text:
    STATE of Missouri, Plaintiff-Respondent, v. Gregory SHEGOG, Defendant-Appellant.
    No. 40031.
    Missouri Court of Appeals, Eastern District.
    Jan. 30, 1979.
    Robert C. Babione, Public Defender, Theodore Guberman, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Michael Elbein, Jefferson City, George A. Peach, Circuit Atty., Douglas A. Forsyth, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   CRIST, Judge.

Defendant was found guilty by a jury of possession of heroin and of carrying a concealed weapon. Under the Second Offender Act, the court set punishment at ten and five years, respectively, the sentences to run consecutively, in the Missouri Department of Corrections.

Defendant claims that the evidence was insufficient to prove beyond a reasonable doubt that the defendant was in possession of a controlled substance or a concealed weapon. We disagree.

On January 3,1977, officers of the St. Louis Police Department observed through a window of Frank’s Pool Hall, several persons, including the defendant, gambling by dice. The officers entered the premises and arrested the men who were gambling, including the defendant. Following his arrest for gambling, defendant was searched by Detective Shrum.

When the search revealed a gun and a vial of thirty-two pills, defendant was advised of his rights and the charges. He stated that he understood his rights. When asked about the gun, the defendant stated, “I carry it for my protection.” When asked if the pills belonged to one of the two major drug dealers in the area, the defendant stated, “My dope. I work by myself.” At the time of the arrest, the officer removed a concealed, operable, loaded .38 caliber pistol from defendant’s waistband. The pills were analyzed in the police laboratory and were found to contain heroin.

Defendant took the witness stand in his own defense and denied that he had been in possession of the gun and heroin, denied that the officer had removed them from his person, and denied that he had made any statements to the officer about them. He testified that when the police entered the premises he was playing the pinball machine, that no contraband was found on his person when he was searched, and that five minutes later the officer approached him again and arrested him on the charges for which he was tried.

The law in Missouri regarding the determination of the sufficiency of evidence in a criminal prosecution is stated in State v. Schleicher, 438 S.W.2d 258, 260 (Mo.1969):

“In testing the sufficiency of evidence in a criminal prosecution by a motion for a judgment of acquittal, the facts in evidence and the favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded.”

The State produced evidence that the defendant, knowingly, was in possession of heroin and was carrying a concealed, dangerous, and deadly weapon. Three witnesses testified that defendant was in possession of a gun and of heroin when he was searched. The pistol was found concealed in defendant’s waistband.

Defendant’s testimony that he never had the gun or the heroin is disregarded on appeal to the extent it is inconsistent with evidence to the contrary.

“The jurors were entitled to believe or disbelieve and reject those parts of the defendant’s statements and testimony which tended to exculpate him just as they were privileged to weigh and determine the credibility of all other evidence in the case.” State v. Davis, 365 S.W.2d 577, 580 (Mo.1963); see State v. Longmeyer, 566 S.W.2d 496 (Mo.App.1978).

It was the province of the jury to consider the veracity of the conflicting testimony. It chose to believe the State’s witnesses.

The judgment is affirmed.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Robert SANDERS, Appellant.
    No. 40293.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 30, 1979.

      Harris, Kirksey & Thomas, Henry Thomas, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Defendant was charged and convicted of operating a motor vehicle without the consent of the owner. His appeal raises two points charging trial court error in failing to declare a mistrial, first, after “the prosecutor and the state’s witnesses made repeated references” to defendant’s stealing an automobile — a crime different from that which he was charged. The second professed error is based on the prosecutor’s interrogation of defendant upon cross-examination as to whether a co-defendant had pleaded guilty to the charge. There is no merit to either point raised, and we affirm.

It is not essential to repeat the facts of the case. It is sufficient to note that the evidence of defendant’s guilt of the crime for which he was charged and convicted was substantial. With regard to the first point, defendant alleges five instances of either a prosecutor’s comment or witness’ statement purportedly referring to the charge of stealing a car as opposed to the actual charge of operating a motor vehicle without the owner’s consent. See §§ 560.-165 and 560.175, RSMo 1969. In three of the five instances, no objection was made to the comment. In one instance an objection was made which was sustained and the jury instructed to disregard the comment, but no mistrial was requested. Therefore, on four of the five occasions of claimed misconduct there was no request for relief or the trial court granted all the relief sought. Hence, nothing was preserved for review. State v. Stamps, 569 S.W.2d 762 (Mo.App.1978); State v. Henderson, 547 S.W.2d 141 (Mo.App.1976); State v. Cranberry, 530 S.W.2d 714 (Mo.App.1975). The only comment preserved for review which allegedly suggests another crime was the prosecutor’s closing argument during which he said:

“The case is that Mr. Sanders was driving that vehicle, that he was driving that vehicle in the company of Mr. Grays [defendant’s companion and co-defendant], that he and Mr. Grays had arrived at the Forest Cadillac dealership earlier that morning and had used the keys that they had procured from Forest Cadillac.”

We specifically find that the foregoing statement does not constitute an allegation of a crime different than that charged, and certainly there is no abuse of the trial court’s considerable discretion in controlling argument of counsel and refusing to invoke the drastic measure of mistrial by reason of the comment. State v. Stamps, supra.

Defendant’s second point goes to the prosecutor’s cross-examination of defendant regarding the fact that his co-defendant (Mr. Grays) had pleaded guilty. An objection was made to the reference, which was sustained, and the jury instructed to disregard it, but there was no request for a mistrial. The defendant now asks that we consider the application of plain error under Rule 27.20(c). We first observe that the defendant on direct examination opened the pathway for the prosecutor’s interrogation by testifying as to the disposition of his co-defendant’s case. Thus, there was no abuse of the trial court’s discretion in failing to sua sponte declare a mistrial. The cross-examination was within the fair purview of the direct examination and was proper. State v. Harris, 564 S.W.2d 561 (Mo.App.1978). Further, we cannot find that any manifestation or miscarriage of justice would result by our failure to invoke the plain error rule. State v. Davis, 566 S.W.2d 437 (Mo. banc 1978), is on point in this regard.

Judgment affirmed.

REINHARD, P. J., and CLEMENS, J., concur.


author: BILLINGS, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jimmie Dean HAGER, Defendant-Appellant.
    No. 10698.
    Missouri Court of Appeals, Southern District, Division II
    Jan. 31, 1979.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Kristie Green, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    J. D. Baker, Belisle & Baker, Osceola, for defendant-appellant.
   BILLINGS, Presiding Judge.

In a jury-waived trial defendant Jimmie Dean Hager was found guilty of assault with intent to do great bodily harm with malice aforethought in violation of § 559.-180, RSMo 1969. Defendant questions the sufficiency of the evidence to support the guilty verdict, says there was substantial evidence to demonstrate he acted in self-defense, contends he was denied his right to a speedy trial, and erred in the reception of evidence. We affirm.

Our review of the sufficiency of the evidence to support a conviction in a jury-waived criminal case is the same as though a guilty verdict had been returned by a jury and we accept the state’s evidence, together with all reasonable inferences deducible therefrom, as true and ignore evidence and inferences to the contrary. State v. Sanderson, 528 S.W.2d 527 (Mo.App.1975).

Briefly summarized, the evidence and inferences in support of the verdict are as follows:

Defendant had been formerly married to Donna Gamel, the wife of the victim of the assault, Warren Gamel. A child born to defendant and Donna had been adopted by Warren and there had been harsh words between defendant and Warren concerning defendant’s visitation with the child. In May, 1974, Warren and Donna were horseback riding along a country road when they met a car driven by defendant. Defendant was accompanied by his wife and the latter’s daughter. Defendant stopped the car, blocking the road. He then proceeded to get out of the car, grabbed the rein of the horse Warren was riding, and challenged Warren to get off of his horse and fight. When Warren declined the defendant’s invitation, defendant said: “Well, you son-of-a-bitch, if you won’t come down from there I’ll knock you down.” Defendant picked up a rock, the size of which was described as “sticking out of both ends of his hand”, and threw it at Warren. The rock struck Warren and he toppled from his horse, striking his head when he fell. Warren was taken to a doctor who described his injuries as a skull fracture on the left side of his temple above the ear and a laceration on top of his head.

Before Warren was taken to the doctor, Mr. Higgenbotham came upon the scene. He lived nearby and had heard screams for help. When he arrived, he observed “[Defendant] was — had Mr. Gamel partially sitting up and was — looked like he was trying to stop the bleeding.” After Warren had been removed from the scene of the fracas, Mr. Higgenbotham came back to the place a short time later. The defendant also came back to where the incident occurred and Mr. Higgenbotham asked the defendant what had happened. Defendant replied: “Mr. Gamel and I had some difficulty — an argument — and I hit him with a rock.”

Following evidence of both parties, the 452 page transcript reveals the trial court made extensive findings of fact and conclusions of law in arriving at its verdict and rejecting defendant’s defense of self-defense. We have laboriously plowed through the voluminous transcript of this court-tried case and have no difficulty in ruling there was substantial evidence to support the verdict of the tolerant and patient trial judge.

Defendant, in his brief and in oral argument, seeks to advance his position of no substantial evidence, by attacking the credibility of the state’s witnesses, particularly that of Donna Gamel. Conflicts in evidence and determination of the credibility and the weight to be given to testimony are within the province of the trier of fact, in this case an experienced trial judge, and are not cognizable on appeal. State v. Kellick, 521 S.W.2d 166 (Mo.App.1975).

