FILED

October 21, 1998

Cecil W. Crowson

Appellate Court Clerk

RUSTY JOLENE BEAL, )

)

Plaintiff/Appellee, ) Appeal No.

) 01-A-01-9801-CV-00024

v. )

) Davidson Circuit

JOHN DOE [and ) No. 94C-4165

Tennessee Farmers Mutual )

Insurance Company], )

)

Defendants/Appellants. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE BARBARA N. HAYNES, JUDGE

GEORGE M. ALLEN

Wischhof & Allen

110 Glancy Street, Suite 207

Goodlettsville, Tennessee 37072

ATTORNEY FOR PLAINTIFF/APPELLEE

THOMAS H. PEEBLES

G. BRIAN JACKSON

Trabue, Sturdivant & DeWitt

511 Union Street

25th Floor, Nashville City Center

Nashville, Tennessee 37219

ATTORNEYS FOR DEFENDANTS/APPELLANTS

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE
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OPINION

This is an appeal by Tennessee Farmers Mutual Insurance Company

and an unknown motorist alleged to be uninsured pursuant to the provisions of

Tennessee Code Annotated section 56-7-1201(e).

Rusty Jolene Beal filed suit against James M. Sloan as driver, and

William Sloan as owner of a vehicle which struck plaintiff vehicle in the rear on

White Bridge Road, Nashville, Tennessee January 2, 1994. The allegations

asserted proximate negligence, family purpose doctrine and injuries to the

plaintiff.

Beal was insured by Tennessee Farmers Mutual Insurance Company

under a policy providing $50,000 per person liability limits and $100,000 per

accident limits. The same limits were applicable to uninsured or underinsured

motorists.

Process was served on Tennessee Farmers Mutual under Tennessee

Code Annotated section 56-7-1206, and on February 8, 1995, Tennessee Farmers

answered admitting the policy of insurance and the limits therein and claimed

subrogation of $9,317.01 under the provisions of its medical pay clause. In this

answer Tennessee Farmers demanded a jury of twelve to try the cause and

provided further:

Tennessee Farmers Mutual Insurance Company ("Tennessee

Farmers") files this answer pursuant to T.C.A. § 56-7-1201,

et seq., and specifically reserves the right to defend in its

own name or in the name of the alleged

uninsured/underinsured motorist, pursuant to T.C.A. § 56-7-

1206.

In the original complaint Beal charged that the negligence of James

Sloan ". . . constituted the sole and proximate cause of the accident . . ."

On April 6, 1995, defendants Sloan filed an answer to the original

complaint admitting that the negligence of James M. Sloan was a proximate
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cause of the automobile accident but denying that such negligence was a

proximate cause of the injuries alleged by the plaintiff. In this answer defendants

Sloan demanded a jury of twelve to try the action just as Beal had demanded

such a jury in the original complaint.

On May 23, 1996, defendants Sloan filed an amended answer asserting

that an unknown driver of a vehicle had abruptly stopped ahead of plaintiff, thus

forcing plaintiff to abruptly stop and at least partially causing defendant Sloan

to strike plaintiff's vehicle in the rear. Thus, defendant Sloan sought through

comparative fault to allocate part of the responsibility to the unknown driver of

the unknown vehicle. Sloan reiterated his demand for a twelve person jury to try

the cause.

On May 24, 1996, Tennessee Farmers Mutual amended its answer by

adding the following:

15. Alternatively, this accident was proximately caused by

the negligence of an unknown driver, who caused the

plaintiff to stop abruptly and unexpectedly. The negligence

of the unknown driver was the sole proximate cause of any

injuries to the plaintiff. Alternatively, the negligence of the

defendant Sloan, if any, should be compared with that of the

unknown driver and/or the plaintiff, according to the

principles of comparative fault.

On July 5, 1996, plaintiff filed her first amended complaint making the

unknown driver a "John Doe" defendant and seeking judgment against both the

Sloan defendants and the unknown driver, John Doe.

On June 23, 1997, Tennessee Farmers Mutual filed an answer to the

amended complaint acknowledgingits defense of John Doe and again demanding

a twelve person jury to try the cause.

Tennessee Farmers made a tactical decision not to participate in the

trial of the case, acting pursuant to Tennessee Code Annotated section 56-7-

1206(a)(1994). See generally McCall v. Maryland Casualty Co., 516 S.W.2d

353 (Tenn. 1974).
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When the case came on for trial on the jury docket on June 25, 1997,

only counsel for the plaintiff Beal and counsel for the defendants Sloan appeared

for trial.

