author: COOPER, Chief Justice.

text:
    SHOPPERS GUIDE PUBLISHING COMPANY, INC., Appellant, v. Jayne Ann WOODS, Commissioner of Revenue, State of Tennessee, Appellee.
    Supreme Court of Tennessee.
    March 7, 1977.
    Stuart E. Duncan, Duncan & Secor, P. C., Chattanooga, for appellant.
    David S. Weed, Asst. Atty. Gen., Brooks McLemore, Jr., Atty. Gen., Nashville, for appellee.
   OPINION

COOPER, Chief Justice.

Shoppers Guide Publishing Company of Tennessee, Inc., has appealed from a decree dismissing an action brought to recover sales and uses taxes paid to the State of Tennessee under protest. The primary issue, as stipulated by the parties is the “determination of whether or not the sales and/or use tax of the State of Tennessee is applicable and properly assessed against the [appellant] in this cause for its activity connected with the fabrication of its publication known as the ‘Shoppers Guide.’ ”

The appellant is the publisher, printer, and distributor of a weekly publication known as the “Shoppers Guide,” which is distributed free to persons residing in the Chattanooga metropolitan area. The publication, which resembles a tabloid newspaper in form, contains no news articles but is devoted to want-ad type of advertising and to advertisements placed by local and national merchants. In addition, individuals and groups are permitted to and do place announcements of local events such as church socials and local sporting events in the publication. Some of the announcements are published without cost to the sponsor, while other sponsors are charged for the announcements.

In 1965, in making application for a Sales or Use Tax Certificate of Registration, appellant stated it intended to sell newspapers and, consequently, was granted an exemption from sales or use tax for activities connected with the “Shoppers Guide.” See T.C.A. § 67-3012. Upon audit of appellant’s businesses in 1975, appellee concluded that appellant was not selling or distributing newspapers, but was fabricating advertising circulars for free distribution; consequently, the appellee withdrew the exemption previously granted appellant and assessed a tax deficiency against appellant in the amount of $13,753.38, for the period February 1,1972, through January 31,1975. Appellant paid the assessment, under protest, and brought the present action. Appellant contended that the activities attendant to the publication, printing, and distribution of the “Shoppers Guide” were not subject to the sales and use tax as:

(1) The publication of the “Shoppers Guide” is not the use of tangible personal property, but rather the performance of a service which is not taxable under the Sales or Use Tax of the State of Tennessee;

(2) It is a newspaper within the meaning of the Retailers’ Sales Tax Act;

(3) The printing and publishing of “Shoppers Guide” without sale thereof was exempt from sales and use taxes under Rule 67 of the Commissioners’ Rules and Regulations; and

(4) The imposition of a sales or use tax on the appellant deprived the appellant of its constitutional protections of freedom of speech and freedom of the press.

The chancellor held that “the procurement of paper and the printing of the advertisements in the form of the ‘Shoppers Guide’ was the fabrication of tangible personal property and the use subject to taxation as a privilege,” and dismissed appellant’s complaint. We affirm his action.

It is the declared intent of the legislature that “every person is exercising a taxable privilege who engages in the business of selling tangible personal property at retail in this state, or who uses or consumes in this state any item or article of tangible personal property as defined in the chapter, . . ..” T.C.A. § 67-3003.

Tangible personal property is defined in T.C.A. § 67-3002(1) as “personal property, which may be seen, weighed, measured, felt or touched, or is in any other manner perceptible to the senses.”

In keeping with the expressed intent of the legislature, it is provided in T.C.A. § 67-3004 that:

“Where a manufacturer, producer, compounder or contractor erects or applies tangible personal property, which he has manufactured, produced, compounded or severed from the earth, such person so using the tangible personal property shall pay the tax herein levied on the fair market value of such tangible personal property when used, without any deductions whatsoever.”

The Commissioner of Revenue promulgated Rule 103(a), interpreting the above section, which provides that:

“a. Any manufacturer, producer, com-pounder, or contractor who fabricates in any manner, any tangible personal property, here its form is changed to some other kind of personal property, . shall pay a Sales or Use Tax upon the fair market value of the fabricated property,

The chancellor concluded that the bringing together and combining of the raw materials, such as paper, ink, dies, plates, and the like, and their use in the printing of the advertisements in the form of the “Shoppers Guide” is a fabrication of tangible personal property and is a use of the property subject to taxation as a privilege. We agree. See T.C.A. § 67-3004 and Young Sales Corp. v. Benson, 224 Tenn. 88, 450 S.W.2d 574 (1970). Cf. Commerce Union Bank v. Tidwell, 538 S.W.2d 405 (Tenn.1976), wherein computer software was held not to be tangible personal property since no product was created and what was created and sold was information.

Appellant argues that even if the bringing of the “Shoppers Guide” is a fabrication of tangible personal property, the tax was improperly assessed as the “Shoppers Guide” is a newspaper and, as such, is specifically exempt from sales and use tax.

T.C.A. § 67-3012 exempts “newspapers” from the operation of the Sales and Use Tax Act. While the statute does not define a “newspaper,” Rule 46 of the State Sales and Use Tax Rules and Regulations promulgated by the Commissioner of Revenue, sets forth minimum criteria for a publication to qualify for the exemption granted a “newspaper.” Rule 46 provides in pertinent part that:

“b. in order to constitute a newspaper, the publication must contain at least the following elements:
(1) It must be published at stated short intervals (usually daily or weekly).
(2) It must not, when its successive issues are put together, constitute a book.
(3) It must be intended for circulation among the general public.
(4) It must contain matters of general interest and reports of current events,
c. Notwithstanding the fact that the publication may be devoted primarily to matters of specialized interest, such as legal, mercantile, political, religious or sporting matters, if, in addition to the special interest it serves, the alleged newspaper contains general news of the day, information of current events, and news of importance and of current interest to the general public, it is entitled to be classed as a newspaper.

The criteria promulgated by the Commissioner are in accord with the generally accepted usuage of the term “newspaper.” See Pope v. Craft, 1 Tenn.App. 356 (1925), wherein the court quoted the following definition as being the ordinary understanding of the word “newspaper:”

“A publication containing a narrative form of certain events and occurrences published regularly, at intervals, from time to time, and the publishing at intervals has always been deemed necessary to constitute a newspaper.” 1 Tenn.App. at 365.

See also Green v. Home News Publishing Co., 90 So.2d 295 (Fla.1956); Hermenet v. Wykle, 64 Misc.2d 57, 314 N.Y.S.2d 204 (1970); Newspapers, Periodicals, etc., 58 Am.Jur.2d, Sec. 4.

The “Shoppers Guide” meets the first three criteria of Rule 46 without question. The dispute is whether it meets the fourth requirement. Appellant, of course, insists that advertising is a type of news, is of general public interest, and, so far as merchandising is concerned, is of a current event.

While no court in this state has dealt with the specific issue of whether a publication devoted solely to commercial advertising is a “newspaper” for the purpose of the Sales and Use Tax, the issue was considered by the Supreme Court of Florida in Green v. Home News Publishing Co., supra. That court concluded that such a publication is not a “newspaper” within the meaning of the sales tax act. The court stated:

“The ‘Shopper Advertiser’ unquestionably has for its principal purpose the advertising business concerns in the area and not the dissemination of news. It is, in practical effect, simply an advertising ‘giveaway,’ even though a modicum of local news and other material found in newspapers is included.”

The “Shoppers Guide” does not contain even a modicum of local news. In fact, no attempt is made to include any “general news of the day, information of current events, [or] news of importance and of current interest to the general public.” In fact, the “Shoppers Guide” is no more than a series of advertising handbills in a newspaper format. We agree with the chancellor that such a publication is not a “newspaper” in the common and popularly accepted usage of the term and does not qualify for the exemption granted under T.C.A. § 67-3012.

Appellant argues that if the “Shoppers Guide” is not a newspaper, it is an advertising circular and is not subject to sales or use tax since it is given away.

Rule 67 of the State Sales and Use Tax Rules and Regulations deals generally with the printing industry and in paragraph (a) speaks of the sale of advertising circulars with the sales tax being based on the selling price. From this, appellant reasons that since there is no sale of the “Shoppers Guide,” the fabrication of the paper cannot be taxed.

So far as we can tell from the pleading and the memorandum of the chancellor, this theory was not advanced in the trial court. But, in any event, we do not agree that the relief of the printing industry from payment of the tax imposed on those who fabricate tangible personal property to produce a multi-page advertising “give-away” is a necessary corollary to the express imposition of a tax on the sale price of advertising circulars. To the contrary, the stated intent of the legislature is to tax every retail sale of tangible personal property and every use of personal property in this state, except for exceptions expressly stated in the Retail Sales Act. We find nothing in the Act, nor in the Rules and Regulations promulgated by the Commissioner of Revenue under the Act, which excepts the fabrication of a multi-page advertising paper from taxation merely because the fabricator elects to give it away, thus limiting its income from the paper to revenue from advertisers.

Appellant also contends that the imposition of a sales or use tax on appellant is an attempt to impose a tax on the transmission and upon the privilege of communicating the advertising message from the purchaser of the advertisement to the general public at large, and that this is a violation of appellant’s First Amendment right of freedom of speech and the freedom of the press. We see no merit in this contention. The tax in question is not upon the privilege of disseminating information to the public. It is a general tax applying to all persons, whatever their business, who fabricate tangible personal property.