We have reviewed defendant’s other points and find no merit in them.

The judgment is affirmed.

HOGAN and MAUS, JJ., concur.

      . The trial court sentenced defendant to a two-year prison term but suspended execution of the sentence and placed him on supervised probation for a like period.


author: BROCK, Justice.

text:
    George L. DOBBINS, Jr., Larry Garrett, Stanley Jeffries, Chester Robinson and Tommy Tabor, Appellants, v. Gentry CROWELL, Secretary of State of the State of Tennessee, Ray Blanton, Governor of the State of Tennessee, William M. Leech, Jr., Attorney General of the State of Tennessee, David Collins, Coordinator of Elections of the State of Tennessee, James E. Harpster, Jack C. Seaton, Tommy Powell, Richard Holcomb, and Lytle Landers, Commissioners of the State Board of Elections, Kathryn I. Bowers, Thomas Avery, Carl Moore, James Smith, Anne Weldon, Commissioners of Election of Shelby County, Tenn., Edward Davis, and the County Committee of the Democratic Party of Shelby County, Appellees.
    Supreme Court of Tennessee.
    Feb. 12, 1979.

      Robert Walker, Charles T. Tuggle, Jr., Stephen C. Morton, Memphis, for appellants; Heiskell, Donelson, Adams, Williams & Kirsch, Memphis, of counsel.
    Herman Morris, Jr., Thomas M. Daniel, Memphis, for appellee Edward Davis; Rat-ner, Sugarmon, Lucas & Henderson, Memphis, of counsel.
    William W. Hunt, III, Asst. Atty. Gen., Nashville, for appellees Crowell, Blanton, Leech, Collins, Harpster, Seaton, Powell, Holcomb and Landers; William Leech, Jr., Atty. Gen., Nashville, of counsel.
    Philip G. Kaminsky, Asst. Shelby County Atty., Memphis, for appellees Bowers, Avery, Moore, Smith and Weldon.
   OPINION

BROCK, Justice.

This dispute grows out of the 1978 election of the appellee, Edward Davis, to the office of State Senator from Senate District 33 which is in Shelby County. Mr. Davis ran as the nominee of the Democratic party and appellant, George L. Dobbins, Jr., stood for the same office as nominee of the Republican party. Mr. Dobbins and the other plaintiffs filed this suit to enjoin State and county election officials from listing appel-lee, Edward Davis, as the Democratic nominee on the ballot for the November 7, 1978, general election and from taking any other steps which would enable appellee, Davis, to assume the office of Senator. The complaint was amended to also seek a judgment declaring Davis ineligible (1) to be the Democratic nominee for State Senator, District 33, (2) to receive a certificate of election or (3) to hold the office of Senator.

Plaintiffs based their right to relief upon allegations that defendant Davis did not timely file a pre-Primary election campaign financial disclosure statement as required by the Campaign Financial Disclosure Act, T.C.A., § 2-1001 et seq. They contend that failure of defendant Davis to timely file the statement rendered him ineligible under the provisions of T.C.A., § 2-1016(a), to hold the office of Senator.

The Chancellor held on November 1,1978, that, construing T.C.A., §§ 2-1008 and 2-1016, together, their provisions did not mandate disqualification of defendant Davis and, accordingly, denied the relief sought and dismissed the complaint. The Chancellor also concluded that the statute applies unequally to independent candidates on the one hand and nominees of political parties on the other. Although we do not agree with all of his reasoning, we affirm the decision of the Chancellor.

I

T.C.A., § 2-1016(a), provides:

“If a candidate shall fail to appoint a political treasurer and give notice of such appointment to the librarian as provided for in § 2-1005, or if the political treasurer of the candidate shall have failed to file any statement required to be filed under §§ 2-1008 or 2-1010 before the election, unless there has been a substantial compliance, the candidate shall forfeit the right to be qualified as a nominee for a general election or a candidate for a runoff election, or be given a certificate of election.”

The appellants contend that this provision of the “Campaign Financial Disclosure Act of 1975” served not only to deprive Mr. Davis of his status as the nominee of the Democratic party for the State Senate acquired by virtue of his winning the primary election held on August 3, 1978, but also had the further effect of disqualifying Mr. Davis from becoming the nominee of the Democratic party for the office of State Senator by virtue of a convention conducted by his political party on October 3, 1978.

We cannot agree with this construction of the statute. The Act is a comprehensive one dealing with elections of all types and employs general provisions, rather than specific ones, limited to each particular type of election. Necessarily, therefore, the application of such general provisions to any particular type of election requires that the courts determine the legislative intent through a reasonable construction of the act as a whole.

T.C.A., § 2-1016(a), above quoted, deals with both primary and general elections and provides that an offending “ . candidate shall forfeit the right to be qualified as a nominee for a general election or a candidate for a runoff election, or be given a certificate of election.”

It is our opinion that this forfeiture provision means that if the violation is one preceding a primary election, the offending candidate shall forfeit his right of nomination acquired by virtue of that primary election, and nothing more; but, if the violation is one with respect to a general election, that the candidate shall not be given a certificate of election in the event that he wins.

It appears in the record that the County Committee of the Democratic party of Shelby County convened on October 3, 1978, and, because Mr. Davis’ nomination in the primary election of August 3, 1978, had been called in question due to the failure of his political treasurer to file the financial statement prior to the primary as required by T.C.A., § 2-1008(a), duly adopted a resolution renominating Mr. Davis as the candidate of the Democratic party for the office of State Senator to be voted on in the general election of November 7, 1978. We hold that Mr. Davis was eligible to receive that nomination by convention and to be a candidate in the general election conducted on November 7, 1978.

II

It is our further conclusion that the plaintiffs are without authority and standing to maintain this action. Certainly, the decision of this Court in Comer v. Ashe, Tenn., 514 S.W.2d 730 (1974), does not confer such standing, as insisted by appellants. This is necessarily true because the Campaign Financial Disclosure Act of 1975 had not been enacted when Comer v. Ashe was decided in 1974. Obviously, that case had nothing to do with standing or authority of private citizens to sue under that Act. The only provisions of the Act respecting its enforcement are found in T.C.A., § 2-1015, which provides:

“(a) It shall be the duty of the attorney general:
(1) To provide opinions upon the requirements of this chapter to the librarian;
(2) In the event of an alleged violation or written complaint to notify the candidate or political campaign committee of such allegation or complaint with appropriate opportunity for a response to the allegation or complaint;
(3) To investigate any sworn complaint filed in accordance with § 2-1014 or any alleged violations of this chapter; and
(4) To take appropriate action to provide for the enforcement of the provisions of this chapter.
(5) To examine each statement filed with the librarian pursuant to §§ 2-1003, 2-1005, 2-1008 — 2-1010, and 2-1012 within six (6) months after the date of each election to determine whether the statement conforms to law and to the truth. Such examination shall include a comparison of all reports and statements received by the librarian pertaining to the election.
“(b) The attorney general may:
(1) Seek injunctions for a circuit or chancery court of this state to enforce the provisions of this chapter.
(2) Require any person to answer in writing and under oath or affirmation any question within the knowledge of that person concerning the source of any contribution, or the disposition of any expenditure.”
It is provided in T.C.A., § 2-1002(7):
“‘Attorney general’ means the attorney general of the state of Tennessee.”

In our opinion this language clearly discloses the Legislative intent that the duty and authority to enforce the “Campaign Financial Disclosure Act of 1975” shall be vested solely in the Attorney General of the State of Tennessee. See Bennett v. Stutts, Tenn., 521 S.W.2d 575 (1975); Coleman v. Henry, 184 Tenn. 550, 201 S.W.2d 686 (1947); In Re Metzenbaum, 26 Ohio Misc. 47, 265 N.E.2d 345 (1970); Los Angeles Cty. Dem. Cent. Com. v. County of L. A., 61 Cal.App.3d 335, 132 Cal.Rptr. 43 (1976).

In Bennett v. Stutts, supra, we announced a rule which is applicable here:

“When the duty of taking appropriate action for the enforcement of a statute is entrusted solely to a named public officer, private citizens cannot intrude upon his functions. In cases of purely public concern and in actions for wrongs against the public, whether actually committed or only apprehended, the remedy, whether civil or criminal, is as a general rule by a prosecution instituted by the state in its political character, or by some officer authorized by law to act in its behalf, or by some of those local agencies created by the state for the arrangement of such of the local affairs of the community as may be entrusted to them by law.” 521 S.W.2d at 577.

In Coleman v. Henry, supra, the plaintiffs filed suit against the campaign manager of the successful Democratic candidates for United States Senator, Governor, and Railroad and Public Utilities Commissioner in the primary election of August, 1946. The plaintiffs sought a declaratory judgment respecting sections of the code which required the filing of a financial statement of campaign expenditures by candidates or their campaign managers. In upholding the dismissal of the action, this Court said:

“ . . . complainant as a ‘citizen, taxpayer and a qualified voter’ has no such special interest in the matters upon which a declaration is sought as entitled him to a declaration. .
“ ‘The general rule is that a party having only such interest as the public generally has, cannot maintain an action for a Declaratory Judgment. . . . ’
“A voter as such cannot secure for himself and all others, a declaration on the interpretation of a model registration act.
“ ‘A declaration will be denied which is sought to determine rights not of persons nor property but of a purely political character.’ ” 201 S.W.2d at 687.

