you see the floor, and I guessit would be on the second floor, and the floor was **662 already therewhen he said get off when you see the floor, and so I stepped off, andI don't know how, I just fell.
Q. Do you know what floor that was?
A. It was the second floor.
Q. On the second floor and you fell?
A. That's right.' (B. of E. pp. 15--16)
As a result of this accident, the plaintiff sustained a broken armand was hospitalized for several days.
Seven assignments of error have been filed and we will consider anddiscuss them separately.
The first assignment is to the effect that the verdict is contraryto the law applicable to the case and the second assignment is to the effectthat the verdict is against the greater weight or preponderance of evidence.
[1] The first assignment is so general and indefinite in its termsthat it fails to specify wherein the verdict is contrary to the law and,therefore, does not comply with Rule 12(2) of this Court. Hunter v. Sheppard(1947), 187 Tenn. 99, 213 S.W.2d 19; State ex rel. Melton v. Nolan (1930),161 Tenn. 293, 30 S.W.2d 601; Record v. Chickasaw Cooperage Co. (1902),108 Tenn. 657, 69 S.W. 334.
*548 [2] The second assignment presents no question which this Courtcan consider since the verdict of the jury was approved by the trial judgeand therefore, we connot weigh the evidence for the purpose of determiningwhich way it preponderates. Hampton v. Padgett (1967), Tenn.App., 414 S.W.2d12; Jones v. Noel (1947), 30 Tenn.App. 184, 204 S.W.2d 336; Nashville,C. & St. L. Ry. v. Harrell (1937), 21 Tenn.App. 353, 110 S.W.2d 1032;Barnes v. Scott (1950), 35 Tenn.App. 135, 243 S.W.2d 133; Memphis CastingWorks v. Bearing and Transmission Company (1951), 35 Tenn.App. 164, 243S.W.2d 145.
Therefore, the first and second assignments are respectfully overruled.
In the third assignment, plaintiffs assail the action of the trialCourt in refusing to permit an expert witness to express his opinion asto whether or not the defendant breached its duty to plaintiffs by failingto take certain precautions or install certain safety devices to preventthe occurrence of such an accident as that in question here.
The testimony which the plaintiffs insist the trial Court erroneouslyexcluded consists of a portion of the testimony of a structural engineer,one John C. Brough, Jr.
In order that the plaintiffs could have an opportunity to place theproffered testimony in the record, the jury was excused and Mr. Broughtestified that the 1968 building code of the City of Memphis provided forfencing and gates around man lifts such as that involved in this case andfurther provided for specific location of a sign warning persons usingthe man lift.
[3] However, according to this witness's testimony, this building coderequiring such fences, gates and signs *549 did not become effective untilJanuary 1, 1968, and therefore, the provisions of such building code werenot in effect at the time the accident occurred on June 10, 1967.
This proffered testimony was properly excluded by the trial Judge andthe third assignment of error is respectfully overruled.
In the fourth assignment, plaintiffs assail the action of the trialCourt in stating, in the presence of the jury, that the standard of carerequired of a common carrier **663 was not applicable under the facts ofthis case.
The remarks of the trial Judge which the plaintiffs assail in thisassignment of error, appear in the bill of exceptions and we find nothingimproper about such remarks.
[4] On the other hand, we think such remarks by the trial Judge werea correct statement of the law applicable to the case and were entirelyproper. We will discuss this proposition in more detail in consideringthe seventh assignment of error.
The fourth assignment is respectfully overruled.
In the fifth assignment, plaintiffs insist that the trial Judge erroneouslyrefused to give the jury a requested instruction as follows:
'LAW RELATIVE TO ABSENT WITNESS--Lady and gentlemen of the jury, ifit is developed from the testimony that there are available witnesses orwitness who have within his peculiar knowledge material and pertinent factsconcerning the matters under investigation who are under the control ofor the relations of those witnesses or that witness which one of the parties*550 are such that they would naturally favor that party, and that partyfails to call them without a reasonable explanation of their failure todo so, the jury may be warranted in inferring that his testimony wouldbe unfavorable to the party failing to call the witness.'
There is no evidence in the record to show that the defendant failedto call any available witness whose testimony would have been relevantto the case.
Apparently, the requested instruction was aimed at the defendant'sfailure to call as a witness the garage attendant who allegedly told plaintiffthat he was unable to find her automobile and said that she might helphim find it if she desired to do so.
[5] The defendant did not introduce any evidence at all and restedits case on plaintiffs' proof, but there is no evidence that this garageattendant (whose name does not appear anywhere in the record) was availableas a witness and therefore, it was not error for the trial Court to refusesuch requested instruction.
It has been held that it does not constitute reversible error for thetrial Court to refuse to charge a special request, which even though itcontains a correct statement of law in the abstract, is not applicableto the evidence. Methodist Hospital v. Ball (1961), 50 Tenn.App. 460, 362S.W.2d 475; Oliver v. Robert Moore & Co. (1873), 59 Tenn. 482.
The fifth assignment is respectfully overruled.