Decree affirmed. Costs incident to the appeal are adjudged against appellant, Shoppers Guide Publishing Company, Incorporated, and its surety.

FONES, HENRY, BROCK and HARBI-SON, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Dennis HELTON, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    March 7, 1977.

      B. C. Mclnturff, Kingsport, for petitioner.
    David L. Raybin, Asst. Atty. Gen., R. E. Ashley, Jr., Atty. Gen., Nashville, for respondent.
   OPINION

COOPER, Chief Justice.

Petitioner, Dennis Helton, was convicted of second degree murder for the slaying of his wife, Linda Helton, and was sentenced to serve fifteen years in the penitentiary. The Court of Criminal Appeals, with one judge dissenting, affirmed the conviction. This court granted certiorari, primarily to determine if the trial judge, as the thirteenth juror, approved the verdict of the jury.

Petitioner and Linda Helton were married on three different occasions. The break-up of the first two marriages was due to Mrs. Helton’s association with Jerry Lawson. After the second divorce, Mrs. Helton married Mr. Lawson. The break-up of that marriage was encouraged by petitioner. From these facts and other evidence, it is apparent that most of the turbulence in the relationship between petitioner and Linda Helton had its origin in the attention paid Mrs. Helton by Jerry Lawson.

Mrs. Helton was killed on July 26, 1974, by a shot from a pistol fired by petitioner. Ironically, the killing occurred on the day the Heltons had planned to take their family to Nashville on a “third” honeymoon.

Petitioner’s version of events leading up to the shooting and the shooting itself, is set forth in the following statement given the arresting officers:

“I got off work at the Dodge plant at 11:30 today. I started home and saw my truck at East Gate Shopping Center. I stopped and went in Super Dollar and Dollar General and Lays 5 & 10 store looking for my wife. I didn’t find my wife so I went on home. About 2:30 P.M. I called Marge Lamb and she said Linda had brought the kids up their about 8:00 A.M. so she could go to the doctor. About 2:45 P.M. I started back to town to see if I could find my wife. I met my wife coming out of Striggersville. She was following her ex-husband Jerry Lawson. My wife and I have been married three times. Both divorces and separations one time after another was because of him, Jerry Lawson. I turned around and followed my wife. I pulled around her and she pulled in behind me. I went back to the truck and opened the door. I asked Linda where she had been. Linda said she had been to the doctor. Then I asked her if she had been with Jerry. Linda said no. I knowed you would blame me with it when you seed us together. I then slapped her in the face. Linda then slapped me in the face and said I’ll kill you and jerked the truck door closed. Linda went home and I followed her. Instead of stopping in the driveway, Linda pulled the truck all the way to the front door and ran inside the trailer. I followed Linda in the trailer, when I went through the front door, Linda was just stepping off the chair at the sink. Linda was getting the gun out of the holster. The gun was a .38 and was always kept loaded on top of the cabinets over the sink. I grabbed Linda and we wrestled over the gun. I got the gun away from her. When Linda saw I had the gun she turned to run into the living room. The next thing I knew, the gun went off. I ran and grabbed her. I didn’t think she was hit until I saw the blood on my hand. Linda said she was sorry and I said you was with him and she shook her head yes. I had laid her in the floor and called the Rescue Squad. I stayed with Linda until the Rescue Squad came.”

In addition to the statement, the State’s proof showed that Mrs. Helton was found in the front room of the trailer, with one bullet hole in her back. A dish towel was wrapped several times around her right hand in a manner to make it difficult, if not impossible, for her to have held a gun. There was a bullet hole in the door separating the kitchen of the trailer from the living room, indicating that the fatal shot was fired when Mr. Helton was in the kitchen and his wife in the front room. The pistol used in the killing was found to have one spent shell and two live shells in it.

In overruling petitioner’s motion for a new trial, which was filed in an effort to set aside the jury’s verdict of guilty of second degree murder, the trial judge stated:

“Before the trial of this case, I was familiar with all the parties. That was during my private practice. I represented one of them in some trouble that was had. There is only one thing, of course, that worries me, and that is, that if the jury-returns a verdict of guilty and there is evidence to sustain it I feel that I am almost bound to overrule the motion for a new trial. If I had been on the jury, I would have returned a conviction of voluntary manslaughter. [Emphasis supplied].
“While I know in the charge of murder in the first degree and involuntary manslaughter as well as murder in the second degree any talk about sudden heat of passion, I can understand how the defendant was upset. As I say, I was familiar with the situation before it happened. If I had the jurisdiction to do so, I think I would reduce it but I feel I do not have that jurisdiction. I feel really that the verdict was somewhat harsh. “I know that the defendant loved his wife. I know that from previous experience in the trial between these parties. I know the difficulty that he encountered at other times. I know the animosity of the family of the wife toward the deceased, but in spite of that I feel that there is evidence to sustain the verdict of the jury, and it is necessary on that basis that I deny a motion for a new trial.”

In announcing the verdict and sentencing the defendant the trial judge made this additional statement:

“You, I am sure, want to appeal the ruling of the Court, and I might state to the court reporter that I would like for the remarks that I made to go into the record, and I will state further to the defendant and to the attorneys for the defendant if the Court of Criminal Appeals does affirm the judgment of the Court and the verdict of the jury, after he has seryed a certain length of time if there is anything that I can do to reduce it, I’ll do it.”

The remarks of the trial judge set out above indicate to us that he was not satisfied with the jury’s verdict. Specifically, the trial judge expressed dissatisfaction with the degree of homicide of which petitioner was convicted. Despite this dissatisfaction, the trial judge overruled the motion for new trial. This was error which requires that petitioner be given a new trial.

It is settled in this state that in all instances where there is a trial by jury, the trial judge is under the burden of acting as the thirteenth juror to either approve or disapprove the verdict of the jury. White v. State, 490 S.W.2d 502 (Tenn.1973); Messer v. State, 215 Tenn. 248, 385 S.W.2d 98 (1964); Hime v. Sullivan, 188 Tenn. 605, 221 S.W.2d 893 (1949); Mize v. Skeen, 63 Tenn.App. 37, 468 S.W.2d 733 (1971). See also Curran v. State, 157 Tenn. 7, 4 S.W.2d 957 (1928), wherein this court quotes with approval the following statement of Mr. Justice McKinney in Durant v. State, Manuscript Opinion, filed May 2, 1925:

“[UJnder our system, (a) the trial court exercises the function of a thirteenth jur- or; (b) that he must weigh the evidence, pass upon the issues, and decide whether they are supported by the evidence; (c) where he fails to do this the case will be reversed and remanded for a new trial; and (d) ‘that he must be satisfied, as well as the jury’ (meaning, in a criminal case, satisfied that the defendant is guilty).”

In State v. Ferguson, 165 Tenn. 61, 64, 52 S.W.2d 140, 141 (1932), this court stated: “ * * * Under our practice, if the trial court is of the opinion that the verdict is not sustained by the evidence, all that he can do is to grant a new trial.”

And in Messer v. State, supra, this court granted a new trial where the trial judge expressly indicated that he did not approve the degree of homicide of which the defendant was convicted.

Petitioner also has complained of the fact that the trial judge, in instructing the jury, characterized the statement he made to the investigating officers as a confession. Petitioner insists that it was no more than an admission against interest and should have been so characterized. The distinction between an admission and a confession is blurred. Generally, however, “a ‘confession’ is a statement by the accused that he engaged in conduct which constitutes a crime. ... An admission is an ac-knowledgement by the accused of certain facts which tend together with other facts, to establish his guilt; while a confession is an acknowledgement of guilt itself. An admission, then, is something less than a confession and, unlike a confession, putting to one side the problem of corroboration, an admission is not sufficient in itself to support a conviction.” 3 Wharton’s Criminal Evidence (13th ed. Torcia 1973), §§ 662 and 663. See also Collins v. State, 169 Tenn. 393, 88 S.W.2d 452 (1936).

Here, the petitioner admitted shooting his wife, but not his guilt to the offense with which he was charged, nor for that matter any offense. To the contrary, petitioner asserted the defenses of self-defense and accidental shooting, both of which are compatible with his statement if the statement is taken at face value. The statement properly then should be characterized as an admission and, on remand, the jury should not be instructed on “confession” and its effect.

The judgment of the trial court is reversed and the case is remanded for a new trial.

FONES, HENRY, BROCK and HARBI-SON, JJ., concur.


author: BROCK, Justice.

text:
    Mark Harry GOLDFARB, Appellant, v. Arthur Jackson BAKER, Appellee.
    Supreme Court of Tennessee.
    March 7, 1977.

      Sam P. Bradley, Holt, Batchelor, Spicer, Gaerign & Ryan, Memphis, for appellant.
    Richard Lodge, Robert B. Littleton, Asst. Attys. Gen., R. A. Ashley, Jr., Atty. Gen., Nashville, for appellee.
   OPINION

BROCK, Justice.

This is an action for damages for “outrageous conduct.”