Counsel for these parties in the voluntary absence of counsel for

Tennessee Farmers waived their respective demands for trial by jury and

proceeded with a bench trial. At the close of the plaintiff's proof, the defendants

Sloan settled with plaintiffs and the bench trial continued between plaintiff and

the unknown motorist. Counsel for Tennessee Farmers appeared before the

completion of the proof and demanded that a jury be impaneled in accordance

with Tennessee Farmer's demand for a jury in its pleadings. Such demand was

denied by the trial court and the case taken under advisement as a bench trial.

On July 24, 1997, the trial court rendered its judgment in part as

follows:

Before the conclusion of the Plaintiff's proof, G. Brian Jackson,

primary counsel for John Doe and TFMIC, appeared at Court.

Immediately following completion of the Plaintiff's proof, said counsel

objected in open court to trial of the case non-jury and reiterated his

clients' demand that a jury be empaneled to hear the case. Counsel for

the Plaintiff objected to the right of counsel for TFMIC, who was not

present at the beginning of the trial, to later appear and contest the nonjury proceeding. Counsel for John Doe and TFMIC stated to the Court

that those parties were not withdrawing and had never withdrawn their

demand for a trial by jury.

After hearing the statements of counsel for the Plaintiff and

counsel for John Doe and TFMIC, the Court overruled the objection to

the non-jury proceeding and announced that the cause would be taken

under advisement and decided by the Court.

Having considered the proof, giving due weight to the demeanor

and credibility of the parties and the witnesses, and the entire record in

the cause, the Court finds the following:

1. The testimony of Defendant James M. Sloan, who was

not then and there an occupant of Plaintiff's insured

automobile, is clear and convincing evidence of the

contributory fault of a John Doe driver in the case at bar.

2. Rusty Jolene Beal reported the automobile accident at

bar to the appropriate law enforcement agency, to-wit the

Metropolitan Police Department, and was not negligent in

failing to determine the identity of the John Doe driver.

3. Total compensatory damages awarded to the Plaintiff

for personal injuries proximately resulting from the

automobile accident at bar are $44,750.00.
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4. The comparative fault of all parties alleged to have

contributed to causing the automobile accident at bar is

apportioned as follows:

James M. Sloan 50%

John Doe 50%

Tennessee Farmers filed post-trial motions protesting the non-jury trial

on a basis best articulated by the affidavit of attorney G. Brian Jackson, which

accompanied the July 30, 1997 motion for a new trial. This affidavit provided

in part:

2. The complaint in this case, which was filed on or around

December 20, 1994, contained a jury demand. On or around, February

8, 1995, I filed an answer on behalf of Tennessee Farmers. The answer

contained a jury demand. The named defendants, James Sloan and

William Sloan answered on or around April 6, 1995. Their answer

contained a jury demand. The case proceeded through discovery for

more than a year and a half. I participated actively in the discovery,

attending all depositions and participating in written discovery.

3. The plaintiff filed an amended complaint on July 29, 1996.

Tennessee Farmers answered the amended complaint on June 23, 1997.

This answer also contained a jury demand.

4. On or around November 25, 1996, the plaintiff moved to set

the case for trial. The motion moved to set the case "on the jury trial

docket...."

5. An agreed order was submitted to the court on around

December 4, 1996, setting the case "for trial to a jury on June 25, 1997

at 9:00 a.m...."

6. Some settlement negotiations took place in the spring of 1996.

Although I made an offer on behalf of my client, the parties were unable

to agree to resolve the case.

7. After careful consideration, I made a tactical decision not to

participate actively in the trial of the case. I knew the named

defendants' attorney to be capable and was confident he would keep the

plaintiff's damages low enough to avoid any underinsured motorist

coverage exposure. Because Tennessee Farmers had a subrogation lien

for medical payments, any underinsured exposure would require a

verdict of at least $35,000. I believed a jury would be unlikely to award

more than that amount. I also believed that the jury would be unlikely

to assess any substantial percentage of fault to "John Doe" if "John Doe"

was not represented at trial. For these and other tactical reasons, I

determined not to participate actively in the jury trial. In underinsured

motorist cases, it is relatively common for counsel to decide not to

participate actively in trials.