The Act contains no provision whatever, express or implied, authorizing a nominee of another political party or private citizens such as the plaintiffs to bring an action to enforce its provisions. We hold that they may not do so.

If treated as a contest of the Democratic primary election of August 3, 1978, Mr. Dobbins, a Republican, is without standing because T.C.A., § 2-1704, limits standing to Democratic candidates, if any, who opposed Mr. Davis in that election. That section provides:

“Any candidate may contest the primary election of his party for the office for which he was a candidate.” (Emphasis added.) T.C.A., § 2-1704.

We do not agree with the conclusion of the Chancellor that the Campaign Financial Disclosure Act unreasonably discriminates against nominees of political parties and in favor of independent candidates; we find no such constitutional infirmity in the statute.

Except as herein modified, the decree of the Chancellor is affirmed and costs incurred by this appeal are taxed against appellants.

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


author: LLOYD TATUM, Special Judge.

text:
    Hall WRIGHT, Executor of the Estate of Alice W. Arnold, Deceased, Appellant, v. UNIVERSAL TIRE, INC., Appellee.
    Court of Appeals of Tennessee, Western Section.
    Sept. 13, 1978.
    Certiorari Denied by Supreme Court Feb. 12, 1979.

      Robert Orr, Jr., F. Clay Bailey, Jr., Nashville, for appellant.
    Larry D. Woods, Nashville, for appellee.
   OPINION

LLOYD TATUM, Special Judge.

This is an appeal from a judgment of the Probate Court of Davidson County ordering specific performance of a contract to sell land. The deceased, Alice W. Arnold, leased to the appellee, Universal Tire, Inc., certain property in Nashville for a five-year period; the lease gave the appellee an option to purchase in the event of the lessor’s death during its term. The lessor died testate during the term of the lease and the appellee gave the appellant notice of its intent to purchase the property. The appellant’s failure to convey the property to the appellee resulted in this suit for specific performance. The judgment of the Probate Court granting specific performance is affirmed.

The threshold question for our determination is whether the Probate Court of Davidson County had jurisdiction of the subject matter in this suit for specific performance. It is axiomatic that suits for specific performance lie within the inherent jurisdiction of the Chancery Court. Tennessee Valley Authority v. Mason Coal Company, Inc., 384 F.Supp. 1107 (D.C. Tenn.), affm’d. 513 F.2d 632 (6th Cir. 1974); Dantzler v. Sadd, 6 Civ.A. (Higgins) 574 (Tenn.Civ.App.1915); 2 Gibson’s Suits in Chancery § 995 et seq. (5th ed. 1956).

The Probate Court of Davidson County was created by Chapter 124, Private Acts of 1963. The appellee urges that this Act gave jurisdiction to the Probate Court, but the appellant vigorously insists that it did not. Although not cited by the parties, we think that the issue is resolved by Chapter 366, Private Acts of 1974:

SECTION 1. BE IT ENACTED, That the Probate Court of Davidson County, in addition to the jurisdiction heretofore vested in it by statute, shall have and exercise all the jurisdiction now or hereafter conferred upon the Chancery Court of Davidson County.
SECTION 2. BE IT FURTHER ENACTED, That in the exercise of the jurisdiction conferred upon it hereunder, the Probate Court and the Judge thereof shall be subject to and bound by all the statutes and rules applicable to the Chancery Court of Davidson County. Causes which may be filed in or transferred to the Chancery Court of Davidson County may be assigned to said Probate Court in the same manner in which causes are assigned to the several Parts of the Chancery Court of Davidson County.
SECTION 3. BE IT FURTHER ENACTED, That the Clerk and Master of the Chancery Court of Davidson County shall act as Clerk and Master for said Probate Court in all matters pertaining to the jurisdiction conferred upon said Probate Court by this Act.

Since the Chancery Court has jurisdiction, we hold that the Probate Court of Davidson County has jurisdiction by virtue of the above amendatory act.

The appellant also contends that the court did not have jurisdiction over him as an individual but only in his capacity as executor. The summons is addressed to the appellant by name only; in the pleadings the appellant is referred to as “Hall Wright, Executor of the Estate of Alice W. Arnold.” The appellant’s attorney accepted service of process on his behalf and an answer was filed asserting no defense based on lack of jurisdiction over the person. This defense was waived. Rule 12.02, Tennessee Rules of Civil Procedure.

The appellant insists that the ap-pellee’s failure to file a “claim” with the Clerk of the Probate Court within six months from the date of notice to creditors as required by T.C.A. § 30-510 bars the appellee’s cause of action. We disagree. The term “claim” as used in T.C.A. § 30-510 et seq. does not include an action for specific performance, but refers to debts or demands against the decedent which might have been enforced by personal actions for the recovery of money, upon which only a money judgment could have been rendered. The statutes are not applicable to claims for specific property coming into the hands of personal representatives. Shields v. Alsup, 73 Tenn. 508 (1880); Hooper v. Bryant, 11 Tenn. 1 (1832). Another reason that these code sections are not applicable is that suits for specific performance may be maintained against the heirs or those who acquire subject property by will. While the personal representative is a proper party in a suit of this kind, he is not a necessary party; the heirs or one acquiring the property by will are necessary parties. Hale v. Darter, 24 Tenn. 79 (1844).

The appellant next insists that the personal representative cannot be required to execute the conveyance since the written agreement was not recorded. He cites T.C.A. § 64-402. We overrule this assignment by authority of Brister v. Estate of Brubaker, 47 Tenn.App. 150, 336 S.W.2d 326 (1960).

The appellant also insists that the contract did not grant to appellee an absolute right to purchase, but only granted the right of “first refusal” to purchase in the event the appellant chose to sell. The pertinent portion of the contract provides:

12. In the event LESSOR shall die during the original term of this lease or should she die during any of the extended terms of this lease, LESSEE shall be given first option to purchase said premises; provided, LESSEE shall notify LESSOR’S representative of its intention to purchase said premises within six (6) months from the death of LESSOR. The purchase price of said premises shall be determined by two (2) disinterested appraisers, one of whom shall be selected by LESSOR’S representative and one of whom shall be selected by LESSEE. Said appraisers shall appraise said premises and arrive at a purchase price. In the event said appraisers are unable to agree upon a purchase price for said premises, then in that event, said appraisers shall select a third appraiser who shall then decide upon a purchase price for said premises. LESSEE shall have one (1) year from the date of LESSOR’S death within which to close the purchase of said premises.

We agree with the trial judge that the contract gave the appellee an option and not a mere right of “first refusal.” The trial judge said:

In the instant case, it seems to the Court that the circumstances that the lessee (petitioner) had leased this property for over forty years, that the lessor did not want to sell, that this provision took effect only upon lessor’s death and that detailed provisions are made for the method of determining the value of the property, it seems to the Court that these circumstances would tend to support a conclusion similar to that reached by the Supreme Court of Missouri in said case of Powell v. Kennedy, Executrix, [463 S.W.2d 802 (1971)].
In the case of Steen v. Rustad, 132 Mont. 96, 313 P.2d 1014, the Supreme Court of Montana held that a lease provision giving the tenant “first option to buy”, the tenant was given the exclusive option to buy in view of the entire language of the lease agreement.
In the case of Hake v. Groff, 232 Mich. 233, 205 N.W. 145, the Supreme Court of Michigan held that, in construing option agreement in a lease, courts may properly refer to the situation of the parties and the circumstances and conditions under which the contract of lease was made.
In view of the foregoing authorities, it is the opinion of the Court that the respondent’s position that the provision in paragraph 12 of the lease did not create an option to purchase is not tenable.

Finally, the appellant complains of the action of the trial judge in adjudging:

It is further the conclusion and opinion of the Court that petitioner is entitled to credit on the purchase price in the amount of rent payments made under the lease commencing with the month of May, 1975, less property taxes paid by lessor or respondent from and after May, 1975, being the first full month following the date on which petitioner notified respondent that it desired to exercise its option.

We think that this adjudication is correct. When the option was exercised by the appellee, the lease and all of its incidents, including the obligation to pay rent, was blotted out of existence, and the relation of vendor and vendee was created. The appellee had an equitable interest in the land and equitable title passed to it, subject to the payment of the purchase price. Chapman Drug Company v. Chapman, 207 Tenn. 502, 341 S.W.2d 392 (Tenn.1960). The appellant lost interest on the proceeds of the sale as a result of his refusal to comply with the terms of the contract; for this, he cannot complain. We find no error.

All assignments are overruled. Costs are adjudged against the appellant.

MATHERNE and SUMMERS, JJ., concur.

      . Hall Wright was the Executor of the estate of Alice W. Arnold and he also acquired the subject property under her Will.

      . Had the rule been complied with, the appellee could have corrected any misjoinder or non-joinder by amendment.


author: NEARN, Judge.

text:
    Linda D. GERMAN and William L. German, Appellants. v. George C. NICHOPOULOS, M. D. and Baptist Memorial Hospital, Appellees.
    Court of Appeals of Tennessee, Western Section.
    Sept. 15, 1978.
    Certiorari Denied by Supreme Court Feb. 12, 1979.

      Richard J. Ryan, Sr., Richard J. Ryan, Jr., Memphis, for appellants.
    J. Kimbrough Johnson, Max Shelton, Memphis, for appellees.
   NEARN, Judge.

