author: TITUS, Judge.

text:
    STATE of Missouri, Respondent, v. Dwain L. GARDNER, Appellant.
    Nos. 9917, 9918.
    Missouri Court of Appeals, Springfield District.
    Feb. 25, 1976.

      John C. Danforth, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.
    William H. Wendt, Springfield, for appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

On October 15, 1973, - two indictments in three counts were returned jointly charging defendant et alii with selling controlled substances (Ch. 195, V.A.M.S.) to Bill McConnell, an undercover agent for the Springfield-Greene County Narcotics Bureau. Defendant and Peggy Gardner, then cohabitants, allegedly made sales of a salt of amphetamine and cocaine, respectively, on January 17 and 29, 1973; defendant and Larry Tate were charged with a January 18, 1973, sale of heroin. At the court-tried joint trial of defendant and Peggy on the consolidated cases represented by the two indictments, it was indicated that Tate previously had been acquitted; we do not know the disposition of the charges against Peggy. The trial court found defendant guilty on all three counts, which findings had the force and effect of a jury verdict. Rule 26.01(b), V.A.M.R.; State v. Daniels, 487 S.W.2d 465, 469[4] (Mo.1972). No motion for a new trial was filed and none was needed in this court-tried case for purposes of appellate review. Civil Rule 73.01 — 2(b), V.A.M.R., is made applicable to criminal cases by Criminal Rule 28.18, V.A.M.R. State v. Bruns, 522 S.W.2d 54, 55[1] (Mo.App.1975). The court sentenced defendant to five years for selling heroin and to five years for selling cocaine, with the sentences to run consecutively; the five year sentence imposed for selling a salt of amphetamine was to run concurrently with the other two sentences.

Defendant raises four points on appeal. Two are interrelated and will be considered together. In fine, they are that the trial court erred in overruling his motions to quash and dismiss the indictments because the delay of nine months between the time of the alleged offenses and the return of the indictments deprived him of his right to a speedy trial and to due process of law as guaranteed under the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. N.B. — defendant does not complain of the period which elapsed between the return of the indictments and the time he was tried on the charges.

The delay which occurred between the charged offenses and the indictments gave rise to a claim under due process rather than under the Sixth Amendment’s guarantee of a speedy trial. United States v. Washington, 504 F.2d 346, 347[1] (8th Cir. 1974). Defendant’s right to a speedy trial under the Sixth Amendment did not come into being until the indictments were filed. “[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.” United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. York, 511 S.W.2d 758, 761[1] (Mo.1974); State v. Odzark, 532 S.W.2d 45 (Mo.App.1976). Therefore, defendant’s reliance on the Sixth Amendment to support the claim that he was denied a speedy trial because of the hiatus between the offenses and the return of the indictments is misplaced.

In Marion, the Supreme Court of the United States observed that “since a criminal trial is the likely consequence of our judgment and since appellees may claim actual prejudice to their defense, it is appropriate to note here that the statute of limitations does not fully define the appel-lees’ rights with respect to the events occurring prior to indictment. Thus, . the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. . . . However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution. . Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution. To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case.” 404 U.S. at 324-325, 92 S.Ct. at 465. In elucidation, it is said that resolution of a claim that due process has been denied because of a delayed arrest or indictment, requires “a process of balancing the reasonableness of the delay against any resultant prejudice to the defendant.” United States v. Jackson, 504 F.2d 337, 339[6] (8th Cir. 1974), cert, denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975); United States v. Norton, 504 F.2d 342, 344[1] (8th Cir. 1974), cert, denied, 419 U.S. 1113, 95 S.Ct. 790, 42 L.Ed.2d 811 (1975). “While justice should be administered with dispatch, the essential ingredient is orderly expedition and not mere speed.” Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959).