8. On or around April 30, 1997, I sent a letter to the counsel for

the named defendants informing him that I did not intend to participate

actively in the jury trial. I spoke with counsel for the named defendants

on June 18, 1997, again telling him that I would not be participating in
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the trial and discussing his strategy for defending the case at the jury

trial.

9. On June 19, 1997, I spoke to counsel for the plaintiff and

informed him that I would not be participating actively in the jury trial.

10. On or around June 23, 1997, I received proposed jury

instructions from the named defendants.

11. On June 24, 1997, I received a telephone call from the Court

concerning scheduling of the jury trial. I informed the Court that I

would not be actively participating in the trial, although I did expect to

monitor portions of it.

12. When I left the office on the afternoon of June 24, 1997, it

was my understanding that this case would be tried to a jury beginning

on June 25, 1997. At that time, the case had been designated as a jury

case for two and a half years. I had informed all parties and the Court

that I did not intend to participate in the trial of the case. At no point

had any party notified me of any intent to seek a nonjury trial, nor had

any party or the Court suggested that my attendance at the trial would

be necessary in order to ensure that the case proceeded as a jury trial.

Before [June] 25, 1997, the scheduled jury trial date, I never received

any notice whatsoever of any request by any party for a nonjury trial.

13. I had not been notified of any substantive pretrial matters to

be discussed before commencement of the jury trial. I expected that

voir dire would begin at 9:00 a.m. on [June] 25. Since I did not believe

my presence at voir dire to be necessary given the inactive role I was to

play in the trial, I planned to go by the Courthouse in the late morning

of [June] 25 to check on the progress of the trial. 

14. On the a.m. of [June] 25, 1997, I left my home sometime

between 8:30 and 9:00 a.m. I had to run an errand on the way to the

office and I arrived at my office in downtown Nashville around 9:15 or

9:20 a.m. After I arrived, Thomas H. Peebles III told me that he

received a call from the Court a few minutes earlier and had been

informed that the other parties were attempting to waive the jury trial.

Mr. Peebles told me that he had told the Court that a nonjury trial would

not be appropriate because Tennessee Farmers had demanded a jury.

15. I telephoned the Court and spoke to one of the judge's court

officers. She told me, "We tried to call you. The case is being tried."

I asked the court officer whether the case was being heard by the Court

or a jury. She indicated that a bench trial was in progress. I told her

that Tennessee Farmers objected to such a proceeding, that a jury had

been demanded, and that I would be at the courthouse immediately.

16. I spoke to Thomas H. Peebles III for a few minutes and left

my office and went to the Davidson County Courthouse as quickly as

possible. By the time I cleared security and actually arrived in the

courtroom, it was, to the best of my recollection, approximately 10:00

a.m. or shortly after 10:00 a.m.

17. When I arrived in the courtroom, plaintiff's counsel was

concluding his examination of the plaintiff. Neither the named

defendants nor their counsel was present in the courtroom. Plaintiff's

counsel briefly examined another witness.
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18. Following the plaintiff's proof, I approached the bench and

objected to the case being heard as a nonjury matter. The Court

overruled my objection and announced that the case would be taken

under advisement.

The July 30, 1997 motion for a new trial by Tennessee Farmers and

John Doe was overruled by the trial court on January 2, 1998 and these parties

appealed.

On appeal, Tennessee Farmers complains that having demanded trial

by a jury of twelve in its pleadings, trial by jury cannot be waived without its

consent. Appellant relies on Tennessee Rule of Civil Procedure 38.05 providing

in part, "A demand for trial by jury as herein provided may not be withdrawn

without the consent of all parties as to whom issues have been joined." Tenn. R.

Civ. P. 38.05 (1997-98).

Appellant further relies on Tennessee Rule of Civil Procedure 39.01

providing:

When trial by jury has been demanded as provided in

Rule 38, the action shall be designated upon the docket as a

jury action. The trial of all issues so demanded shall be by

jury, unless (a) the parties or their attorneys of record, by

written stipulation filed with the court or by oral stipulation

made in open court and entered in the record, consent to trial

by the court sitting without a jury or (b) the court upon

motion or of its own initiative finds that a right of trial by

jury of some or all of those issues does not exist under the

Constitution or statutes of the state of Tennessee.

Tenn. R. Civ. P. 39.01 (1997-98).