This is a plaintiffs’ appeal from the action of the Trial Judge in a medical malpractice case in (a) directing a verdict for the defendant hospital at the close of plaintiffs’ proof and (b) directing a verdict for the defendant doctor at the close of all the proof.

Plaintiff, William L. German, is the husband of Linda D. German and his claim is for loss of consortium and medical expenses incurred in behalf of his wife. Since his claim is purely derivative, during the course of this Opinion we will refer to the plaintiffs in the singular. By the use of the term, plaintiff, we refer only to Linda D. German.

The complaint alleges the following facts: On the advice of her physician, the defendant, Dr. Nichopoulos, plaintiff was admitted to the defendant hospital as a patient for observation and tests for weakness and palpitation; further, that while undergoing tests that a resident intern, or doctor of the hospital, gave plaintiff an intravenous injection into the back of her right hand, which injection “failed”. Upon receiving the injection in her right hand, she immediately felt pain and the back of her hand began to swell. Plaintiff complained about this condition to the nurses present and later to Dr. Nichopoulos. Plaintiff was assured by Dr. Nichopoulos that both the swelling and pain would subside. Although the pain to some extent lessened, the swelling did not. Dr. Nichopoulos, while treating her on an out-patient basis, continued to advise plaintiff that the swelling would subside. Further, “that this swelling produced another reaction in that her fingers began to draw toward the palm of her hand, but that she could not close her hand; that her hand resembled a claw.” Plaintiff sought other medical advice and, as a result thereof, underwent surgery in an attempt to improve the function of the hand. Permanent scarring of the right hand and permanent impairment of its use have resulted.

The acts of negligence of the defendants were set forth in the complaint with specificity as follows:

IV.
ACTS OF NEGLIGENCE OF CO-DEFENDANT,
BAPTIST MEMORIAL HOSPITAL
1. That the defendant, by and through their agents, servants, or employees, in endeavoring to give an injection in the top of the plaintiff’s hand did not exercise that degree of skill and care ordinarily exercised by others of the profession in the City of Memphis, State of Tennessee.
2. That the defendant, by and through their agents, servants, or employees, failed to inform the plaintiff, Linda D. German, of the risks incident to giving the injection in the top of her hand, thereby invalidating any consent, express or implied, which she may have given regarding this injection,
3. At the time of the injection into the plaintiff’s hand the defendant was in exclusive control of the plaintiff and her surroundings, and the instrumentalities and procedures used were under the sole and exclusive knowledge and control of the defendant.
4. That the defendant failed to exercise ordinary and reasonable care for the safety and well-being of Linda D. German under the existing circumstances.
5. That the defendant failed to use reasonable care that is regularly exercised in the community in the giving of injections so as to avoid injury to the hand of the plaintiff.
6. That the defendant failed to use reasonable care in attending to the plaintiff’s hand after the injection and failed to react to her complaints of pain and swelling in a reasonable manner, thus preventing a lessening of the plaintiff’s injury.
7. That the defendant failed to use reasonable care in notifying the plaintiff, William L. German, of his wife’s injury so that he might seek proper medical care for his wife.
8. That the defendant failed to use reasonable care by their failure to inform the plaintiff of the risks incident to such an injection, thereby injecting the plaintiff’s hand without her informed consent.
V.
ACTS OF NEGLIGENCE OF CO-DEFENDANT,
GEORGE C. NICHOPOULOS, M.D.
1. That the defendant failed to exercise ordinary and reasonable care for the safety and well-being of Linda D. German under the existing circumstances.
2. That the defendant failed to exercise that degree of skill, care and ability that is regularly exercised by other competent physicians in this community.
3. That the defendant failed to use reasonable care in attending to the plaintiff’s hand after the injection and failed to react to her complaints of pain and swelling in a reasonable manner, thus preventing a lessening of the plaintiff’s injury.
4. That the defendant failed to use reasonable care in notifying the plaintiff, William L. German, of his wife’s injury so that he might seek proper medical care for his wife.
5. That the defendant failed to use reasonable care by his failure to inform the plaintiff of the risks incident to such an injection, thereby injecting the plaintiff’s hand without her informed consent.”

Eleven Assignments of Error are filed in this Court. Eight of the Assignments of Error collectively raise but two issues which are (a) did the Trial Judge err in directing a verdict for the defendant hospital at the close of plaintiffs’ proof and (b) did the Trial Judge err in directing a verdict for the defendant doctor at the close of all the proof. Two of the Assignments of Error complain of evidentiary exclusions, and the remaining Assignment of Error complains of the refusal of the Trial Judge to permit plaintiff to take a non-suit as to the defendant hospital.

We will dispose of the non-suit complaint first.

The record shows that at the close of plaintiffs proof counsel for both defendants moved for directed verdicts. Extended arguments by all counsel were had with questions and observations made by the Court and responses thereto by counsel. At the close of argument counsel for plaintiff stated, “Again I feel that we should be allowed to go to the jury on the question of the treatment of the Baptist Hospital. And I’ve noted my reasons for that. I stand on them.” Thereafter, the Trial Judge considered the matter, restated the positions of the parties, noted that plaintiff sought recovery against the hospital on three theories, i. e., the doctrine of res ipsa loquitur, negligence, and lack of informed consent, discussed plaintiff’s proof and verbally concatenated the reported Tennessee cases he thought applicable to the theories and proof. He, first, explicitly directed a verdict in the hospital’s favor on the issue of res ipsa, then stated there was no evidence whatsoever of negligence on the part of the hospital or the intern, then stated insofar as the theory of informed consent is concerned, there was no proof that the injection by the hospital was without consent and there was no evidence that the hospital withheld any vital information that: (we now copy from the record)

“would vitiate any verbal or written consent.
So on the three theories—
MR. RYAN, JR.: Your Honor, can I consult with my co-counsel just one minute?
MR. RYAN, SR.: Excuse us, Your Honor.
THE COURT: All right.
MR. RYAN: Your Honor, at this time, just as regard to the Baptist Hospital, I’d like to take a non-suit.
MR. SHELTON: If Your Honor please, I’m going to object.
THE COURT: It’s come too late, Counselor. It’s been submitted to the Court.
MR. RYAN: Thank you, Your Honor.
MR. SHELTON: Not only that, but the Court has already ruled.
THE COURT: So the Court will grant a directed verdict as to the Baptist Hospital on all three theories — res ipsa loqui-tur, negligence, and informed consent.”

In his brief, plaintiff’s counsel argues, “While the Court was outlining the theories of the parties and the applicable law, Counsel for the appellants moved for a non-suit _ _ The only way we can answer that argument is to simply say; it isn’t so. We are cited to the Tennessee Rules of Civil Procedure, Rule 41.01 and various reported cases which are all to the effect that a plaintiff may take a non-suit “prior to the ruling of the court sustaining a motion for a directed verdict.” The cases are not here applicable.

We concur in the statement of the Trial Judge which is found in the order overruling the motion for a new trial:

“with respect to the assignment of error specifically complaining that the plaintiff should have been permitted to take a non-suit as to the defendant Baptist Memorial Hospital, the Court is of the opinion and finds that said defendant’s motion for a directed verdict had been argued and submitted to the Court and the Court had ruled thereon prior to the motion for non-suit being made.”

Accordingly, the Assignment of Error is overruled.

We will now take up the Trial Court’s action in directing a verdict for the defendant hospital at the conclusion of plaintiff’s proof.

As may be perceived from the portions of the complaint heretofore copied, recovery was sought from the hospital on theories of negligence (Acts 1, 4, 5, 6, and 7 set out in the complaint), failure to obtain an informed consent (Acts 2 and 8), and the doctrine of res ipsa loquitur (Act 3).

A recovery based on a theory of negligence requires proof of more than a negligent act. The elements necessary to recover are: (a) negligent act which (b) causes a (c) loss. There is absolutely no proof in this record that the injection was negligently administered. To correct that deficiency in the proof, the Trial Court and this Court are called upon to conclude negligence under the theory of res ipsa. As to causation, counsel for plaintiff contends he has proved that by medical testimony, or if not, by “common knowledge”. There is no doubt plaintiff has proved the element of loss.

Testimony of plaintiff’s medical witness is that swelling sometimes occurs when an injection is given in veins at the back of the hand with no negligence whatsoever on the part of anyone. Further, that sometimes there is a natural leakage of the injected fluid from the patient’s vein into the surrounding tissue.

The very heart of the res ipsa doctrine is the principle that the injury complained of does not ordinarily occur absent negligence on the part of the person who has the instrumentality used in his exclusive control. See Brown v. University Nursing Home, Inc. (1972 Tenn.App., M.S.) 496 S.W.2d 503; Swiney v. Malone Freight Lines (1976 Tenn.App., E.S.) 545 S.W.2d 112. The Court cannot take judicial notice that whenever an injection is given which causes pain and swelling, negligence is ordinarily present, especially so when the proof is to the contrary. Consequently, since there is no proof of an act of negligence on the part of the hospital in the administration of the injection, and no inference thereof can be supplied by law, all other arguments of counsel, save two, regarding the action of the Trial Court in directing a verdict for the defendant hospital at the close of plaintiff’s proof are moot as proof of the first necessary element of recovery is absent.