Defendant trusts Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965), and Woody v. United States, 125 U.S.App. D.C. 192, 370 F.2d 214 (1966), to serve his claim for release because of the preindictment delay. Without employing a detailed critique of those authorities as a makeweight for this writing — which any interested reader may do for himself — it is enough to recast what the court of origin has said regarding the application and limitations of Ross and Woody. “The narcotics prosecutions which have caused our concern in Ross v. United States, supra, and the dozen or more later opinions, rely fundamentally upon an identification of a defendant as a result of a single brief contact by a Government witness who, in a relatively short period of time, has participated in a substantial number of virtually identical transactions. Confining our distinction from the Ross-type case only to the facts in the present case, we observe that the nature of the Government’s proof in support of the several counts of the indictment is not of the nature that is blurred, obscured, dissipated, or destroyed by the passage of the period of time involved in this case.” Tynan v. United States, 126 U.S.App.D.C. 206, 376 F.2d 761, 763, cert, denied, 389 U.S. 845, 88 S.Ct. 95, 19 L.Ed.2d 111 (1967). Again see Marion, 404 U.S. at 317 n. 8, 92 S.Ct. at 461: “There is a unique line of cases in the District of Columbia Circuit concerning pre-indictment delay in narcotics cases where the Government relies on secret informers and (frequently) on single transactions. These cases take a more rigid stance against such delays, but they are based on the Court of Appeals’ purported supervisory jurisdiction and not on the Sixth Amendment.”

Defendant’s argument that the preindictment delay denied him due process of law wends this path: The delay was an unnecessary conscious act on the part of the state; the delay was of such a duration that defendant, even with the aid of Peggy’s memory, could not reconstruct or remember what had transpired on the dates of the alleged offenses; the evidence against defendant consisted of testimony by adverse witnesses who had no independent recall of the involved events and who were dependent on notes to refresh their recollections; and the delay could have been shortened because the usefulness of McConnell as an undercover agent was virtually exhausted after March 1973, as he had made only five “buys” after that time. In pretrial hearings, defendant asseverated that he had suffered amnesia (total in some areas and scattered in others) as the result of a May 6, 1973, vehicular accident. Indications that this claimed condition would be used to augment the alleged prejudice to him by reason of the preindictment delay have been forsaken on appeal in favor of another point to be considered anon.

Merely because the preindictment delay was admittedly a conscious act on the part of the state would not singly sustain defendant’s claim of a denial of due process. Representatives of the narcotics bureau and the prosecuting attorney presented testimony to the effect that the delay, at least in part, was necessary due to limited personnel and financial resources; it was not practical or economical to permit an undercover agent to be “burned,” i. e., publicly identified, every time a case could be made. Because of restricted manpower and money, the bureau attempted to maintain the agent’s cover until he could go as far as possible, not only with a particular subject, but in making “lateral progress” by trying to find other and more people involved in the sale of drugs. “[W]e respect the [state’s] need to keep the identity of such informants and agents confidential, both to protect their safety and to continue to use them effectively.” United States v. Jackson, supra, 504 F.2d at 340. Moreover, we can appreciate the fact that the revelation an undercover agent had been at work would quickly be disseminated to many in the community engaged in selling controlled substances. Such news would serve to deplete the effectiveness of other informants and agents, and thwart the overall efforts of the authorities to lay hold of as many sellers as possible. Thus, the process of balancing the reasonableness of the delay against any resultant prejudice to defendant cannot be concerned solely with the activities of a single agent.

Unlike the government’s witnesses in the Ross-type cases, agent McConnell’s testimony of his “buys” from defendant and the co-indictees was not steeped in remembrances blurred, obscured, dissipated or destroyed by the passage of time. McConnell had known defendant “from grade school and high school,” and had been a fellow employee of Larry Tate at a food processing plant. The agent had three separate encounters with Peggy Gardner—the first of which (as corroborated, by Peggy) was when she greeted him at the-threshold of the house where the “buys” were subsequently made with a double-barreled shotgun. Defendant’s argument that the state’s witnesses needed to resort to notes to attain any recall of the events surrounding the charged offenses, strays precariously from the truth. Note referrals were made in areas collateral to the actual “buys,” as memoranda references were employed principally to establish the sequence of handling the controlled substances as they were processed through the narcotics bureau into the possession of the crime laboratory director for analysis. McConnell’s meetings with defendant and the others indubitably outclass the agent’s single brief contacts with strangers prevalent in the Ross-type cases, and McConnell’s particularized retracings of the involved dealings attested to the accuracy of his independent reminiscences.