In this case, all parties had demanded trial by jury. When "John Doe

was made a defendant by amended complaint pursuant to T.C.A. § 56-7-1201(e)

Tennessee Farmers filed an answer on behalf of 'John Doe' and demanded a jury.

After participating in discovery Tennessee Farmers made a tactical decision not

to appear at trial and not to participate in the trial. This decision was predicated

in part on T.C.A. § 56-7-1206(a) providing in part: "Such companies shall

thereafter have the right to file pleadings and take other action allowable by law

in the name of the owner and operator of the uninsured motor vehicle or in its
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own name; . . ."

The basis of this decision is best stated by counsel for Tennessee

Farmers in his affidavit:

7. After careful consideration, I made a tactical decision not

to participate actively in the trial of the case. I knew the

named defendants' attorney to be capable and was confident

he would keep the plaintiff's damages low enough to avoid

any underinsured motorist coverage exposure. Because

Tennessee Farmers had a subrogation lien for medical

payments, any underinsured exposure would require a verdict

of at least $35,000. I believed a jury would be unlikely to

award more than that amount. I also believed that the jury

would be unlikely to assess any substantial percentage of

fault to "John Doe" if "John Doe" was not represented at

trial. For these and other tactical reasons, I determined not

to participate actively in the jury trial. In underinsured

motorist cases, it is relatively common for counsel to decide

not to participate actively in trials.

The dilemma confronting counsel for Tennessee Farmers in this case

is obvious. Prior to Chapter 313 of the Public Acts of 1989, now codified as

Tennessee Code Annotated section 56-7-1201(e), there was no uninsured

motorist coverage in the absence of physical vehicle contact. The effect of the

1989 act is stated by the Supreme Court:

. . . Prior to the 1989 amendment to Tenn.Code Ann. § 56-7-

1201, there could be no recovery unless there was actual

physical contact between the uninsured motorist's vehicle

and the insured's vehicle. See e.g., Hoyle v. Carroll, 646

S.W.2d 161 (Tenn.1983). The requirement of physical

contact with the vehicle operated by the unknown motorist

prohibited recovery in cases where the unknown motorist

caused the accident but there was no physical contact

between the vehicles. Subsection (e)(1)(B), enacted in 1989,

allows recovery in cases where, for example, the insured is

forced off the road by an unknown motorist without

physically striking the insured's vehicle. The high standard

of proof required by the amendment, clear and convincing

evidence produced by witnesses other than the occupants,

obviously was intended by the legislature as a safeguard

against bogus claims arising from one-vehicle accidents. Cf.

id. at 162.

Fruge v. Doe, 952 S.W.2d 408, 411 (Tenn. 1997).
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Counsel for Tennessee Farmers would be representing an "empty

chair" in front of they jury. The fear, real or imagined, is that the presence of

counsel defending the empty chair will suggest to the jury the existence of

liability insurance. It is also correct to say that counsel representing Sloan would

attempt to keep the damages of the plaintiff as low as possible.

The other horn of Tennessee Farmers' dilemma under this post 1989

"John Doe" case is that the interest of counsel for Sloan and Tennessee Farmers

is far from identical. It is Sloan who first asserted the existence of John Doe and

under comparative fault principles sought a companion to share the misery.

Plaintiff then amended his complaint to join "John Doe" with all parties fully

aware that in order to prevail against John Doe, Tennessee Code Annotated

section 56-7-1201, subsequent to 1989, required: "(B) The existence of such

unknown motorist is established by clear and convincing evidence, other than

any evidence provided by occupants in the insured vehicle."

Thus, it is evident long before the actual trial, that it is in the interest

of the plaintiff to prove the existence of "John Doe" and, even more importantly,

it is also very much in the interest of the defendant Sloan to prove both the

existence of "John Doe" and the highest possible comparative fault of "John

Doe".

Faced with these circumstances, counsel for Tennessee Farmers made

his tactical decision not only to not participate in the trial of the case but also not

to appear even as an observer. Thus, Tennessee Farmers deferred all trial

decisions to counsel representing the defendants Sloan.

The right to trial by jury is constitutional and jealously guarded by the

courts of Tennessee. Shook & Fletcher Supply Co. v. Nashville, 47 Tenn. App.

339, 338 S.W.2d 237 (1960).

It is likewise well settled in Tennessee that a party may either directly

or by implication waive this constitutional right to trial by jury. Russell v.
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Hackett, 190 Tenn. 381, 230 S.W.2d 191 (1950); Davis v. Ballard, 946 S.W.2d

816 (Tenn. Ct. App. 1996).