The plaintiff, Mark Harry Goldfarb, alleges that he is a Memphis State University student who was enrolled in a course taught by the defendant Baker. During a class meeting, an unidentified prankster entered the classroom, threw a pie, which struck the defendant professor, and ran away. The complaint further alleges that the angered professor immediately accused the plaintiff of the assault; that on the next day defendant forbade plaintiff to attend class; had him ejected from the building when he attempted to take his seat; and, in the presence of others, accused him of attempting to blackmail the defendant. The plaintiff, a former state prisoner, sought to show that because of this episode he was falsely portrayed as a lawless individual whose attempted rehabilitation had failed, that he lost the confidence of his associates, and was frustrated in his effort to reform his life. He alleges that the actions of the defendant have caused him extreme mental anguish, humiliation, depression and distress. The trial court, finding the defendant’s alleged conduct not to be sufficiently outrageous to be actionable, dismissed the complaint for failure to state a claim.

It has proven to be difficult to formulate an objective legal standard for determining whether or not particular unseemly conduct is so intolerable as to be tortious. The Restatement (2d) of Torts informs us that it is not enough, according to the cases,

“. . . that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” Restatement (2d) of Torts, § 46, Comment d.

It has been held that the defendant’s conduct must be so outrageous in character and extreme in degree as to be beyond the pale of decency and that it must have caused serious mental injury to the plaintiff. The conduct must be “atrocious,” “utterly intolerable,” and “beyond all bounds of decency.” Medlin v. Allied Investment Co., 217 Tenn. 469, 398 S.W.2d 270 (1966); Johnson v. Woman’s Hospital, Tenn.App., 527 S.W.2d 133 (1975).

Moreover, conduct which would be intolerable if unprovoked may be excused if it results from circumstances of annoyance or stress. In the Restatement example, the defendant A suffers the relatively minor frustration of being unable to place a telephone call. He calls the operator, B, “a God damned woman, a God damned liar, and says that if he were there he would break her God damned neck.” B suffers not only emotional distress, but illness, in consequence of the incident. Nevertheless, A is not liable for his insulting behavior. Id., Illustration 4 to Comment d. By contrast, acts of an obviously heartless, flagrant, or extortionate character are actionable, such as falsely reporting to the plaintiff that her husband has been severely injured in an accident, [Illustration 1, Wilkinson v. Downton, 2 Q.B.D. 57 (1897)], threatening the plaintiff with harm to himself and destruction of his property and business if he does not pay over his profits to the defendant [Illustration 2, State Rubbish Collector’s Association v. Siliznoff, 38 Cal.2d 330, 240 P.2d 282 (1952)] or furnishing a guest at a swimming party with a bathing suit that will dissolve in water (Illustration 3).

This complaint shows that the defendant acted under provocation. The plaintiff claims that he was innocent of any wrongdoing in the pie-throwing episode but not that the defendant knew, or that he should have known, that he was making a false accusation. Although the accusation of blackmail was excessive, still it was the product of a sudden, unjustified, and humiliating attack by someone upon the defendant. The plaintiff was warned that he would be excluded from class because of his supposed conduct and apparently did not protest his innocence at that point. With no reason to believe he was acting against the wrong person, the defendant apparently was justified in taking measures to prevent further disorder in his classroom. We hold that the facts alleged do not state a cause of action. The facts alleged in the complaint do, indeed, constitute a misfortune for the plaintiff. However,

“ ‘Against a large part of the frictions and irritations and clashing of temperaments incident to participating in community life, a certain toughening of the mental hide is a better protection than the law could ever be.’ Magruder, Mental and Emotional Disturbance in the Law of Torts, 1936, 49 Harvard L.Rev. 1033, 1035.” Medlin v. Allied Investment Co., supra, 398 S.W,2d at 274.

The present case is among those frictions and irritations. The judgment of the trial court is affirmed. Appellant will pay the costs incident to this appeal.

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


text:
    VARNER CONSTRUCTION CO., INC., Appellant, v. MID-SOUTH SPECIALTIES, INC., Appellee.
    Supreme Court of Tennessee.
    March 7, 1977.

      Ralph D. Golden, Ben G. Sissman, Memphis, for appellant.
    Larry B. Creson, Jr., Memphis, for appel-lee.
   OPINION

BROCK, Justice.

This is an action to recover upon a contractor’s bond conditioned to pay for labor and materials furnished in the performance of a contract to construct a fire station for the City of Memphis. We must determine which statute of limitations is applicable and whether or not the suit is barred.

Defendant, Varner Construction Company, was the general contractor and executed the bond in question as required by T.C.A. § 12-417. The plaintiff, Mid-South Specialties, a remote subcontractor, furnished labor and materials to Southwest Roofing and Supply, Inc., a subcontractor, for use in a portion of the roof construction on the project. Because Southwest later filed bankruptcy proceedings listing the plaintiff’s claim, the plaintiff now seeks to satisfy that claim in this action upon the bond of the defendant general contractor.

T.C.A. § 12-417, in pertinent part, provides:

“Contractor’s bond to pay for labor and materials — No contract shall be let for any public work in this state, by any city, county or state authority, until the contractor shall have first executed a good and solvent bond to the effect that he will pay for all the labor and materials used by said contractor, or any immediate or remote subcontractor under him, in said contract, in lawful money of the United States. . . .”

Another section of the Public Works Act, T.C.A. § 12-422, prescribes a special period of limitations of six months for actions seeking to recover on bonds required by T.C.A. § 12-417, whereas, the period of limitations for actions on contracts generally is six years, as prescribed by T.C.A. § 28-309. This suit was filed more than six months, but less than six years, after the cause of action accrued. Defendant contends that the special six months limitation applies thus barring the action, while plaintiff contends that the proper limitation is the six years period and, thus, that the suit is not barred. The Chancellor held that the plaintiff was correct and overruled the plea that the action was barred.

The bond was required of the defendant by the City of Memphis and provides that defendant will:

“. . . assure and protect all laborers and furnishers of material ... as required by Tennessee Code Annotated Sections 12 — 417—12-424, as amended, and also independently of said statutes.” (Emphasis added.)

The plaintiff argues that the language, “and also independently of said statutes,” operates to convert what is otherwise a “statutory bond” into a “common law bond,” thus rendering any suit upon it subject to the six years limitation period provided by T.C.A. § 28-309, rather than the six months period of limitations prescribed by T.C.A. § 12-422.

The plaintiff relies upon the decision of this Court in Hogan v. Walsh & Wells, 180 Tenn. 670, 177 S.W.2d 835 (1944), in which it was held that language identical to that quoted above served to excuse claimants from giving the notice required by T.C.A. § 12 — 421, also part of the Public Works Act. In that case, the Court. concluded that by adding the clause, “and also independently of said statutes,” to the stipulations required by T.C.A. § 12 — 417, the parties intended that the claims of laborers and fur-nishers of materials and labor were not to be subject to the technical provisions of the Public Works Act, T.C.A. § 12-417 — 12-424, designed for the protection or benefit of the general contractor and surety, e. g., the filing of notice of claim; it was considered that by agreeing to the addition of such a clause, the general contractor and surety, waived such protective provisions. Accordingly, it was held that the plaintiff claimant was entitled to recover on the bond although he had not given a written notice of his claim as prescribed by T.C.A. § 12 — 421. We agree with the plaintiff and the Chancellor that the Hogan decision should control our disposition of the case at bar in the absence of other circumstances indicating a different intention of the parties.

As noted in Hogan, the parties are free to add such clauses to the bond required by the Public Works Act and they do so voluntarily; and, in the case at bar, it must be presumed that the parties added the clause in question while fully aware of this Court’s decision in the Hogan case and with the intent that it have the effect given to it in that opinion. If a general contractor or surety wishes to have the benefit of the protective provisions of the Public Works Act, he need only to insist that the bond be limited to the bare statutory requirements. City of Knoxville v. Burgess, 180 Tenn. 412, 175 S.W.2d 548 (1943). We may safely assume that the protective provisions of the Public Works Act are waived by the contractor and surety for a price and upon demand by the governmental entity involved. We find no evidence in this case that the parties intended that the clause in question should have a meaning any different from that ascribed to it in Hogan.

Therefore, we hold that this action is governed by the statute of limitations of six years contained in T.C.A. § 28-309 rather than by the special period of limitations of six months provided by T.C.A. § 12 — 422. The action is not barred; the decree of the Chancellor should be affirmed. Costs of this appeal are taxed against the appellant and surety.

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


text:
    KINGSPORT PRESS, INCORPORATED, Appellant, v. Brenda VAN HUSS et al., Appellees.
    Supreme Court of Tennessee.
    March 7, 1977.
    Richard M. Currie, Jr., Wilson, Worley, Gamble & Ward, Kingsport, for appellant.
    Rowland E. Verran, Johnson City, for appellees.
   OPINION

COOPER, Chief Justice.

This is an appeal by the employer from an adverse judgment rendered in the Chancery Court of Sullivan County, Tennessee, in a workmen’s compensation proceeding.

The appellee, Brenda Van Huss, filed a petition in behalf of herself and two minor children for benefits under the Workmen’s Compensation Act for the death of her husband, Richard Van Huss. At the time of his death, Mr. Van Huss was employed as a maintenance mechanic by Kingsport Press, Inc. The chancellor, after a full hearing, held that the employee’s death was compen-sable and that the petitioner was entitled to a decree for full death benefits. The employer contends, on appeal, that there is no material evidence that Mr. Van Huss’s death was due to an injury by accident which arose out of and in the course of his employment.