Liability predicated on the doctrine of informed consent is not dependent upon the existence of negligence in the performance of a physical act. Liability is predicated upon negligence of the physician in the failure to reasonably advise the patient regarding the treatment recommended. The necessary result of that failure is that any consent given by the patient for that treatment is said to be without an informed or knowledgeable consent. Ray v. Sheibert (1972 Tenn.App., M.S.) 484 S.W.2d 63 and Longmire v. Hoey (1974 Tenn.App., W.S.) 512 S.W.2d 307. However, in order to recover under this theory in a medical malpractice case, there must be some medical testimony as to the usual and customary advice given to patients to procure consent in similar situations. Section 23-3417 T.C.A. requires the same. There is absolutely no such testimony in the record.

The issue of alleged negligence in the treatment given plaintiff by the hospital after the injection is a non-issue as there is no proof as to what the hospital was supposed to do to reasonably treat plaintiff. See T.C.A. § 23-3414.

We now consider the propriety of the Court’s action in directing a verdict for the defendant, Dr. Nichopoulos.

Numerous arguments are propounded to induce us to reverse the Trial Court’s action in granting a directed verdict in favor of Dr. Nichopoulos. We will not consider all, but will discuss one which renders the rest moot. As we have previously noted, three elements are necessary for recovery in a negligence case, i. e., a negligent act, a loss, and a causal connection between them. See Tennessee Trailways, Inc. v. Ervin (1969) 222 Tenn. 523, 438 S.W.2d 733. A lack of any of the three is fatal to a plaintiff’s case. Therefore, we will consider only one — causation.

Res ipsa has only to do with negligence and just as positive proof of negligence does not constitute proof of causation; proof of negligence via res ipsa does not constitute proof of causation.

Ordinarily res ipsa is not applicable to medical malpractice cases to afford proof of negligence. Quinley v. Cocke (1946) 183 Tenn. 428, 192 S.W.2d 992. This is true because neither lay people nor Courts possess reliable common knowledge in such technical matters. Therefore, expert testimony regarding the standard of care or duty in order to show negligence is required. See Bowman v. Henard (1977 Tenn.) 547 S.W.2d 527. Of course, when medical negligence is, so to speak, as plain as a fly floating in a bowl of buttermilk, an exception to that general rule is permitted and the doctrine may apply; such as when a sponge is left in the gut; the eye cut when performing an appendectomy. See Harrison v. Wilkerson (1966 E.S.) 56 Tenn.App. 188, 405 S.W.2d 649 and Meadows v. Patterson (1937 E.S.) 21 Tenn.App. 283, 109 S.W.2d 417.

For the same reasons the general rule is the same in regard to medical causation. In medical malpractice cases causation is also generally a matter requiring expert testimony. However, that rule also has the “common knowledge” exception; such as an obstruction in the throat will cause strangulation. Crowe v. Provost (1963 M.S.) 52 Tenn.App. 397, 374 S.W.2d 645. The patent presence, so to speak, of the “fly in the buttermilk” type of cause is the basis for the exception that liability may be determined, without medical testimony as to causation, in the exceptional cases, if all other necessary elements are shown.

Since there is no evidence in the record of any negligence in the administration of the injection (which Dr. Nichopoulos did not administer), plaintiff’s cause of action as to the doctor must rest on the negligence (with all elements proven) in the treatment given by him. Now, Dr. Nicho-poulos is not sued for any negligence in the administration of the injection, but is sued for negligent acts in plaintiff’s after treatment which allegedly caused plaintiff’s hand to be contorted to its claw-like appearance. The closest thing found in the record that approaches medical testimony on causation is a lengthy hypothetical question propounded by counsel which asks a medical witness to assume the injection, treatment by Dr. Nichopoulos (or lack thereof), and all facts, down to the claw-like appearance of plaintiff’s hand and closed with, “state whether or not, in your opinion, that you can state to a reasonable degree of medical certainty the injury experienced by Mrs. German was caused by the injection encountered on July 6, 1974?” The answer was, “I think it’s possible.”

Aside from the fact of the speculative nature of the answer, (all things are possible), the question is directed to a specific act of negligence which allegedly caused plaintiff’s injury. That act (injection) was not shown to have been negligently done by the proof and was not done by Dr. Nicho-poulos. Neither the question nor the answer has anything to do with the treatment of Dr. Nichopoulos as a cause of the injury.

However, counsel for appellant insists that it is within the common knowledge of laymen that the after injection treatment afforded by Dr. Nichopoulos caused the claw-like appearance of plaintiff’s hand. We do not agree. We are of the opinion that whether or not Dr. Nichopoulos’ treatment of plaintiff, (which, arguendo, we concede for the purpose of treating this Assignment of Error to have been not within community medical standards) was a cause of plaintiff’s difficulties is not a matter of which we may take judicial notice or is within the common knowledge of laymen. It requires expert testimony and, in this case, there is none. Again, see T.C.A. § 23-3414.

The evidentiary Assignment of Error is addressed to a failure to admit testimony which counsel for appellant insists would show negligence on the part of Dr. Nicho-poulos in the treatment of plaintiff. The issue is moot. Proof of negligence without proof of causation is nothing.

Counsel for appellant faults the Trial Judge for not permitting him, near the close of plaintiff’s proof, to amend his complaint as well as his theory so as to charge Dr. Nichopoulos with negligence in his diagnosis of Mrs. German. From the trial record the only evidence of any motion to amend, by the plaintiff, appears on page 211 of the Bill of Exceptions. Subsequent to the Trial Judge’s statement that plaintiff’s pleadings were not broad enough to include a negligence because of misdiagnosis theory, plaintiff’s counsel asked the court:

“May I make a motion to amend my pleadings?”
The Court answered with the question:
“Amend your pleadings?”

Following the Court’s question the so-called motion to amend was pursued no further nor further mentioned.

We find that no valid motion to amend was ever made. The appellant’s fourth Assignment of Error is without merit.

We last consider appellant’s complaint that the matter should have gone to the jury on the issue of lack of informed consent. This Assignment of Error must be answered in the same manner as most of the others. There is simply no competent proof that presents any jury issue. Counsel insists that simply because plaintiff testified that no one told her of any possible risks prior to receiving the injection, a pri-ma facie case based on lack of informed consent was made out. We disagree and hold, as did the Middle Section of this Court in an unreported ease, that, in matters of informed consent the plaintiff has the burden of proving by expert medical evidence, (a) what a reasonable medical practitioner of the same or similar communities under the same or similar circumstances would have disclosed to the patient about attendant risks incident to a proposed diagnosis or treatment and (b) that the defendant departed from the norm. These are the same criteria set forth in T.C.A. § 23-3417. There is no medical testimony in the record that approaches those criteria.

The result is that all Assignments of Error are overruled and the judgment below affirmed. All costs are taxed against appellant and surety.

Done at Jackson in the two hundred and third year of our Independence and in the one hundred and eighty-third year of our Statehood.

MATHERNE and EWELL, JJ., concur.

      . The Trial Judge stated “. . ., the proof in this case does not meet the standard for it to be a case in which the doctrine of res ipsa loquitor [sic] would be applicable. The Court will grant a directed verdict as to that issue in gavor [sic] of the Hospital.”

      . “23-3417. Proving inadequacy of consent.— In a malpractice action, the plaintiff shall prove by evidence as required by § 23-3414(b) that the defendant did not supply appropriate information to the patient in obtaining his informed consent (to the procedure out of which plaintiffs claim allegedly arose) in accordance with the recognized standard of acceptable professional practice in the profession and in the specialty, if any, that the defendant practices in the community in which he practices and in similar communities.”

      . Subsequent to the injection on July 6, 1974, Dr. Nichopoulos examined, but did not begin to treat Mrs. German’s hand until August 1974. In August he twice prescribed anti-inflammatory drugs for the hand. On September 21, 1974, he prescribed exercise with a rubber ball and a continuation of the taking of anti-inflammatory drugs.

      . Plaintiffs medical proof is that the claw-like appearance directly resulted from “adhesive tendonitis of the extensor tendons of her hand and pericapsulitis of the matacarpal phalangeal and interphalangeal joints of her right hand.”

      . Oaks v. Gesslar, unreported case of the Middle Section, Court of Appeals filed February 27, 1976 and no certiorari applied for.


text:
    Starlet Jean ALVES, by next friend, Gilbert Alves and Gilbert Alves, Individually, Appellees, v. Grady L. JONES and Donald Jones, Appellants.
    Court of Appeals of Tennessee, Western Section.
    Oct. 19, 1978.
    Certiorari Denied by Supreme Court Feb. 12, 1979.

      David R. Farmer, Lewis L. Cobb, Jr., Jackson, for appellants.
    George L. Morrison, David P. Murray, Jackson, for appellees.
   NEARN, Judge.

Starlet Jean Alves, while attempting to cross the street to board a school bus, was struck and seriously injured by a 1972 pickup truck being driven by Donald Jones and owned by his father Grady L. Jones. Gilbert Alves, the father of Starlet Jean Alves, as her next friend and in his individual right, filed suit against the Jones’. The case went to the jury which returned a verdict in favor of Starlet Jean Alves in the amount of $25,000 and in favor of her father in the amount of $5,000.

The defendants appeal with eight Assignments of Error.

The first and second Assignments of Error charge the Court with error in permitting Starlet’s father, who did not witness the accident, to give his opinion as to the speed of the Jones’ vehicle based upon skid marks he viewed at the accident and certain tests he performed.

Mr. Alves is a carpenter who has driven motor vehicles for 26 years and in the course of those years has driven automobiles as well as pickup and other types of trucks.