There is a marked division of authority among the federal courts and

among sister jurisdictions bound by that which is equivalent to Rules 38 and 39

of the Tennessee Rules of Civil Procedure. The discussion in Hall v.

Morozewych, 686 P.2d 708 (Alaska, 1984) is enlightening.

Our Civil Rules 38(d) and 39(a) are functionally identical to their

federal counterparts. Generally, if a defendant in federal court defaults

after having properly demanded a jury trial, he may insist on a jury trial

as to damage issues. Federal cases split on whether a party's

nonappearance is tantamount to a waiver of jury trial on liability.

Professors Wright and Miller take the position that "[f]ailure to appear,

in person or by counsel, at the trial should be considered a waiver of

jury trial". State case law demonstrates that the provisions of applicable

statutes or rules control resolution of the jury trial waiver issue. State

courts which have had occasion to apply statutes or rules similar to

Alaska Civil Rules 38(d) and 39(a) (i.e.: where express consent is

required for a waiver of a previously demanded jury trial) generally

refuse to treat non-appearance as a waiver. Typical of such decisions

is Loiselle v. Gladfelter, 160 So.2d 740 (Fla.App.), aff'd, 165 So.2d 767

(Fla.1964). In that case, the Florida Court of Appeals recognized the

"divergent views of our sister states based upon their particular statutes

or rules of procedure," and also acknowledged the split in federal

authority. 160 So.2d at 742. Interpreting a rule of civil procedure that

required "the consent of the parties" before a demand for jury trial could

be withdrawn, the court concluded that "waiver by implication in these

circumstances must be more than a mere failure to appear and contest

the issues of the case." Id. 

Given the provisions of Civil Rules 38(d) and 29(a), and our ruling

in Hill v. Vetter, 525 P.2d 529 (Alaska 1974), we hold that the superior

court erred in trying this case without a jury. The judgment against Hall

is set aside and the matter remanded to the superior court for a jury trial

on the issues of liability and damages. 

686 P.2d 708, 711-712 footnotes omitted.

Whatever may be the restrictions on implied waiver in federal courts

and in other state jurisdictions, it is clear that Tennessee still follows Russell v.

Hackett, 190 Tenn. 381, 230 S.W.2d 191 (1950). Davis v. Ballard is a 1996

decision of the Western Section of the Court of Appeals with application for

permission to appeal having been denied by the Supreme Court on April 7, 1997.

In this case, both Davis and Ballard had demanded a jury in their pleadings.

Ballard failed to appear at trial and Davis waived his right to trial by jury and
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proceeded with a bench trial. Ballard appealed. Said the Court of Appeals:

[1] Ballard argues that he never agreed or consented to the case

proceeding to trial without a jury, and that he did not waive his right to

have his case heard and decided by a jury. Although the waiver of a

jury demand requires the consent of all parties, that waiver may be

either express or implied. Russell v. Hackett, 190 Tenn. 381, 230

S.W.2d 191, 192 (1950). In Russell, the Tennessee Supreme Court held

that a co-defendant who did not appear at trial waived his right to a jury

trial by implication. Id. The Supreme Court said, "Taylor (the codefendant) having been properly brought before the trial court by

service of process, did not appear and defend the suit. Therefore, his

consent to the waiving of the jury was implied." Id. In that case, the

plaintiff originally demanded a jury but waived that demand after the

co-defendant failed to appear. The trial was conducted in his absence,

and the judgment for unliquidated damages awarded by the trial court

sitting without a jury was upheld. Id.

[2] The law in 1950 required that both parties consent before

demand for jury could be waived. The Supreme Court held that the

failure to appear is an implied consent to the waiver of jury trial. Id.

Our present law requiring all parties to consent to waiver of a previous

jury demand, Tenn.R.Civ.P. 38.05, is the same that existed when the

Supreme Court decided Russell. Therefore, we must follow the

Supreme Court's ruling in Russell. In the instant case, Ballard did not

appear at trial, "[t]herefore, his consent to the waiving of the jury was

implied." Id.