The evidence does not show, nor does defendant contend, that the preindictment “delay was an intentional device to gain tactical advantage over the accused.” United States v. Marion, supra, 404 U.S. at 324, 92 S.Ct. at 465. Rather, the thrust of defendant’s claim of prejudice seems centered on the assertion that the delay was so extended neither he nor Peggy (as they both so testified) was able, after a nine-month lapse, to remember the events of January 17, 18 and 29, 1973, or their averred associations with agent McConnell on the occasions in question. Of course, whether or not defendant or Peggy actually could not remember was wholly subjective to them, and it was for the trial court, sitting as a jury at the trial and as trier of the facts on the motions, to pass upon the credibility of the witnesses and the weight of the evidence. State v. Hirsch, 260 S.W. 557, 558[4] (Mo.App.1924), cert, dismissed, State ex rel. Hirsch v. Allen, 274 S.W. 353 (Mo.1925). In such capacities, the court was not bound to accept as true defendant’s or Peggy’s testimony that they could not remember. State v. Hamel, 420 S.W.2d 264, 267 (Mo.1967).

The trial court was not impressed, apparently, with the avowal that the prein-dictment delay had produced a total lack of recall on the part of defendant and Peggy, and its disbelief could have come, in part, from Peggy’s display of remembrance of the shotgun incident. The rulings on the motions to quash and dismiss the indictments indicate a finding by the trial court that the delay did not cause substantial prejudice to defendant’s rights to a fair trial. Upon review we find no error in the denial of the motions based on defendant’s due process guarantees. United States v. Ybarra, 430 F.2d 1230, 1232[1] (9th Cir. 1970), cert, denied, 400 U.S. 1023, 91 S.Ct. 589, 27 L.Ed.2d 636.

In his third point defendant says the trial court erred in failing to quash and dismiss the indictments “for the reason that [defendant] could not recall the events of the date of the alleged offenses because of an amnesia condition and therefore could not receive a fair trial or effective assistance of counsel.” More important for present purposes, however, is not what defendant claims in his point, but what he does not and never has claimed, id est, he does not claim that as a result of mental disease or defect or amnesia he lacked the capacity to understand the present proceedings against him or to assist in his own defense; he does not claim he was not responsible for the criminal conduct charged because, as a result of mental disease or defect or amnesia, he did not know or appreciate the nature, quality or wrongfulness of his alleged conduct on the dates of the averred sales of controlled substances; and he does not claim that he was incapable at any time of conforming his conduct to the requirements of the law because of any mental disease or defect or amnesia.

Defendant testified at length on the motions to quash and dismiss the indictments. His answers to questions propounded upon direct and cross-examinations and those put to him by the court, indicated clear recall in some areas and a claimed lack of recall in others. As previously indicated, defendant described his claimed amnesic condition as being “total about some things and scattered about others.” To the admittedly conclusionary declaration by defendant that he had not been able to assist counsel in preparing the defense, it was iterated that the inability to assist was limited to defendant’s lack of ability to “tell us about what happened” on the days the controlled substances were allegedly sold.

In this area, the concern of many courts is the very real danger that amnesia can be feigned easily and that discovery of proof of feigning and malingering is difficult. But consideration of that aside, if a defendant has, in fact, developed an amnesia preventing his recollection of the day or days in question, this would not constitute a defense if defendant has sufficient present ability to consult with defending counsel with a reasonable degree of rational understanding and is possessed of a factual understanding of the proceedings against him. United States v. Sullivan, 406 F.2d 180,185[2, 4] (2d Cir. 1969). Limited amnesia of the type claimed here does not totally incapacitate the defense. While defendant is entitled to a fair trial, he cannot insist upon a perfect trial. State v. McClendon, 103 Ariz. 105, 437 P.2d 421, 425, 46 A.L.R.3d 537, 543 (banc 1968). For a collection of cases considering whether amnesia may affect a defendant’s capacity to stand trial and to receive a fair trial, see Annot., 46 A.L.R.3d 544.

Defendant’s evidence of his alleged inability to remember the events occurring on the dates in question was not proof that he was incapable of knowing, understanding and appreciating the nature, quality or wrongfulness of his alleged conduct; neither did the evidence demonstrate that the amnesia, if granted, produced a lack of capacity to understand the proceedings against him or to assist counsel in his own defense. Amnesia is no bar to prosecution of an otherwise competent defendant. United States v. Stevens, 461 F.2d 317, 320[4] (7th Cir. 1972), cert, denied, 409 U.S. 948, 93 S.Ct. 292, 34 L.Ed.2d 218. Since the only form of amnesia asserted would not justify a finding of incompetency, and as defendant did not seek any sort of special competency examination or hearing, nor request findings of facts and declarations of law be made specially, the trial court was not required, sua sponte, to order such an examination, conduct such a hearing, or render specific findings and declarations. Stevens, supra, 461 F.2d at 320-321; Rules 25.06 and 26.01(b), V.A.M.R.