The deceased employee had been a maintenance mechanic-for more than ten years prior to his death. On January 2, 1975, Mr. Van Huss returned to work after having had a twelve day rest due to a combination of regular holidays and vacation days which he had taken. On reporting to work at 8:00 a. m., Mr. Van Huss informed his supervisor that he was having some chest pain and that the pain extended into his arm. The supervisor suggested that Mr. Van Huss seek medical treatment — a suggestion which Mr. Van Huss did not choose to take since previous complaints of such pain had been diagnosed as stomach trouble. The supervisor then assigned Mr. Van Huss to help a fellow worker, Willie Gilliam, who was finishing lathe work on a roller core. Mr. Van Huss helped Mr. Gilliam turn the roller core, which weighed some ninety-seven pounds, end-for-end in the lathe. He also sharpened a few lathe tools for Mr. Gilliam, prior to the 9:15 a. m. break.

After the work break, Mr. Van Huss went to the Plant Medical Department and reported an increase in chest and arm pain. The nurse on duty at the plant sent Mr. Van Huss by ambulance to Holston Valley Community Hospital, where he was admitted to the coronary care unit, with a preliminary diagnosis of “myocardial infarction.”

According to the medical history taken from Mr. Van Huss on admission to the hospital, he first noticed symptoms on January 1, 1975, “with a sharp pain in the chest and into his hands and he also noticed some labored respirations,” which lasted about ten minutes. He had no more difficulty until about 9:00 a. m. on January 2, 1975, “when he began having pain again in the chest, arms, neck, jaws, and hands. This pain . . . did not ease up. [Also] he had a profuse perspiration and was short of breath.”

Dr. W. P. Templeton, a cardiologist, examined Mr. Van Huss at about 6:00 p. m. and found all vital signs to be normal. At approximately 7:30 p. m., Mr. Van Huss went into cardiac arrest. Efforts to resuscitate him were unsuccessful and he was pronounced dead at 8:24 p. m. The cause of death, according to Dr. Templeton, was ventricular fibrillation which was the aftermath of an acute myocardial infarction.

Dr. Templeton testified that the myocardial infarction occurred the morning of January 2, 1975, about the time of Mr. Van Huss’s admission to the hospital. The onset of pain on January 1,1975, was described as “pilot angina,” not an infarction, but a warning sign of an impending infarction.

As noted by the chancellor in his opinion, the cause of Mr. Van Huss’s death was never in dispute, nor was it disputed that Mr. Van Huss had a myocardial infarction while at his job with Kingsport Press. The issue was whether there was any causal connection between the work being performed by Mr. Van Huss and the myocardial infarction, which proved to be fatal.

In Lawrence County Highway Department v. J. W. Hardiman, 531 S.W.2d 792 (Tenn.1975), it is pointed out that there is no iron-clad rule which calls for payment of benefits under the Workmen’s Compensation Law where an employee suffers a heart attack while at work and for the denial of benefits where the employee suffers a heart attack while on the way home from work. The key to the recovery or denial of benefits is whether the heart attack is precipitated by the physical activity and exertion of the employee’s work.

If so, an employee who dies in the course of his employment as a result of a heart attack, although suffering from a previous heart disease, is covered under the Workmen’s Compensation Act even if the result was produced by ordinary exertion and usual strain of the work. Lawrence County Highway Department v. Hardiman, supra; Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540 (1959). But where the heart attack is not brought on by the work which the employee was doing, or by some external happening in the course of the employment, the employee’s death is not covered by the Workmen’s Compensation Act. See Chapman v. Aetna Casualty and Surety Co., 221 Tenn. 376, 426 S.W.2d 760 (1968); Travelers Insurance Company v. Googe, 217 Tenn. 272, 397 S.W.2d 368, 371 (1965).

And, as summed up in R. E. Butts Co. v. Powell, 225 Tenn. 119, 463 S.W.2d 707 (1971),

“The issue upon which cases of this nature are determined is factual; that is, whether the employee experienced the disabling injury which may have accelerated an existing disease while at work on the job. If so, this Court has held in numerous cases that the injury is accidental and compensable under our Workmen’s Compensation statutes, even though the employee was not engaged in any spectacularly unusual strain or extraordinary exertion.”

The legislature in enacting the compensation act expressly entrusted the trial court with the power to find the facts and when such facts are supported by any material evidence, even if this court thinks the evidence points otherwise, the trial court must be affirmed. General Shale Prod. Corp. v. Casey, 202 Tenn. 219, 303 S.W.2d 736 (1957).

Much of the medical testimony in this case is directed to showing that Mr. Van Huss was a prime target for a myocardial infarction, even though there was no question but that Mr. Van Huss’s death was due to a myocardial infarction. This undoubtedly accounts for appellant’s justified description of Dr. Templeton’s testimony as “long, and sometimes confusing testimony dealfing] with the functioning of the heart, the mechanism by which infarctions occur, and the various personality, physiological and environmental factors which may predispose one to have a heart attack.”

. According to Dr. Templeton, a myocardial infarction does not commonly occur in a person of Mr. Van Huss’s age, thirty-four years, in the absence of one or more of three recognized predisposing causes of aging of coronary vessels — hypertension, diabetes and hyperlipemia. These conditions age the arteries prematurely and cause the arteries to become thickened, which reduces the nutrients going to the inner lining of the artery and often causes a denuded area, or ulcer. When this happens, a clot may form on the roughened surface of the arterial wall. If the clot breaks away from the wall, it can interfere with the supply to the myocardium and cause the portion which feeds off the obstructed artery to die. In short, if the clot breaks free a myocardial infarction may result.

Dr. Thompson was of the opinion that Mr. Van Huss had “one or two at least” of the predisposing causes of aging of coronary vessels.

“Well, I would certainly feel that if, if he, if he’s diabetic, and I’m highly suspicious that he was, or hyperlipemia — he certainly has a history of hypertension — that, well, were the factors. Those were one or two at least, or maybe even three of these factors were factors which, which caused the infarction at this age. Now, insofar as the work is concerned, I’m— again, it would depend on, on his reaction to work, * * * So again, as I say, it depends on what the effect the job has on the person individually; you see?”

Dr. Thompson also expressed the opinion that neither the work done by Mr. Van Huss as a maintenance mechanic nor the many hours of overtime worked had any bearing on the creation of the condition which led to the infarction. He did say, however, that once the condition had been created, exertion at the moment may contribute to cause the clot to break away and occlude the artery.

“Again, this, this, this is the question that has been raised — it [the clot] breaks away. Well, what caused it to break away? Well, just flapping in the breeze will do it. Now, exertion may contribute to it at the moment, but the process had been started. It is sort of like dropping a marble in a funnel. You could have— You have a funnel that is funneling water through it, and suddenly you drop a marble into it; boom — it just tampons (sic) off, tampons (sic) it off. Well, this little clot, if it breaks away — boom. It, because these arteries are narrowing down all the time, and bang, and it completely occludes this, and this is an infarction.”

The chancellor concluded from “the total medical testimony” that there was “a causal connection between the final death of the deceased and his activities on the job.” The specific activity referred to by the chancellor was the lifting and turning of the roller core on the lathe. This activity required two men to work in unison, or the use of a hoist, and is an activity calculated to cause “exertion” on the part of those doing the lifting and turning. We can not say that his finding is unsupported by material evidence.

Decree affirmed. Costs are adjudged against appellant, Kingsport Press, Incorporated.

FONES, HENRY, BROCK and HARBI-SON, JJ., concur.


text:
    Jayne Ann WOODS, Commissioner, Department of Revenue, Appellant, v. John William PASCHALL, Executor, Appellee.
    Supreme Court of Tennessee.
    March 14, 1977.

      Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, for appellant; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
    William B. Black, Tiptonville, for appel-lee.
   OPINION

BROCK, Justice.

This is an action by an executor to recover a portion, paid under protest, of inheritance taxes assessed. In 1955, William Thomas Paschall, reserving a life estate in an undivided one-sixth interest in a certain tract of land, by deed transferred the remainder together with the other five-sixths, to his son, John William Paschall. It was stipulated in the deed that the son was to pay to each of his five sisters the sum of $8,000.00. John William Paschall distributed $40,000.00 among his sisters before the death of his father and is now the owner of the land.

By virtue of the life estate retained by the decedent, the transaction was made subject to the state inheritance tax. T.C.A. § 30-1602(d). The question presented is whether the amount of the tax should be based upon the full value of the property transferred or upon that value less the $40,-000.00 paid by the son to his sisters during the lifetime of the grantor.

The Chancellor found that John William Paschall did pay the $40,000.00 to his sisters upon the direction of his father as consideration for the transfer of the property and, since no bill of exceptions is in the record, it must be conclusively presumed that the evidence supported this finding.

However, the ruling that the sum was a valuable consideration within the meaning of the statute and that, as such, it is not includable in the taxable estate is a legal conclusion subject to review. Under T.C.A. § 30-1602(f), a transfer of property otherwise subject to the inheritance tax is exempt from tax to the extent that it represents “the equivalent in money value of the money value of such present consideration received bv the transferor.” (Underscoring added.) The Commissioner insists that the statute, by virtue of the four underscored words, requires that the transfer- or perform the ritual of laying his hands upon such consideration in order for the exemption to apply.