The record reveals he was asked and answered as follows:

“Now, Mr. Alves, then you are experienced in driving various types of vehicles and have done so over a period of years, is that correct?
“A. Yes, sir.
“Q53. Did you, at my request, make tests to determine the length of time it would take for a vehicle to stop doing 35 mph?
“MR. FARMER: Your Honor, he wouldn’t be qualified as an expert to testify as to test that were made. At least they haven’t laid the foundation at this point.
“THE COURT: I think it would have to be shown the weather conditions were the same, tires, the same type of vehicle. There would be a lot of factors there.
“MR. MORRISON: Well, I was going to get into that, Your Honor.
“THE COURT: Well, go ahead with that, then.
“Q54. Now, did you make a test?
“A. Yes, sir.
“Q55. Was it the same weather conditions as was existing on this day?
“A. It was a dry day; yes. Cool, dry. “Q56. What type of vehicle did you make this test with?
“A. A ’69 Chevrolet pickup.
“MR. FARMER: Your Honor, the only way it would be admissible is if he used the same vehicle as the defendant was operating.
“THE COURT: Well, it might can go to the jury merely for such consideration as they see fit to give it.
“MR. MORRISON: Your Honor, I have authority on it if the Court wants to see it.
“THE COURT: Go ahead.
“Q57. All right. Now, at 35 mph, what skid marks did you lay down?
“A. Forty-five feet.
“Q58. Now, Mr. Alves, based on your experience driving various types of vehicles over the years, when the test was made, what is your opinion of the speed of the pickup truck—
“MR. FARMER: We object to that, Your Honor.
[Objection was overruled.]
“Q59. Now, I will repeat the question, Mr. Alves. Based on your experience in driving these various vehicles and the test you have made, and being familiar with the skid marks laid down by Donald Jones, what, in your opinion, was the speed that he was driving at the time of the accident?
“A. In my opinion, I’d say fifty miles an hour.”
“THE COURT: Ladies and gentlemen, Mr. Alves did not see the accident and was not present. This merely goes to the weight of the testimony and you can consider it and give it such weight as you see fit under the circumstances. All right.”

We recognize that the Trial Judge has broad powers of discretion in determining the qualifications of experts. McCay v. Mitchell (1970 W.S.) 62 Tenn.App. 424, 463 S.W.2d 710; Monday v. Millsaps (1953 E.S.) 37 Tenn.App. 371, 264 S.W.2d 6; Cheek v. Fox (1917) 7 C.C.A. 160. However, the power is not absolute. The only evidence we can find in this record to support a finding that Alves was an expert on skid marks and the estimate of speeds therefrom is the testimony that he has driven vehicles in excess of 25 years. If such be a proper criterion, every driver of a motor vehicle who has driven for over 25 years would qualify as an expert on such matters. We do not believe that such is the rule in this state. See Monday v. Millsaps, supra, at page 16 which sets forth the qualifications of an expert witness on skid marks. Counsel for appellant also attacks the caliber of the Alves test as not meeting recognized standards as to similar conditions, vehicle weight, tire pressure, etc. However, we do not reach that issue for we hold that Alves was not a qualified expert and should not have been allowed to testify at all on the subject. In Thomas v. Harper (1964 M.S.) 53 Tenn.App. 549, 385 S.W.2d 130, somewhat similar evidence was permitted to be introduced and was permitted by the Court on the basis that the Trial Court had correctly ruled that “the objection went to the weight of the testimony and not the competency of it . . . ” The Trial Judge in this case evidently had the Thomas case in mind when he allowed Mr. Alves to testify. However, the distinction between the Thomas case and the instant case is that in Thomas the objected to testimony was that of a Lt. Elmer Craig, presumably of the highway patrol with some accident investigation experience and whose expertise was at least debatable. The Court of Appeals applied the rule that where the expertise of the witness is debatable the discretion of the Trial Court in declaring the witness qualified or not qualified will not be disturbed. Having done so, the testimony was admissible and, like any other testimony, was subject to cross-examination by counsel and a weighing by the jury. In this case we cannot say that it is debatable that Alves is an expert. He is not.

The first two Assignments of Error must be sustained as we cannot say with certainty that the error did not affect the verdict as defendant’s speed was a material issue.

Therefore, the case must be reversed and remanded for a new trial. Since the claim of Mr. Alves is dependent upon the outcome of Starlet’s claim, it too will have to be relitigated.

There is no necessity to reach the other Assignments of Error. We do however, comment that in those cases where the facts would warrant a charge on the doctrine of last clear chance, it ought to be charged as set forth in Street v. Calvert (1976 Tenn.) 541 S.W.2d 576.

Costs of Appeal are adjudged against ap-pellee and costs below will await the outcome of the new trial.

Done at Jackson in the two hundred and third year of our Independence and in the one hundred and eighty-third year of our Statehood.

MATHERNE and EWELL, JJ., concur.


author: LEWIS, Judge.

text:
    Martin D. ROBINSON and wife, Marizona B. Robinson, Plaintiffs-Appellees, v. Luther W. BROOKS and wife, Joy T. Brooks, d/b/a Brooks Custom Homes, Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Nov. 14, 1978.
    Certiorari Denied by Supreme Court Feb. 20, 1979.
    James R. Omer, Omer, Ellis & Brabson, Nashville, for defendants-appellants.
    Jack Green, Green & Womack, Nashville, for plaintiffs-appellees.
   LEWIS, Judge.

OPINION

From the judgment of the Chancellor in rescinding a real estate conveyance and awarding judgment to the appellees in the sum of $122,015.00, the appellants have appealed and assign four (4) errors:

I
The Court erred in finding that the plaintiff was entitled to rescission of the land purchase contract.
II
The Court erred in failing to direct a verdict for the defendant at the conclusion of plaintiffs’ proof.
III
The Court erred in finding the plaintiffs [sic] guilty of negligence for failure to make a proper soil analysis prior to construction.
IV
The Court erred in failing to consider the plaintiffs came into Court with unclean hands and that they made no effort to mitigate their damages.

Defendants, Luther W. Brooks and his wife, Joy T. Brooks, are in the business of developing and subdividing land on which they build homes for resale. In the course of business, defendants built a home on Lot 5 in Country Road Estates, a subdivision in Williamson County.

Plaintiffs purchased this new home and lot from defendants in December of 1975 for $140,000.00. The deed contained the standard warranties and no further representations were made to plaintiffs concerning the quality of construction or suitability of the building site.

Plaintiffs occupied the home in January of 1976. During the first year, normal settling produced some cracks in the house.

However, in February of 1977, shifting of the soil on the lot caused drastic movements of the house which made it appear to be leaning. Defendants were notified and placed sump pumps under the house. Besides some additional uncompleted work on a drainage trench to drain water from the house area, defendants took no further steps to remedy the condition. The house continued to crack and lean. In order to prevent further erosion of the property, plaintiffs installed gutters on the home.

On June 24, 1977, plaintiffs filed a complaint in the Chancery Court for Williamson County, seeking rescission of the sale contract and damages.

On June 29,1977, plaintiffs employed Geological Associates, Inc. for an investigation of the apparent landslide on the property. Plaintiffs paid $5,405.61 for the investigation and report.

On July 26, 1977, plaintiffs deemed it necessary to vacate the home and have not returned.

The report of Geological Associates, Inc. verified the occurrence of a landslide on the site and recommended a plan to stabilize the house at a cost in excess of $47,000.00.

No proof was offered as to the cost of repairing the house. However, it is clear from the record that such expenditures would be fruitless unless the landslides were first controlled.

It was the plaintiffs’ contention in the Chancery Court that the defendants were negligent in failing to obtain the advice and assistance of soil scientists or qualified engineers so that the likelihood of a landslide could have been anticipated and avoided. The defendants contended that they exercised ordinary care in the selection and preparation of the building site and in the construction. Defendants had employed an engineer who met the requirements necessary to obtain approval of the subdivision by the Williamson County Planning Commission.

The Chancellor found that defendants had been negligent in assuming, without expert advice of any kind, that Lot 5 was a suitable and safe building site.

Our discussion of defendants’ assignment I will necessarily dispose of assignments II and III.

The issue raised by assignment I goes to a purchaser’s ability to rescind a contract because of damage to a home constructed on an inappropriate soil base which, subsequent to construction and sale, was extensively damaged by a landslide of that soil.

That the doctrine of caveat emptor is fast becoming obsolete is recognized by many authorities. See Cooper v. Cordova Sand and Gravel Co., Inc., 485 S.W.2d 261 (Tenn.App.1971) and Combs v. Hurst, No. 82 Hamblen Law, Tenn.App.E.D. (filed Knoxville December 6, 1977), for comprehensive discussion of the inapplicability of caveat emptor in land-sale contracts.

However, rescission of a contract is not looked upon lightly. It is available only under the most demanding circumstances.

At 12 C.J.S. Cancellation of Instruments § 27b.(l) it states:

Where parties have apparently entered into a contract evidenced by a writing, but owing to a mistake of their minds did not meet as to all the essential elements of the transaction, so that no real contract was made by them, then a court of equity will interpose to rescind and cancel the apparent contract as written, and to restore the parties to their former positions, the rule being the same whether the instrument relates to an executory agreement or to one which has been executed. Furthermore equity will grant relief on the ground of mistake, not only when the mistake is expressly proved, but also when it is implied from the nature of the transaction. It is not essential that either party should have been guilty of fraud, (footnotes omitted) [Id. at 978. See generally King v. Dolittle, 38 Tenn. (1 Head) 77 (1858).]