Defendant’s final point complains that the trial court should have sustained his motion for judgment of acquittal (Rule

26.10, V.A.M.R.) “for the reason that the State failed to prove the necessary elements of the crime for which the appellant can be charged.” This point is written in utter disregard of the mandate of Rule 84.04(d), V.A.M.R., applicable in criminal cases through the direction of Rule 28.18, V.A. M.R. State v. Vineyard, 497 S.W.2d 821, 825 (Mo.App.1973). Defendant’s point does not state the nature of “the crime for which the appellant can be charged;” but assuming the point refers to the offenses with which defendant was charged herein, it does not undertake to state “wherein” the state failed to prove the necessary elements of the charged crimes, nor “why” the elements (whatever they may be to defendant) were not proved. Defendant’s point should have precisely isolated the issues and the facts relating thereto [State v. Dennison, 428 S.W.2d 573, 579[8] (Mo.1968)] because an appellate court is not required to search either the transcript on appeal or the argument portion of the brief to discover the meaning of a point presented in conclusion-ary and abstract fashion. State v. Year-wood, 510 S.W.2d 43, 44[2] (Mo.App.1974). The point preserved nothing for review. State v. Foster, 513 S.W.2d 657, 659 (Mo.App.1974).

Nevertheless, lest defendant by his last point may have been contending the evidence was not sufficient to sustain the conviction — an area which constitutes, plain error affecting substantial rights within the meaning of Rule 27.20(c), V.A.M.R. [State v. Williams, 416 S.W.2d 71, 74[6] (Mo.1967)] —we have, ex gratia, resorted to the argument part of the brief to come by defendant’s meaning of the point. We find that rather than complaining of the sufficiency of the evidence to support the conviction, defendant contends “the State did not establish a necessary chain of evidence connecting the items taken from the [defendant] and the nature of the substance offered and admitted into evidence at trial.” From this, and after reading defendant’s entire argument on the point, it became apparent that defendant is claiming the court nisi erred in allowing the controlled substances allegedly purchased from defendant to be received in evidence without showing they were held in an unbroken chain of possession from the time they were sold by defendant until such time as they were introduced into evidence. Inasmuch as this point has not been preserved properly for review we will discuss it in summary fashion only.

We have read the transcript and find the final point without merit. The only case cited by defendant to this point is State v. Sockel, 490 S.W.2d 336, 338[1] (Mo. App.1973), where the “record discloses not one iota of evidence, documentary, oral or otherwise, to connect the findings of the laboratory with the items found in the cab with the defendant.” That was not the situation here. In the instant case there was oral and written evidence as to what was done with the substances after they were obtained from defendant, how they were packaged and marked for identification, how they were placed in evidence envelopes and initialed when passed from one agent to another, how and when they were delivered to the crime laboratory for analysis, and how they were kept until produced at trial. Granted, the agents at times could not independently recall making delivery of a particular exhibit to another agent or to the laboratory, yet the markings of the exhibits and the notations made on the evidence envelopes containing the exhibits attest to an orderly and regular procedure of custody, possession and control. We said in State v. Alderman, 498 S.W.2d 69, 72[3-6] (Mo.App.1973), “The chain of control, custody or possession requirement is to prevent alteration of or tampering with exhibits or any substitution. But it is not required that some witness must have continually kept a watch on the exhibit or retained it in his personal possession. State v. Rose, 428 S.W.2d 737, 740[2 — 3] (Mo.1968). . . . ‘“[t]he evidence need not exclude every possibility that something in the interim of [the sheriff’s] possession disturbed or interfered with the exhibit. It is sufficient if the evidence shows reasonable assurance that it was the same and in the same condition. State v. Everett, 448 S.W.2d 873, 877 (Mo.1970).”

The judgment in the consolidated cases is affirmed.

All concur.

      . As acknowledged in Marion, supra, 404 U.S. at 316 n. 8, 92 S.Ct. 455, while several courts have spoken, perhaps erroneously, of preindictment delay as involving the Sixth Amendment, the cause for dismissal has actually been based on denial of due process.

