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],
                                )
                                )             FILED
                                )
       Defendants/Appellants.   )                October 21, 1998
                                )
                                              Cecil W. Crowson
                                             Appellate Court Clerk

                   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
                                  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

                                          -2-
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 acknowledging its 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).

                                         -3-
             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 non-
             jury 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.

                                                -4-
                 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

                                             -5-
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.

                                   -6-
              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


                                          -7-
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).


                                      -8-
           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.

                                          -9-
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


                                             -10-
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 co-
          defendant) 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

                                            -11-
         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

                                       -12-
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




                                       -13-
-14-