We do not so construe the legislative intent. Here, the transferor did receive the money in the sense that he controlled the disposition of it during his lifetime. The fact that he directed payment of the money to his daughters rather than appropriate it to his own use does not affect its character as consideration for the transfer. Restatement of Contracts, § 75(2). Nor does the statute prevent his making an inter vivos gift of the money given as consideration. This clearly was the effect of the transaction.

Had William Thomas Paschall accomplished the division of his property by a like testamentary disposition, the money given to the plaintiff’s sisters obviously would be taxable. T.C.A. § 30-1601. Conversely, had he not reserved a life estate in himself, the whole property would have escaped the inheritance tax. The reason the $40,000.00 is not taxable in the present case is that it was given during the transferor’s life, free of any device preventing it from taking effect in possession or enjoyment during his lifetime, and too long before his death to be taxable as a gift in contemplation of death. T.C.A. § 30-1602.

In a number of cases, this Court has construed this tax, not as a levy against the estate or the right to transfer property at death, but as a privilege tax upon the right of the beneficiary to receive property from the decedent. Henson v. Monday, 143 Tenn. 418, 224 S.W. 1043 (1920); American National Bank & Trust Co. of Chattanooga v. MacFarland, 209 Tenn. 263, 352 S.W.2d 441 (1961). We also have held that the inheritance tax is to be strictly construed against the state. English’s Estate v. Crenshaw, 120 Tenn. 531, 110 S.W. 210 (1908). The Chancellor’s Order, measuring the tax only by the amount which the son did receive upon the death of his father, is in keeping with these principles. It is, therefore, affirmed. Costs incurred upon this appeal are taxed to the appellee.

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

      . Because the issue has .not been raised, we do not decide whether the amount of the exclusion should be more or less than the consideration of $40,000.00 paid. We note, however, that the language of T.C.A. § 30-1602(f) may mean that the amount of the exclusion in such cases should be such proportion of the total value of the transferred property on the date of death as the amount of the consideration paid bears to the value of such property on the date of its transfer; e. g., if the consideration paid was 75% of the value of the property on the date of its transfer, the amount of the exclusion would be 75% of the value of the property on the date of death of the transferor.


author: DROWOTA, Judge.

text:
    HORNER-RAUSCH OPTICAL COMPANY et al., Plaintiffs-Appellants, v. R. A. ASHLEY, Jr., et al., Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Oct. 29, 1976.
    Certiorari Denied by Supreme Court March 7, 1977.
    Eugene Jackson and Robert L. Jackson, Nashville, for plaintiffs-appellants.
    R. C. Cougill, Atlanta, Ga., for amicus curiae, The Federal Trade Commission.
    William C. Koch, Jr., Nashville, Tenn., for defendants-appellants.
   OPINION

DROWOTA, Judge.

This is an appeal from a trial court judgment upholding the constitutionality of Tennessee Code Annotated § 63-1404(g), (h), and (j) and several rules promulgated thereunder, all of which have the effect of prohibiting dispensing opticians from advertising in Tennessee. Plaintiff opticians allege that these provisions are invalid because they violate fourteenth amendment due process and equal protection, first amendment freedom of speech, and corresponding guarantees of the Tennessee Constitution. They further urge that these provisions constitute an invalid exercise of the police power under the Tennessee Constitution and contribute to a restraint of trade. Since we hold the challenged provisions violative of the first amendment to the United States Constitution, as applied to the states by the fourteenth amendment, we do not reach any of plaintiffs’ arguments as to their invalidity on other grounds.

Plaintiffs brought this declaratory judgment action against the Attorney General of Tennessee, the Tennessee Board of Dispensing Opticians, and the Licensing Board for the Healing Arts in the First Circuit Court for Davidson County to determine the constitutionality of T.C.A. § 63-1404(g), (h), and (j), which enumerates the following acts as grounds for the suspension or revocation of certification of dispensing opticians:

(g) Advertising] by the use of handbills, circulars, posters, window displays, neon signs, radio, television or newspaper.
(h) Advertising any free professional services or prices for professional services
(j) Advertising to guarantee any professional services; .

Plaintiffs also questioned the validity of Rules 12.01, 12.02, and 12.03, which were promulgated by the Tennessee Board of Dispensing Opticians under the authority of T.C.A. § 63-1401, and which elucidate in more specific terms the statute’s general ban on advertising by dispensing opticians. The court below carefully examined and rejected each of plaintiffs’ arguments and upheld the validity of the above quoted statutory provisions and of Rule 12.02 in a thorough memorandum opinion. The court also held that Rule 12.01 is invalid as beyond the Board’s authority under the statute, and that Rule 12.03 is invalid to the extent it attempts to prohibit Tennessee dispensing opticians from advertising, in other states, the availability of their services in other states. Each party now appeals that portion of the decision adverse to his position.

Plaintiffs in this case are Horner-Rausch Optical Co., a Tennessee corporation, George Bandy, its president and a licensed Tennessee dispensing optician, and Walter Rich, vice-president of Horner-Rausch. Plaintiffs operate as dispensing opticians and have several stores in Middle Tennessee for this purpose. At trial, plaintiff Bandy detailed the services performed by a dispensing optician, who is required to be licensed and subject to regulation under Tennessee law. The customer comes to the dispensing optician with a prescription for lenses from an ophthalmologist, who is an M.D., or from a optometrist, who is qualified to examine eyes for refractive error. The dispensing optician takes the prescription, helps the customer select a frame, advises him as to fit and measures the distance between the customer’s pupils. He then sends all this information to a laboratory optician, a technician not required to be licensed, who grinds the lenses to the proper strength, fits them into the frame, and returns them to the dispensing optician. The dispensing optician then checks the glasses for fit and to ensure that the lenses have been ground to the specifications of the prescribing doctor, and his job is completed. Other testimony concerned the correlation of advertising and the price of glasses. On this subject, plaintiffs’ expert witnesses expressed the opinion that, due mainly to an increased volume of business and competition, advertising by dispensing opticians results in substantially lower prices than those that prevail when such advertising is forbidden. Defendants presented no evidence.

At one time, the United States Supreme Court regarded advertising, or “commercial speech,” as a form of communication unprotected by the first amendment. Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). More recently, however, the Court has shown a trend away from this approach, choosing instead to distinguish purely commercial speech, which the Court professed to leave unprotected, from commercial speech that contained some element of public interest, which it held protected. Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975); see Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973). In its latest pronouncement on the subject, the Court has continued this trend by abandoning its initial approach and holding that even purely commercial speech is not outside the protection of the first amendment. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976).

Virginia Citizens held unconstitutional as violative of the first amendment a Virginia statute that prohibited pharmacists from advertising the price of prescription drugs in any manner. In discussing the practice of pharmacy (stipulated to be a “profession” by the parties) in Virginia, the Court noted that only pharmacists licensed by the state could dispense prescription drugs, that 95% of prescriptions were prepared by use of dosage forms supplied by the manufacturer, and that the profession was subject to broad regulation, of which the advertising ban was only a part. After holding that commercial speech is not outside first amendment protection because the public interest is served by well informed commercial decisions, the Court carefully analyzed the effect of this holding on the case before it.

The Court first conceded that there is an aspect of professionalism in pharmacy, since it requires skill and expertise independent of the physician’s, and that the state has a strong interest in maintaining this professionalism. After listing the state’s arguments in favor of the ban on advertising, most of which basically asserted that advertising would result in a lower quality of pharmaceutical service, the Court found them largely offset by the imposition of high professional standards through the other regulations in the statutory scheme. Citing Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955), the Court stated that while the state’s justifications for the ban had there been held sufficient to satisfy due process and equal protection, the first amendment presented a different question. This question was whether the state should be permitted to take the “highly paternalistic” approach of “protecting” its citizens by keeping them in ignorance on the theory that, were they informed of prices, they would rush to the least expensive pharmacy regardless of its quality. Stating that the first amendment answers this question in the negative, the Court said the state is required instead to assume that advertising information is not harmful in itself and that, since people will act in their own best interests if informed, it is better to inform them. Finally, the Court stressed that its holding that the ban on price advertising by pharmacists violated the first amendment does not forbid all restrictions on the time, place, and manner of advertising, or the prohibition of misleading or illegal advertising; it also noted that the electronic media were not involved in the case. Chief Justice Burger’s concurring opinion emphasized the Court’s further point that a true “profession,” such as medicine or law, would present a different question.

We think that Virginia Citizens is controlling in the case at bar. For purposes of the Supreme Court’s reasoning in that case, there is no meaningful distinction between pharmacists and dispensing opticians. There is an aspect of professionalism and skill in both, but there is also a large element of mere retail selling of a standardized product. As was the case with the state’s interest in pharmacy in Virginia Citizens, the state’s interest in the quality of service and professionalism of dispensing opticians here seems protected by other provisions of the regulatory scheme that more directly affect those qualities than does the ban on advertising. See T.C.A. §§ 63 — 1401 —63-1410. It is clear that, by prohibiting advertising by dispensing opticians, Tennessee is seeking to protect its citizens in a manner that has now been declared viola-tive of the first amendment.