At 17A C.J.S. Contracts § 418(2) it states:

In order to authorize relief for mistake the mistake generally must have been mutual, and it must have been material, and not due to the complainant’s negligence; and complainant must show injury. (footnotes omitted) [Id. at 513. See generally Wilson v. Mid-State Homes, Inc., 53 Tenn.App. 520, 384 S.W.2d 459 (1964).]

The character of a mistake allowing for a rescission of contract is discussed at 17 C.J.S. Contracts § 135:

The character of the mistake which will enable one to avoid his contract includes a mistake resulting from unconscious ignorance or forgetfulness of the existence or nonexistence of a fact material to the contract, or transaction, and a mistake which relates in a material way to the subject matter of a contemplated contract may prevent its completion as being without mutual consent. Whether a mistake concerns a thing material to the contract must of necessity depend on the facts and circumstances in the situation being considered, (footnotes omitted) [Id. at 868-69.]

This Court has applied these principles in discussing a decision in á land-sale contract in Wilson v. Mid-State Homes, Inc., supra. There, the vendees sued for rescission of an executed contract because of a mistake in the location of the home. It was on the lot next to the one described in the contract.

Judge Shriver, writing for the Court, noted:

“[u]nder a bill averring a certain state of facts as claiming rescission for fraud, the Court may deny rescission for the alleged fraud, and grant it, if the facts averred and proved justify it, on the ground of mutual innocent mistake.” Id. 384 S.W.2d at 463.

Further:

“In other words, if the defendant knew when the contract was signed that the fence behind the house was on the other man’s property and that the stake described in the contract was not the true corner, then this amounted to a misrepresentation and fraud on the complaint [sic]. On the other hand, if both the defendant and the complainants acted on the assumption that the stake referred to in the contract was the correct location of the corner and proceeded on that basis, it was a mutual mistake.
“We are convinced that the equities in this case necessitate either rescission of the contract or the awarding of damages to the complainants as the facts and circumstances will warrant.” Id. 384 S.W.2d at 464.

The case was remanded for determination on the matter of rescission.

Additional guidance is found in the recent unreported case of Combs v. Hurst, No. 82 Hamblen Law, Tenn.App.E.D. (filed Knoxville December 6, 1977). There, the complainant sought and received damages resulting from sub-standard workmanship on the house and improper compaction of the soil.

Judge Goddard, writing for the Court, said:

“It is clear in this case that an ordinary inspection by most home buyers would not have revealed the weakness inherent in this structure. The record does not indicate that the plaintiff, a truck driver by profession, had any special knowledge that would have made his inspection any more searching or meaningful than that of an ordinary buyer.” Id. at 5.

The Court affirmed the holding of the Circuit Judge, who had found:

“[t]hat Hurst, builder-vendor of the house, knew or should have known that these defects, which in the main arose after the purchase, were likely to occur and that plaintiffs were entitled to their reasonable expectations at the time of purchase.” Id. at 1.

Although the facts at hand do not rest solely on the actual fill of Lot 5, the nature and consequence of the occurrence are of such gravity that the end-result is the same. Plaintiffs purchased a home built on an improper soil base and fill which was the cause of the resulting damage.

The soil on Lot 5 is primarily made up of colluvial soil. The evidence adduced at trial from Geological Associates, Inc. explains that:

It is the nature of the colluvial soil, because of the manner by which it devel-opes, to be poorly consolidated and relatively porous. Although the shear strength of the colluvium is generally lower than that of the underlying residual soil, our experience and the laboratory data indicate that the strength of the colluvial soil varies greatly from place to place, depending primarily upon its moisture content. When the soil is relatively dry, it usually maintains a moderate degree of strength, but when saturated its shear strength is drastically reduced. Consequently, because of the colluvial soil’s high permeability, the degree of saturation and shear strength fluctuate rapidly in response to change in the moisture content.

The report goes on to state:

Although we believe that failure of the natural slope, initiated by the factors referred to above, is the major reason for distress within the lawn and the house, we also point out that portions of the house are founded on earthfill of undesirable quality. Two of our inspection trenches revealed that the earthfill placed during construction of the house was not properly densified and contains fragments of wood and other building materials.

There was adequate indication at the time of building to put defendants on their guard.

As the Chancellor recognized:

“According to the expert witnesses on both sides, the cause of the damage to the house is that a large area of land surrounding the house had started sliding down the hill. The experts were also in essential agreement that the substantial possibility of such a landslide would have been predicted by a competent soil scientist or engineer if such expert had been consulted prior to the construction. The nature of the soil (colluvial), the steepness of the slope, and the existence of springs on the ridge above the lot, were a combination of factors indicating the hazard of a landslide. The clearing of the lot, the weight of the house, and the further concentration of water on and in the ground by reason of the existence of the house, appeared to be contributing and percipitating factors that brought on the landslide.
“. . . It is a matter of common knowledge that landslides occur, that they are likely to occur on steep slopes, especially where there is a flow of water underground [sic]. It is also common knowledge that springs indicate the presence of underground water, that springs near the top of a ridge are uncommon, and that water flows downhill. These visible characteristics of the land surrounding the building site were observed by the defendants or, in the exercise of ordinary care, should have been observed by the defendants. In the opinion of the Court, the failure of the defendants, under the circumstances, to obtain expert advice was a lack of ordinary care. Under the present state of the law, as understood by this Court, the plaintiffs as purchasers from the builders were entitled to assume that the builder had taken ordinary precautions to assure that both the site and the structure were ordinarily safe and sound.”

Therefore, it is clear that the plaintiffs have shown all the elements required to qualify for rescission of this contract.

The mistake as to the safeness and soundness of the house and Lot 5 was mutual. Because of the lack of sufficient testing at the site, defendants were unaware of the dangerous nature of the colluvial soil or content of the fill. Plaintiffs, lacking any specialized construction or real estate knowledge, cannot be held to have the sophisticated knowledge required to recognize these difficulties upon a mere visual inspection of the premises. Both parties, given the state of their knowledge at the time of contracting, were acting under the assumption that the home was safe and sound, although defendants, as builders-vendors of the house, should have known of the defects existing at the time and the potentiality of future damage.

The mistake was material to the object of the contract. Plaintiffs and defendants contracted for the purchase and sale of a home which the plaintiffs were entitled to assume was ordinarily safe and sound. The end results, due td a mutual mistake of the facts at the time of contracting, is that as of this time the home is unfit for safe habitation. The plaintiffs were entitled to their reasonable expectations at the time of purchase.

The resulting damage to the home was not due to plaintiffs’ negligence and the record is replete with evidence of injury to the home and site.

Assignments I, II and III are without merit.

Defendants’ assignment of error IV is not substantiated by the record. Defendants allege that plaintiffs came into Court with unclean hands because they did not take any action to mitigate damages.

It is a well accepted axiom of equity requiring no citation that one must do equity to get equity.

Here, the record contains ample evidence of plaintiffs’ attempts to prevent damage to the house after first discovering that a problem existed.

The defendants were notified by the plaintiffs that difficulties were beginning to develop in the home. In fact, defendants came to the house and installed sump pumps under it.

On another occasion plaintiffs had guttering put on the house at their own expense after being advised to do so by the Defendant Luther W. Brooks.

Furthermore, plaintiffs incurred a $5,405.61 expense in hiring Geological Associates, Inc. to investigate the problem and recommend a solution.

Contrary to the defendants’ contention, the record shows that plaintiffs did take reasonable steps to rectify the problems occurring to the house as best they understood them.

This assignment is likewise without merit.

The judgment of the Chancellor is affirmed with costs to the defendants.

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


author: SAMUEL L. LEWIS, Special Judge.

text:
    Eddie Gilmar HAYSLETT, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 30, 1978.
    Certiorari Denied by Supreme Court May 22, 1978.

      Tom Emerson Smith, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., Dan L. Newsom, Asst. Dist. Atty. Gen., Memphis, for appellee.
   SAMUEL L. LEWIS, Special Judge.

OPINION

Appellant, Eddie Hayslett, was convicted of grand larceny and received a sentence of not less than three (3) nor more than six (6) years in the penitentiary. He has duly perfected his appeal and assigns seven (7) errors.

We summarize the evidence:

On December 16, 1975, three (3) men came into the Hill Brothers Store located on Getwell Road in Memphis. Harold Brum-mett was the only employee on duty. Two of the men went to one side of the store and the third to the other side. Mr. Brummett was assisting the two men when the third man came over, had a conversation with one of the men he had entered the store with and, as a result of the conversation, was given a piece of paper and car keys. He then went back to where he had been and, a few minutes later, Mr. Brummett saw him going out the door with something in his hand. Mr. Brummett started towards the door when the other two men ran by him and out of the store. The first man out went in one direction and the other two in the opposite direction.

Terry Brummett, who was outside the store, heard his father yell to the men to stop. He ran after them and was able to stop one.

Harold Brummett checked the safe in the store, found that he had been robbed, and called the police. When the police arrived, Terry Brummett had one of the men in custody and a description was given of the other two. One of the men had “run out of his shoes”. A man fitting the description of the one who had run out of his shoes was apprehended a short time later. He was wearing clothing that fit the description given by Mr. Brummett and, when apprehended, he was shoeless. He was identified in court by Officer J. B. Matthews as appellant.