In their sixth assignment, plaintiffs assail the action of the trialCourt in refusing to give the following requested instruction:
*551 'Lady and gentlemen of to the jury, the Court charges you thatthe man-lift, which is involved in this case, is a dangerous instrumentality,so far as the uninstructed are concerned, and if you find that the plaintiffNell Cross Brown was in fact uninstructed; that she did not know or couldshe reasonably have been expected to know under the facts of this caseof the danger to which she was subjecting herself, and if you further findthat defendant's agent invited her to use the man-lift or, in the alternative,that said agent took no actions to stop the use of the man-lift by saidplaintiff amounting to an implied invitation; then, in that event, youmust find for the plaintiffs. However, if you find that the plaintiff knewor should have known that the man-lift was a dangerous instrumentality,but in spite thereof, undertook to use the same and you further find thatshe was not invited **664 by defendant's agent to use the manlift and/orthat said agent took action to stop her use of the man-lift, then, in suchevent, you shall find for the defendant.'
This requested instruction is not a completely accurate statement ofthe law, because it disregards the issues of contributory negligence andproximate cause.
[6] However, if these two elements of the law applicable to the casehad been included in the instruction, it would not have been error forthe trial Judge to refuse it, because his general charge includes all correctstatements of the law included in this special request. In his generalcharge, the trial Judge told the jury that the defendant conceded the manlift is a dangerous instrumentality, and when read in its entirety, thegeneral charge was adequate, covered all issues in the case and was notmisleading in any respect.
*552 In Harvey v. Wheeler (1967), 57 Tenn.App. 642, 423 S.W.2d 283,this Court said that when the charge of the Court, when read in its entirety,is adequate, covers the issues in the case, and is not misleading in anymaterial respect, it is not prejudicial error for the trial Judge to refusea special request which is substantially included in the general charge.Many other cases, including Jones v. Noel, supra, and Jack M. Bass &Co. v. Parker, infra, hold to the same effect.
The sixth assignment of error is respectfully overruled.
In their seventh assignment, the plaintiffs assail the action of thetrial Court in refusing to give the following instruction:
'DUTY OF COMMON CARRIER--With reference to the duty of care owed bythe defendant Allright Auto Parks, Inc. to the plaintiffs in this case,the law is this:
The defendant Allright Auto Parks, Inc. owed to the plaintiff NellCross Brown as a passenger on its man-lift, a type of elevator, the dutyto exercise the highest practical degree of care for the safety of thepassenger. That does not mean, lady and gentlemen, that the defendant isan insurer of the safety of one of its passengers. If that were the case,it would only be necessary for the plaintiff, in order to recover fromthe defendant to show that plaintiff was a passenger, and while a passengershe was injured. But that is not the law. The defendant Allright Auto Parks,Inc. is not an insurer, but the defendant is under the duty of exercisingthe highest practical degree of care, under the circumstances, for thesafety of its passengers. That means, lady and gentlemen of the jury, takinginto consideration all of the facts and circumstances surrounding *553the defendant, the kind of vehicle the defendant was operating, the kindof business that the defendant is engaged in, the kind of situs upon whichthe defendant was then and there operating its manlift, the condition ofthe premises, the speed of the man-lift, the control the defendant's agenthad over it, the manner in which the defendant's agent was operating, orfailing to properly operate, the man-lift under the circumstances. Takeinto consideration all of those things and say whether or not the defendant,through its agent employee measured up to the highest practical degreeof care of one under those circumstances. If the defendant parking garagecompany measured up to that degree of care, then it would not be guiltyof negligence. If said defendant fell below that standard, then it wouldbe guilty of negligence.'
In support of this assignment, plaintiffs city Jack M. Bass & Co.v. Parker (1960), 208 Tenn. 38, 343 S.W.2d 879; Southern Building &Loan Association v. Lawson (1896), 97 Tenn. 367, 37 S.W. 86; T.C.A. Section53-- 2601; 29 C.J.S. p. 1202 and Black's Law Dictionary definition of theword 'elevator.'
**665 However, an examination of these authorities fails to disclosethat any of them support plaintiffs' contention that the defendant wasexercising the function of common carrier.
In Vol. 13 Am.Jur.2d pages 560, 561, a common carrier is defined asfollows:
'A common carrier may be defined, very generally, as one who holdshimself out to the public as engaged in the business of transporting personsor property from place to place, for compensation, offering his services*554 to the public generally. The dominant and controlling factor in determiningthe status of one as a common carrier is his public profession or holdingout, by words or by a course of conduct, as to the service offered or performed,with the result that he may be held liable for refusal, if there is novalid excuse, to carry for all who apply.' 13 Am.Jur.2d pp. 560, 561, Carriers,Section 2.
In Nashvile & C. Railroad Company v. Massino (1853), 33 Tenn. 220,our Supreme Court defined a common carrier of passengers as follows:
'A common carrier of passengers is one, who undertakes for hire tocarry all persons indifferently who may apply for passage.' (Supra, p.225)
[7] We are of the opinion that the well recognized definition of acommon carrier cannot by any means, be stretched to include the defendant,under the facts and circumstances of this case, and therefore it was noterror for the trial Court to refuse this requested instruction.
The seventh assignment of error is respectfully overruled.
All of the assignments of error having been considered and overruled,the judgment of the trial Court is affirmed and the plaintiffs-appellantswill pay the costs of this appeal.CARNEY and MATHERNE, JJ., concur.
Tenn.App. 1970.
Brown v. Allright Auto Parks, Inc.,
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