Nor do the other differences between Virginia Citizens and this case persuade us to reach a different result here. That the plaintiffs here are dispensing opticians who wish to advertise, while in Virginia Citizens they were members of the public who wished the benefit of advertising information, is immaterial, for the Court grounded its finding of a first amendment violation in a general conception of public good that involved both the advertiser’s right to speak and the citizen’s right to know. While the state here argues that the cost of advertising may increase rather than lower prices, it has presented no evidence of this, and all the evidence in the record is to the contrary. The state further argues that advertising may result in needless buying of glasses, and that this over-consumption problem was specifically ruled out of consideration by the Court in Virginia. Citizens because of the nature of prescription drugs. To this we must answer that the mere possibility of over-consumption, which exists whenever there is advertising and which has not been shown to be an especially real or potentially harmful problem by any evidence in this case, is outweighed by the substantial benefit that the evidence shows would accrue from advertising in the form of lower prices and wider availability of services to low income groups. Finally, we do not believe that dispensing opticians, who are largely dispensers of standardized products, come within that category of professions said to present a different problem from that in Virginia Citizens by Chief Justice Burger’s concurrence and the Court’s footnote 25, wherein medicine and law were named as examples of such professions.

In sum, we believe the ban on advertising in the instant case is invalidated by the Court’s negative answer to the question of:

. whether a State may completely suppress the dissemination of eonced-edly truthful information about entirely lawful activity, fearful of that information’s effect upon its disseminators and its recipients. Virginia Citizens, supra, 96 S.Ct. at 1831.

Although the provision invalidated in Virginia Citizens only prohibited the advertising of prices, we think that the language quoted clearly encompasses within first amendment protection the other useful kinds of information that may be the subject of truthful, legal advertising and that are forbidden by the regulatory provisions before us. In thus applying the Supreme Court’s reasoning to the instant case, we stress (as did the Court) that we do not hereby find all restrictions on advertising by dispensing opticians (such as reasonable regulation of its time, place, or manner) violative of the first amendment, but only its complete prohibition. Accordingly, we hold that T.C.A. § 63-1404(g), (h), and (j), and Rules 12.01, 12.02, and 12.03, promulgated thereunder by the Board of Dispensing Opticians, violate the first amendment to the United States Constitution and are therefore invalid. The judgment of the trial court is reversed and a decree will be entered in this Court in accordance with this opinion.

Reversed and rendered.

SHRIVER, P. J., and TODD, J., concur.

APPENDIX

RULES OF TENNESSEE STATE BOARD OF DISPENSING OPTICIANS

CHAPTER 0480-12

ADVERTISING

TABLE OF CONTENTS

0480-12-.01 Prohibited as for Other Health Professions

0480 — 12—.02 Window Displays

0480-12-.03 Outside the State

0480-12 — .01 PROHIBITED AS FOR OTHER HEALTH PROFESSIONS. Dispensing opticians shall adhere to the statutory prohibition against advertising to the same extent, and with the same spirit, as other health-related professions. Advertising is considered to be any visual or audio attraction designed to entice the public to do business with a particular firm as opposed to normal information services which all professional groups provide for the public. For the protection of the public, the definition of advertising will be liberally construed against the alleged advertiser. The following will not be considered advertising when done in strict compliance with these regulations:

(a) The listing of the name of the firm or dispensing optician in the “yellow pages” of the telephone directory with the exception that bold print shall be used only for the heading of the particular specialty which shall be limited to the following terms: “optical goods”; “opticians”; “contact lenses”; “artificial eyes”; “binoculars”;
(b) A news item publication announcing a new store opening provided that said news item announcement shall be limited to a picture (two inches by one inch) of the owner or store with the name and address in standard two millimeter print. The wording “new opening” shall be included in the news item which shall not list addresses of the existing stores.
(c) Signs announcing the name of the firm or dispensing optician so long as they are limited to store windows, store doors, or overhead store fronts and, further, so long as the letters are not larger than four inches by four inches (including a shadow background) and are unlighted. The name of a firm or dispensing optician may be listed in a permanent sign “directory” which lists the tenants of a building or shopping center so long as the dimensions of the letters do not exceed three inches by three inches or do not exceed the dimensions of the letters in the directory announcing the presence of other allied health professionals who are prohibited from advertising, whichever size is less.
(d)Business cards will be allowed so long as they are distributed to patients on the premises of the particular business they represent.
Authority: T.C.A. Section 63 — 1401. Administration History. Original Rule was certified June 7, 1974.

0480-12 — .02 WINDOW DISPLAYS. Window displays, prohibited by T.C.A. Section 63-1404, are defined to be the display or presentation of optical products or signs containing pictures or prices of optical products which directly face the window or open front of a store so as to be readily percepta-ble to prospective customers outside the store or firm and which may reasonably be considered an inducement to trade.

Authority: T.C.A. Section 63 — 1401. Administrative History. Original Rule was certified June 7, 1974.

0480-12 — .03 OUTSIDE THE STATE. Advertising by Tennessee Dispensing Opticians out of the state of Tennessee is strictly prohibited.

Authority: T.C.A. Section 63 — 1401. Administration History. Original Rule was certified June 7, 1974.

      . See appendix for Rules 12.01-12.03.


author: POPE, Justice. SAM D. JOHNSON, Justice POPE, Justice.

text:
    Dr. C. F. SPARGER, Petitioner, v. WORLEY HOSPITAL, INC., et al., Respondents.
    No. B-5721.
    Supreme Court of Texas.
    Jan. 12, 1977.
    On Rehearing March 2, 1977.
    Stokes, Carnahan & Fields, Richard E. Stokes, Jr., Amarillo, for petitioner.
    Anderson, Henley, Shields, Bradford, Pritchard & Miller, L. W. Anderson, Dallas, Buzzard & Comer, Ross N. Buzzard, J. B. McGuire, Jr., Pampa, for respondents.
   POPE, Justice.

This is a medical malpractice case. The plaintiff Sylvia Caldwell sued Worley Hospital, Inc. and Dr. C. F. Sparger for injuries resulting from the failure to remove a sponge from Mrs. Caldwell’s abdominal cavity after an operation. The trial court rendered judgment on a jury verdict for plaintiff against Worley Hospital only. The court of civil appeals reversed that judgment and held that Dr. Sparger under the captain of the ship doctrine was liable as a matter of law and that the defendants were jointly and severally liable. 529 S.W.2d 639. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

The jury by its verdict found that someone in the group comprising Dr. Sparger, Dr. Bellamy, and the surgical nurses was negligent with respect to the sponge that was found in Mrs. Caldwell’s abdomen. The jury found that this negligence was the proximate cause of Mrs. Caldwell’s injury. The jury refused to find that Dr. Sparger failed to exercise ordinary care by looking for the sponge in question before closing the incision in plaintiff’s abdomen. The jury did find that Wanda Ensey, Marjie Holland, Geneva Finney, (nurses) or any of them, failed to make a correct sponge count and this negligence was the proximate cause of Mrs. Caldwell’s injury. The jury refused to find that in watching after the sponges the three nurses were the borrowed servants of Dr. Sparger.

The plaintiff did not sue the nurses, and Dr. Bellamy has gone out of the case by reason of an instructed verdict in his favor. The jury answers exonerated Dr. Sparger from every act of negligence for which he was charged and found instead that the nurses were negligent. Dr. Sparger is therefore before us with an application for writ of error in which he insists that the court of civil appeals should not have held him vicariously liable as a matter of law for the negligence of the nurses under the so-called captain of the ship doctrine. Worley Hospital’s application contends that Dr. Sparger must bear the sole liability since the captain of the ship doctrine made the nurses his exclusive employees. The issue presented is whether Dr. Sparger is liable as captain of the ship notwithstanding the finding that the nurses were not his borrowed servants.

If this was anything but a malpractice case, the question before us would be resolved by the jury’s refusal to find that Dr. Sparger had borrowed the Worley Hospital’s nurses so as to make them his employees. Mrs. Caldwell sought to hold Dr. Spar-ger vicariously liable 'for the improper sponge count by submitting the following special issue concerning the employment relationship between the surgeon and the assisting nurses:

SPECIAL ISSUE NUMBER FOUR:
Do you find from a preponderance of the evidence that in watching after the lap packs Wanda Ensey, Marjie Holland and Geneva Finney were borrowed employees of Dr. Sparger?
A “Borrowed Employee”, as used in this charge, means one, who, while in the general employment of the hospital, is subject to the right of the physician to direct or control the details of the particular work inquired about, and is not merely cooperating with suggestions of said physician.
An employee in the general employment of one employer may be temporarily loaned to another so as to become a borrowed employed [sic] of the second employer. Under these circumstances, a person may serve two masters simultaneously and at times only momentarily.
Answer “Yes” or “No”
ANSWER: No

Texas has long recognized that a general employee of one employer may become the borrowed servant of another. J. A. Robinson Sons, Inc. v. Wigart, 431 S.W.2d 327 (Tex.1968); Producers Chemical Company v. McKay, 366 S.W.2d 220 (Tex.1963). Restatement (Second) of Agency § 227 (1958). Under the borrowed servant doctrine the essential inquiry would be whether or not the surgeon had the right to control the assisting nurses in the details “of the specific act raising the issue of liability.” J. A. Robinson Sons, Inc. v. Wigart, supra at 330. The right of control is ordinarily a question of fact. See J. A. Robinson Sons, Inc. v. Wigart, supra; Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex.1964).