By assignments one (1) through five (5), appellant attacks the sufficiency of the convicting evidence. He alleges there was no credible evidence of identification or culpable intent on his part.

Officer Matthews positively identified appellant as the person who was arrested and brought back to the shoe store. Other witnesses could not make an in-court identification, but they did state positively that the man brought back to the store was the man identified at that time as one of the thieves. He was identified as the same person who asked that his shoes be returned to him.

The evidence clearly shows that the appellant entered the store with the person who actually took the money. It shows there was a conversation between appellant and the man who took the money, that this man was given the car keys by the appellant or appellant’s companion, and that after the money was taken the man who took it yelled “let’s go”, and appellant then ran from the store.

The verdict of the jury approved by the trial judge accredits the witnesses for the state and resolves all conflicts in favor of the theory of the state. On appeal, the burden is on appellant to prove that the evidence preponderates in favor of his innocence and that the verdict is contrary to law. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). The evidence does not preponderate against the findings of the jury.

He next complains that the trial court erred in allowing into evidence his request that his shoes be returned to him. He “ran out of his shoes” in fleeing from the store. After he was arrested and placed in the patrol car he asked that his shoes be returned.

He makes no argument that it was an involuntary statement, that it was coerced, or that it was made before he was advised of his constitutional rights. His only contention is that the officers did not identify the appellant in court as the man who made the request.

This may be a legitimate jury argument concerning credibility but it is without merit here. In any event, he did not assign the introduction of this oral statement as error in his motion for a new trial. If there be error in the admission of this statement it has been waived. Brown v. State, 537 S.W.2d 719 (Tenn.Cr.App.1975).

His seventh, and last, assignment of error must likewise be overruled. Appellant’s attorney states that several of the jurors approached him on the street several days after the verdict and advised him they did not want to find defendant guilty but were pressured by another juror, a friend of Harold Brummett’s. The jurors would not give an affidavit and stated they did not want to get further involved. In any event, the statements made by the jurors would go only to the internal workings of the jurors’ minds or emotions and certainly is not sufficient to impeach the jury’s verdict. Montgomery v. State, 556 S.W.2d 559 (Tenn.Cr.App.), cert. denied, id. (Tenn.1977). In this instance the trial judge polled the jury both before and after taking their verdict and each stated the verdict was theirs.

All assignments are overruled.

RUSSELL, P. J., and FRED GILLIAM, Special Judge, concur.


author: DWYER, Judge.

text:
    Sylvester Antonio WILKINS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 19, 1978.

      Anthony J. Sabella, Memphis, for appellant.
    Brooks McLemore, Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Dan L. Newsom and Joseph L. Patterson, Asst. Dist. Attys. Gen., Memphis, for appel-lee.
   OPINION

DWYER, Judge.

From a conviction for committing the offense of burglary in the second degree, T.C.A. 39-903, and resulting punishment at confinement for not less than three nor more than five years, the appellant appeals and assigns error. The two assignments of error are these: (1) the evidence does not support the verdict of the jury and it preponderates in favor of the appellant’s innocence; and (2) the court erred in allowing the trial to continue in the absence of the appellant because appellant’s attorney was prevented from effectively representing appellant and appellant had a right to be present at all stages of the trial.

The evidence, as revealed from our review of the record, reflects that a burglary occurred at the residence of Michael Smith at 230 Cochran, Apartment 20, during the morning hours of February 16, 1977. The victim testified that he knew the appellant and his brother who lived in the apartment complex prior to the event date, and that appellant’s brother owned a late model blue Continental. He further testified that a stereo component set worth $600 and a leather coat worth $60 were taken. A Mr. Woods, testifying for the State, related that he was a resident of the complex and that he also knew appellant and his brother; that he observed appellant emerge from a late model blue Continental, go up the stairs to Smith’s apartment, start knocking on the door and “messing” with the doorknob, and that after awhile he entered the apartment. He then saw appellant ieave the apartment carrying a stereo component set and hand it to a second man in the car identified as appellant’s brother. Appellant went back in the apartment and this time left with two stereo speakers, got in the car with them and drove off. Mr. Woods informed the police of the incidents and supplied them with a physical description and the clothing of the two men, their names and the type of car. Subsequently, Mr. Woods identified appellant’s picture at police headquarters as the one who entered the victim’s apartment.

With the appellant not being present at the afternoon session of the trial, a court officer identified a photograph as being that of the appellant who was present in the courtroom during the morning session, and this was introduced into evidence for identification purposes. The State’s witnesses identified the photograph as being the appellant.

The uncontradicted evidence is sufficient to support this burglary in the second degree conviction. The verdict of the jury accredits the testimony of the witnesses and it is not the province of this court to reject the jury’s verdict. Edwards v. State, 540 S.W.2d 641 (Tenn.1976); McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). We think the evidence is sufficient. The first assignment is overruled.

On January 4, 1978, this matter came on a trial in Division IV of the Criminal Courts of Shelby County. The jury was voir dired, impaneled and sworn with the appellant present and represented by counsel. The trial court then adjourned the proceedings for lunch, and after the noon recess the following took place as reflected by the record in response to the court’s questions concerning the obvious absence of the appellant:

“THE COURT: All right. For the record, it’s now about 1:54, isn’t it?
“MR. NEWSOM: Yes, sir.
“THE COURT: January 4, 1978.
“MR. S ABELL A: All I can tell the Court is when we went to lunch he said something about some witnesses. I said, look,
I don’t care what you do, talk to them, but be sure they’re here before 1:30. So there’s no question that he was aware of the time.”

Following further colloquy between the court, the State’s representative, and counsel for the appellant, the court decided to proceed to try the case in appellant’s absen-tia over the objection of defense counsel. The trial proceeded with the State offering its proof and terminated with the jury bringing in a verdict the following morning finding appellant guilty of committing the offense of burglary in the second degree, with judgment entered by the trial court on that verdict.

It is appellant’s contention that the resumption of the trial in his absence denied him his basic constitutional guarantees as contained in Article I, Section 9 of the State Constitution, “. . . The right to be heard by himself” which includes the right to be present at every stage of the trial in all felony cases affecting his life or liberty. The appellant argues that he must be present during the entire trial and when the verdict is given. State v. France, 1 Tenn. 434 (1809). That this basic principle is not satisfied by the presence of counsel alone. Witt v. State, 45 Tenn. 11 (1867).

The argument is advanced and concurred in by the State that appellant’s constitutional right to be present cannot be presumed from a “silent” record and every reasonable presumption is against such a waiver. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). With the above argument we are literally in complete accord; however, we disagree that this record is silent as to appellant’s waiver of his constitutional right to be present. While we think the court was somewhat hasty in continuing the trial in absentia that afternoon without giving defense counsel or the State ample time to locate the appellant, this, however, is offset by the continuing absence of appellant on the following morning and no contest at that time as to the apparent conclusion of the trial court that the appellant’s absence was voluntary as opposed to involuntary. These facts we think support a theory of voluntary absence with an accompanying waiver of his right to be present: (1) the appellant was present when the court adjourned for lunch and ordered the resumption of the trial at 1:30; (2) that counsel informed appellant to be back at 1:30; (3) that appellant told counsel he was going to talk to witnesses, implicit in that is an awareness that the trial was going to continue; and (4) most importantly, no issue of the voluntariness of his absence was ever raised at the trial or the motion for new trial. The above enumerated facts rebuke an argument that this record is silent as to the appellant not knowingly and intelligently waiving his right to be present.

In Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), the following language may be found:

“Like the Court of Appeals, we cannot accept this position. Petitioner had no right to interrupt the trial by his voluntary absence, as he implicitly concedes by urging only that he should have been warned that no such right existed and that the trial would proceed in his absence. The right at issue is the right to be present, and the question becomes whether that right was effectively waived by his voluntary absence. Consistent with Rule 43 and Diaz [Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500] we conclude that it was. “It is wholly incredible to suggest that petitioner, who was at liberty on bail, had attended the opening session of his trial, and had a duty to be present at the trial, see Stack v. Boyle, 342 U.S. 1, 4-5, 72 S.Ct. 1, 3-4,96 L.Ed. 3 (1951), entertained any doubts about his right to be present at every stage of his trial. It seems equally incredible to us, as it did to the Court of Appeals, ‘that a defendant who flees from a courtroom in the midst of a trial — where judge, jury) witnesses and lawyers are present and ready to continue — would not know that as a consequence the trial could continue in his absence.’ 478 F.2d, at 691. Here the Court of Appeals noted that when petitioner was questioned at sentencing regarding his flight, he never contended that he was unaware that a consequence of his flight would be a continuation of the trial without him. Moreover, no issue of the voluntariness of his disappearance was ever raised.” 414 U.S., at 20, 94 S.Ct., at 196.

We further note that appellant was subsequently placed in custody by capias on January 16, 1978. His motion for a new trial was overruled on February 6,1978 and we may safely presume he was present at the hearing on the motion and that the record is entirely silent as to any issue made or advanced contending that the trial court was erroneous in concluding his absence was voluntary. The appellant should not under these circumstances be allowed at his will to stop the judicial proceedings. This assignment is accordingly overruled.

The judgment of the trial court is affirmed.

DUNCAN and BYERS, JJ., concur.