[3] Ballard also argues that there can be no implied waiver

because of the circumstances of this case. Ballard's counsel claims that

he extended Davis's counsel common courtesy by allowing him to

continue the trial when it was first scheduled. When the case was called

the second time, Davis proceeded without Ballard. Ballard asserts that

Davis's counsel should have returned the favor. Davis's attorney argued

that Ballard had procrastinated and delayed the trial, and that he felt it

was time to zealously represent his client. While we believe that

professional courtesy should be the norm of our profession, there is

nothing legally wrong with the actions of Davis's counsel.

Accordingly, the judgment of the trial court is affirmed, and the

case is remanded for such further proceedings as are necessary. Costs

of the appeal are assessed against the appellant.

Davis v. Ballard, 946 S.W.2d 816, 817 (Tenn. App. 1996).

In this case Tennessee Farmers made a tactical decision not only to

forego any actual participation in the trial but, in effect, to abdicate all defense

responsibility to counsel representing Sloan. In its brief counsel poses an

hypothesis:

. . . For economic and strategic reasons, uninsured motorist

carriers often elect not to participate directly in trials. For

example, consider the following hypothetical situation: a

plaintiff in an automobile accident case alleges $3,000 in
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medical expenses and prays for $100,000 in damages. She

carries $100,000 in uninsured/underinsured motorist

insurance. She sues the driver of the other vehicle involved

in the accident and serves her own uninsured motorist carrier

with the complaint. The named defendant driver has minimal

$25,000 limits and is defended by able counsel. Under this

scenario, the uninsured motorist carrier theoretically is

exposed to a potential $75,000 in damages (the difference

between the named defendant's liability limits and the

plaintiff's underinsured limits). However, the carrier may

determine that it is highly unlikely that the plaintiff will

recover more than $25,000 for a claim based on $3,000 in

medical expenses. The carrier may further decide that adding

another lawyer to the defense team will simply increase the

likelihood that the jury will divine the existence of

substantial insurance and increase the plaintiff's award

accordingly. Finally, the carrier would be required to incur

a significant expense if its counsel participated in the trial,

expense that might not be worth the slight risk of loss and

might actually be harmful. Therefore, the UM carrier in such

a case might appropriately decide to monitor the case but to

take no active role in the trial.

This hypothetical scenario is extremely common. In each

UM case, the UM carrier must determine the level of

participation appropriate for the particular case and the risks

involved. Often the carrier's counsel will attend depositions

and selected portions of the trial but will not sit at counsel

table or otherwise taken an active role before the jury.

This hypothesis assumes correctly that the interest of counsel

representing the defendant driver on behalf of his own liability carrier has the

same interests in the case as the non-participating, underinsured carrier. The

hypothetical is meaningless when applied to counsel for the defendants Sloan

whose interest parallels the uninsured motorist carrier interest only to the extent

that both would seek to hold the plaintiff's damages to a minimum. Counsel for

the underinsured Sloan has a vital interest in transferring comparative fault to

"John Doe", an interest inimical to the interest of Tennessee Farmers

representing John Doe. The first and foremost duty of counsel for Sloan was to

take care of the interest of Sloan. This he did by waiving his demand for trial by

jury and settling with the plaintiff. These actions left unchallenged the testimony

of defendant James M. Sloan that provided the basis for the trial court finding

comparative fault of John Doe. The court specifically found: "1. The testimony
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of defendant James M. Sloan, who was not then and there an occupant of

plaintiff's insured automobile, is clear and convincing evidence of the

contributory fault of a John Doe driver in the case at bar." 

The record does not disclose any agreement among counsel not to

withdraw their respective jury demands. 

The tactical decision not to participate in the trial by Tennessee

Farmers and not to monitor the case when the trial began effectively left counsel

for plaintiff and counsel for defendants Sloan to their own devices and the

appearance of counsel for Tennessee Farmers after the jury had been waived by

all counsel electing to participate in the trial comes too late. The reasoning of

Russell v. Hackett and Davis v. Ballard is persuasive under the facts of this case.

Tennessee Farmers also objects to the action of the trial court in

assessing discretionary costs against Tennessee Farmers. This is a matter in the

sound discretion of the trial judge and this court sees no abuse of discretion.

Perdue v. Green Branch Mining Co., 837 S.W.2d 56 (Tenn. 1992).

The judgment of the trial court is in all respects affirmed, and the case

is remanded for such further proceedings as are necessary. Costs are assessed to

appellants.

_______________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

_________________________________________

BEN H. CANTRELL, PRESIDING JUDGE, M.S. 

_________________________________________

WILLIAM C. KOCH, JR., JUDGE 
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