The principle of borrowed servant cuts across the entire law of principal and agent and employer and employee, and is therefore also applicable to the legal relationships between a physician or surgeon and a nurse. Physicians and surgeons are and should be subject to the usual rules applicable to borrowed servants. In some jurisdictions, however, there has been imposed upon the medical profession, a special and more onerous form of vicarious liability. Our question is whether they should have an extra liability imposed upon them.

The phrase “captain of the ship”, was first employed in the medical malpractice context in the case of McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1959). It was used in that case as an apt analogy but in some jurisdictions the phrase has grown into a separate and independent concept of agency which specially applies to medical malpractice cases. Rockwell v. Stone, 404 Pa. 561, 173 A.2d 48 (1961); Yorston v. Pennell, 397 Pa. 28, 153 A.2d 255 (1959); Mazer v. Lipschutz, 327 F.2d 42 (3d Cir. 1963); Young, Separation of Responsibility in the Operating Room: The Borrowed Servant, the Captain of the Ship and the Scope of Surgeons’ Vicarious Liability, 49 Notre Dame Lawyer 933 (1974).

In naval parlance, the captain of a ship is in total command and is charged with full responsibility for the care and efficiency of the ship and the welfare of all hands. His authority over his own ship and crew is supreme. The captain does not, however, assume personal responsibility for the acts of misconduct or for the criminal deeds committed by the individual men aboard his ship. The court in McConnell did not in fact, impose liability upon the surgeon under its handy phrase which characterized him as the captain of the ship. The court instead ruled that “[i]t is for the jury to determine whether the relationship between defendant and the interns, at the time the child’s eyes were injured, was that of master and servant. . . ’ The court remanded the cause for the factual determination. Other medical malpractice cases have treated the disputed borrowed servant issue in the same manner, as one of fact.

Similes sometimes help to explain a factual situation, but in legal writing, phrases have a way of being canonized and of growing until they can stand and walk independently of the usual general rules. Mr. Justice Frankfurter once wrote concerning such phrase-making in judicial opinions: “The phrase . . . is an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undis-criminatingly used to express different and sometimes contradictory ideas.” Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68, 63 S.Ct. 444, 452, 87 L.Ed. 610 (1942). The result in the use of captain of the ship is that a surgeon or physician may be held liable, not as others upon the basis of the general rule of borrowed servant, but as captain of the ship.

The jurisdiction which first employed the metaphor has now retreated from the concept so that occurrences in the operating room might be brought back to the confines of the more general borrowed servant concept. The court in Thomas v. Hutchinson, 442 Pa. 118, 275 A.2d 23 (1971), said that the captain of the ship example was intended as an adaptation of the familiar borrowed servant principle that applies generally in the law of agency. See Note, Malpractice-Vicarious Liability of an Operating Surgeon, 10 Duquesne L.Rev. 117 (1971). Hence, where there are inconsistent factual inferences concerning the servant’s employer which can be reasonably drawn from evidence, the issue should be resolved factually as any other borrowed servant issue. Buzan v. Mercy Hospital, 203 So.2d 11 (D.Ct.App.Fla.1967); Danks v. Maher, 177 So.2d 412 (La.Ct.App.1965); Campbell v. Thornton, 333 N.E.2d 442 (Mass.1975); Synnott v. Midway Hospital, 287 Minn. 270, 178 N.W.2d 211 (1970); Nichter v. Edmiston, 81 Nev. 606, 407 P.2d 721 (1965); Tonsic v. Wagner, 458 Pa. 246, 329 A.2d 497 (1974); Annot., 12 A.L.R.3d 1017, 1021 (1967).

This court has not previously addressed the question of the adoption of the captain of the ship doctrine as a basis for a surgeon’s liability in addition to his responsibility under the borrowed servant doctrine. In Webb v. Jorns, 488 S.W.2d 407 (Tex.1973), the application of the captain of the ship doctrine was not an issue since the physicians conceded that they were subject to liability for actions of any of the persons under their supervision in the operating room. 488 S.W.2d at 411. In McKinney v. Tromly, 386 S.W.2d 564 (Tex.Civ.App.1965, writ ref’d n. r. e.), the court approved the doctrine. The judgment in that case, however, was not grounded upon the mere presence of the surgeon in the operating room but, as the opinion stated, upon the admitted fact that the doctor had absolute right of control of all personnel in the operating room during the operation. Later, Harle v. Krchnak, 422 S.W.2d 810 (Tex.Civ.App.1968, writ ref’d n. r. e.), followed McKinney without discussion.

We now disapprove McKinney and Harle insofar as they suggest that a surgeon’s mere presence in the operating room makes him liable as a matter of law for the'negligence of other persons. We disapprove the captain of the ship doctrine and hold that it is a false special rule of agency. Operating surgeons and hospitals are subject to the principles of agency law which apply to others. Tonsic v. Wagner, supra; Bilonoha v. Zubritzky, 233 Pa.Super. 136, 336 A.3d 351 (1975). The state of the facts may in some cases be such as to make one a surgeon’s employee or borrowed servant as a matter of law, but that is not the factual situation before us in this case.

The question remains whether the facts show that, as a matter of law, the nurses were the borrowed servants of Dr. Sparger. Three nurses had assignments in the operating room during the operation. They were hired by and were the general employees of the hospital and were assigned by the hospital for the operation. Dr. Sparger did not participate in their selection. Marjie Holland was the “circulating nurse.” As such, she served in that part of the operating room that was designated as the non-sterile field. Wanda Ensey was the “scrub nurse” who was required to remain in the sterile field so that she could assist the surgeon throughout the operation. Geneva Finney was positioned at the foot of the operating table, but she had no responsibilities concerning the sponges.

The duties of the circulating and scrub nurses were detailed in the hospital’s Policy & Procedure Manual. There were general instructions which applied to both nurses. There were specific duties assigned to the circulating nurse and specific duties assigned to the scrub nurse. The procedures for the sponge counts were intended for use regardless of the surgeon who was performing an operation in the Worley Hospital.

The mistake in leaving the sponge in plaintiff’s abdomen was explained in this way. The circulating nurse had prepared the operating room by laying out the necessary supplies and equipment. She remained in the non-sterile area of the operating room during the operation. The scrub nurse stood within the sterile field and assisted the surgeon by handing him instruments, clamps, and sponges. Before surgery began, the scrub nurse in front of the circulating nurse counted the sponges which had been laid out. The circulating nurse recorded that count. When Dr. Spar-ger was ready to close the inner layer of tissue, the scrub nurse counted the unused sponges, and the circulating nurse counted the used ones. The total was reported by the scrub nurse as tallying with the record.

Wanda Ensey, the scrub nurse, testified that Dr. Sparger did not direct her and Mrs. Holland to make the sponge count. Mrs. Ensey stated that the two nurses knew how to perform the sponge count, because it was part of the manual regulations which they followed. Reasonable minds might differ as to the facts which presented the borrowed servant issue.

We conclude, therefore, as did the trial court, that plaintiff should have judgment against Worley Hospital since the jury made a finding that it was hospital’s employees who were negligent. Since the captain of the ship idea is a false issue and the jury found as a fact that the nurses were not the borrowed servants of Dr. Sparger, plaintiff was not entitled to a judgment against Dr. Sparger.

The judgment of the court of civil appeals which rendered judgment against both Dr. Sparger and Worley Hospital is reversed and the judgment of the trial court that plaintiff recover against Worley Hospital is affirmed.

SAM D. JOHNSON, J., dissents.

YARBROUGH, J., not sitting. He was not a member of the Court when the cause was orally argued before this Court.

SAM D. JOHNSON, Justice

(dissenting).

This dissent is respectfully submitted.

As early as Moore v. Ivey, 264 S.W. 283 (Tex.Civ.App.—Galveston 1924), rev’d on basis of jury misconduct, 277 S.W. 106 (Tex.1925), Texas courts have indicated that a surgeon was negligent as a matter of law if a sponge or other foreign object was left in the patient. See McKinney v. Tromly, 386 S.W.2d 564 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.); Thompson v. Barnard, 142 S.W.2d 238 (Tex.Civ.App.—Waco 1940), aff’d, 138 Tex. 277, 158 S.W.2d 486 (1942).

Language in McKinney v. Tromly, supra, reveals that the court’s decision was not based only on a finding that the facts established as a matter of law that the surgeon had the right to control the nurse. The court quoted with approval the following language from Aderhold v. Bishop, 94 Okl. 203, 221 P. 752 (1923):

“ ‘We can conceive of no instance in which the application of the doctrine of respondeat superior could exercise a more salutary influence than in cases of damage arising out of surgical operations. The patient is helpless under the influence of an anaesthetic, and absolutely at the mercy of the surgeons performing the operation, and they are charged with the duty to see that no preventable injury results to their patient. * * * If the operating surgeons were not made liable for the negligent performance of the duties of those working under him, the law in a large measure would fail in affording a means of redress for preventable injuries sustained from surgical operations.’” 386 S.W.2d 564 at 565-66. [Emphasis added.]

This language implies that a surgeon may be liable for the negligence occurring in the operating room. This responsibility appears to be a conceded fact in many if not most instances. Webb v. Jorns, 488 S.W.2d 407, 411 (Tex.1972). The special relationship that exists between the surgeon and the patient in the operating room justifies the imposition of such liability.

This special relationship arises from the conscious selection by the patient of a particular surgeon, the reliance by the patient on the skill and judgment of the surgeon, the inability of the patient to control any of the actions occurring during surgery, the expectation that the surgeon selected will control the operation, the patient’s expectation that the surgeon will require the operating room personnel to follow proper medical procedures, the expectation that the surgeon will protect the patient from the negligence of the operating room personnel, and the responsibility accepted by the surgeon to require the application of proper medical procedures and to exclude unqualified personnel from the operating room. This special relationship is not the only justification for the imposition of liability on the surgeon for negligence in the operating room. The knowledge of such potential liability will prompt the surgeon to initiate every possible safeguard to prevent negligence in the operating room.

Whether the doctrine is known as “captain of the ship” or by some other label, this writer would hold that a surgeon may be liable for any negligence occurring in the operating theater. Liability may be imposed on the theory that the surgeon had the right to control the negligent individual or, if there was no right to control, on the theory that the surgeon was negligent in failing to insist on the right to control.

Rather than retain the historic position of this state, that of the courts of civil appeals in Harle v. Krchnak, 422 S.W.2d 810 (Tex.Civ.App.—Houston [1st Dist.] 1967, writ ref’d n. r. e.), and McKinney v. Tromly, supra, the majority asserts that the surgeon may be held liable as a matter of law only if the facts necessarily lead to the conclusion that the operating surgeon had the right to control the nurses during the course of the operation.

Even applying the standard adopted by the majority, an examination of the evidence in the instant case leads inevitably to the conclusion that the operating surgeon, Dr. Sparger, as a matter of law had the right to control the actions of the nurses with respect to the sponge counts during the course of the operation. Indeed, in the opinion of this writer, such evidence is overwhelming.

With respect to his relationship with the nurses, Dr. Sparger testified as follows:

“Q And during the course of the operation, or the course of treatment or operation, the Surgeon is in charge of the patient?
“A In charge of all the medical aspects of the patient.
“Q And you issued orders to the Nurses in connection with the care and treatment of the patient, and they are supposed to follow them?
“A In regard to the medical aspects.
“Q Now, in connection with an operation, a Surgeon issues orders to the Nurses during the operation, does he not?
“A Correct.
“Q And they are supposed to follow them?
“A Yes, sir.
“Q And you are supposed to tell the Nurses what to do, and what not to do?
“A Correct, in regard to the medical aspects.
“Q You certainly wouldn’t want a janitor, or a typist, or somebody, or a clerk up there, helping you in the Operating Room, would you?
“A No, sir.
“Q You want a Registered Nurse, don’t you?
“A As far as the circulation, yes.
“Q And you want somebody that has had experience, and has had training?
“A That is true, and it is a requirement.
“Q And do you know the Nurses, or did you know the Nurses before you went to Worley Hospital that were assisting you in this operation?
“A Yes, sir.
“Q That is Mrs. Ensey, and Mrs. Holland?
“A Yes.
“Q And you don’t question their ability in any way, or their capabilities, do you?
“A No.
“Q Now, you have also told us that you did not ask either Mrs. Ensey or Mrs. Holland for a sponge count, but that they voluntarily gave you one, is that correct?
“A That’s right, at the time of the procedure.
“Q All right. And — but if they didn’t voluntarily give you one, you would have certainly asked for one, wouldn’t you?
“A Correct.
“Q All right. Now isn’t it true that your judgment controls the surgical process from the beginning to end during an operation?
“A The medical aspects of the operation.
“Q If there is any conflict or disagreement in judgment between you and somebody else, including the Nurses, or even Dr. Bellamy, who is assisting you, your judgment would control, would it not?
“A If there is any conflict, that is true, if there is any conflict—
“Q Yes. That’s right. In other words, you are in charge of the operation, and everybody is supposed to do what you tell them?
“A That’s right, medically speaking.”
[Emphasis added.]

Dr. Sparger also testified that he requested a sponge count after closing the peritoneum but prior to closing the skin. With respect to the sponge counts, Mrs. Ensey, the operating room technician, testified as follows:

“Q Now, do you know whether the hospital Regulations required another count after [the time that Dr. Spar-ger had begun to close the peritoneum]?
“A No, I don’t think they did. I am sure they didn’t, . . .”

Mrs. Ensey also testified regarding the relationship between the nurses and Dr. Sparger:

“Q Are you instructed to follow the doctors’ orders at all times?
“A Yes.
“Q Do you follow them?
“A Yes. I try my best.
“Q And you are supposed to follow all the orders he gives you?
“A Yes.
“Q And he tells you what to do and what not to do?
“A Yes.”

Mrs. Holland, the operating room supervisor and a registered nurse, testified as follows:

“Q All right. Then when we got down — when we got down to this second count that you made at the peritoneum, that you have told us about, one, you counted when they came out of the bucket, and you counted them on the floor with Mrs. Finney, neither one of those doctors directed you to do that?
“A No, sir. It is accepted that you do that.
“Q Neither one of those doctors ordered you to do that?
“A You just know they expect it of you.
“Q Well, I am asking you, did either one of those doctors order you to do that?
“A No.
“Q All right. In fact, those Orders and Regulations that control you in that work come from your Worley Hospital Regulations, don’t they?
“A Well, the doctors just expect you to have a sponge count for them. It is just the way they expect it. .
“Q Now, in connection with the Operating Room, is the Surgeon, who is performing the operation, is he supposed to give you orders as to what to do, and know what not to do?
“A Yes, sir.
“Q And you are supposed to follow those orders?
“A Yes, sir.
“A Without question?
“A Yes, sir.” [Emphasis added.]

It is undisputed that the Hospital had established standard procedures to be followed by the nurses in the operating room. However, it is obvious that Dr. Sparger had the right to alter the procedures followed by these nurses in this case, and did in fact alter the procedures by requesting a second sponge count.

From the testimony of both the surgeon and the nurses, it is inconceivable that the nurses would have refused to obey an order issued during the course of the operation by the operating surgeon, Dr. Sparger, on the grounds that it conflicted with procedures set forth by the Hospital.

The facts therefore establish as a matter of law that, as to the nurses, the operating surgeon, Dr. Sparger, not only had the right to control but also exercised such control during the course of the operation. The majority asserts: “The state of the facts may in some cases be such as to make one a surgeon’s employee or borrowed servant as a matter of law, but that is not the factual situation before us in this case.” With all due respect, such is precisely the situation before us in this case, and the quoted testimony makes that fact crystal clear. Under the majority’s own standard, during the course of the operation the nurses were the operating surgeon’s borrowed servants as a matter of law and the operating surgeon is therefore liable for their negligence.

ON MOTION FOR REHEARING

POPE, Justice.

The motion for rehearing of Worley Hospital, Inc. is granted for the purpose of remanding this cause to the court of civil appeals. The cause is remanded so that court may rule on the question whether the jury’s refusal to find that the nurses were borrowed employees of Dr. Sparger was against the great and overwhelming weight of the evidence, a point over which this court has no jurisdiction. See Stanfield v. O’Boyle, 462 S.W.2d 270 (Tex.1971).

The judgment of the court of civil appeals is reversed and the cause is remanded to that court for further consideration of the state of the evidence.

YARBROUGH, J., not sitting.

      . “OPERATING ROOM NURSING DUTIES
      “Each nurse is responsible for the room to which she is assigned in every detail. This includes maintenance of asepsis, prompt, and exact preparation for all her cases, accuracy in recording, and readiness of all special supplies needed and requested for each case.
      “The nurse is responsible for all counts. This includes sponges, needles (both from the rack and traumatic sutures), penrose drains, peanut sponges, umbilical tapes, screws, and any other similar articles which may be brought into the operative field. All counts are taken before the case begins, and are recorded in writing on the operative record. All these must be accounted for before the closure of the operative incision. NO OTHER NEED IS MORE IMPORTANT! If the counts are correct, this is so written on the operative record and signed by the circulating nurse taking the counts. If there is a discrepancy in the counts, the surgeon is immediately notified and a search is made for the missing article. If the missing item is not found after a thorough search, an x-ray is taken of the patient. In this event, an x-ray is mandatory and cannot be refused by the surgeon. There is no charge to the patient for this x-ray; it is paid for by the hospital. . . . counts are taken on each case; one before the case begins; one prior to the closure of the peritoneum or the first layer of tissue . . . .”

      . “DUTIES OF THE CIRCULATING NURSE
      “1.-3. * * *
      “4. Check sponge count, needle count, instrument count with scrub before the case is started.
      “6. — 10. * * *

      “11. Place dirty sponges where they can easily be seen by the scrub nurse and the anesthetist. Keep sponges counted and be ready to be closed and in a C-Section when the uterus is ready to be closed also.”

      . “DUTIES OF THE SCRUB NURSE
      “1. Dust the room before starting the case.
      “2. Help circulating nurse in opening supplies.
      “3. When possible pull own sutures for the case.
      “4. At least 15 minutes before surgery is scheduled start to scrub and set up.
      “5. Check doctors card and set up tables. Sponge count is to be taken before the incision is made.
      “6. Try to anticipate the doctors’ needs as your surgery progresses.
      “7. Any break in technique is to be brought to the attention of the doctors IMMEDIATELY!!
      “8. Sponge count is taken as the doctor is ready to close the peritoneum. ... All vaginal surgery is to have a count before the patient leaves the room. All cases require sponge count.”