      . “The accused in the delayed arrest cases might not recall where he was or what he was doing on a specific day, but like any other person he is capable of knowing whether or not he ever was at a certain place or performed certain acts attributed to him. That he cannot recall at trial where he was at a particular time does not mean that he cannot with certainty remember, if it be true, that he was never, certainly not at a particular time, at a particular location, and that he never sold a package of drugs.” Wilson v. United States, (dissenting opinion), 129 U.S.App.D.C. 107, 391 F.2d 460, 468, n. 3 (1968).

      . Under “Points Relied On” in defendant’s brief, four points are supposedly presented. However, they are all penned in identical language. It was only through a gratuitous reading of the argument portion of the brief that we were able to ascertain that the points were actually different.


source: Caselaw Access Project

author: HENRY, Justice.

license: Public Domain

text:
    Jimmie Horn HOLLOWAY, Appellant, v. PUTNAM COUNTY, Tennessee; and Mayor and Board of Aldermen of Monterey, Tennessee, Appellees.
    Supreme Court of Tennessee.
    Feb. 9, 1976.

      Cameron & Jared, Cookeville, for appellant.
    Aron P. Thompson, Cookeville, Griffith & Stokes by Ogden Stokes, Nashville, for ap-pellees.
   OPINION

HENRY, Justice.

This is a suit to recover city and county ad valorem property taxes paid under protest. The Chancellor sustained a motion made pursuant to Rule 12.02 Tenn.R.Civ.P. and dismissed the action.

I.

Taxpayer owned certain real estate located in Monterey, Putnam County, Tennessee, which she had agreed to sell to certain individual purchasers but for the ultimate use and benefit of a Cookeville bank which contemplated its use as the site of a branch office. As a condition of the conveyance grantees demanded that all property taxes be paid. Pursuant to this demand, and in order to complete the transaction, and under an alleged “economic coercion” she paid the taxes due Monterey for the years 1936 through 1961, and Putnam County for the years 1937 through 1961. Payment was made, under protest, on 9 May 1972.

It is alleged in the complaint, filed on 2 May 1973, that on or about 16 November 1972, approximately six months after payment, the Chancery Court at Cookeville declared these taxes to be “invalid, unenforceable and uncollectible”. The complaint, however, does not contain a copy of any such decree nor is there any substantiation of this allegation.

By amendment to the complaint, it is asserted that the taxes were uncollectible because:

a. No process had ever been served on the prior owner of the property.
b. No notice had ever been published as required by Sec. 67-2001 T.C.A.
c. Collection of the taxes was barred by Sec. 67-2010 and/or 67-1326, T.C.A.
d. Defendants were guilty of laches.

The motion of the defendants, Putnam County, asserts that the suit “was filed too late, being more than thirty (30) days after taxes are paid, and more than six (6) months after taxes are paid, as provided by T.C.A. § 67-2305.” Monterey asserts the same defense but relies upon § 67 — 2313 for its 30-day suit institution rule. The Chancellor correctly treated this as a Rule 12.-02(6) motion.

II.

We are presented with an anomalous situation in that the Chancellor did not address the issue raised by the pleadings, viz., whether the suit was barred by the statute of limitations. Instead, his action in sustaining the motion to dismiss was predicated upon findings that may be summarized as follows:

a. That the taxes were assessed against plaintiff’s property; that they were unpaid; and that payment was made under protest.
b. That the complaint contained no allegation that the taxes were illegal or void — simply that they were paid under compulsion and duress.
c. That she was required to pay the taxes in order to close the sale.
d. That there was no allegation that the taxes were not due and owing to the respective defendants.
e. That there was no allegation that either defendant placed her under duress.
f. That the complaint does not specify how or why the taxes were erroneously or illegally collected.
g. That the prior decree of the court dismissed only those taxes which had not been paid at the time of the dismissal, at which time plaintiff had already paid her taxes.
h. That plaintiff did not pay the taxes under duress.

These findings by the Chancellor form the basis of the assignments in this Court, but their resolution does not reach the issues raised in the trial court and discussed in brief and oral argument before this Court. We, therefore, address these issues.

III.

The statutory remedy for the recovery of erroneous tax payments, has its origin in Chapter 44 of the Public Acts of 1873, and appears in the Code as § 67-2301 et seq., T.C.A. In its original form it was “an act to facilitate the collection of revenues” and “revenue due the state” (see caption of act), and had no application to county and city taxes. Saunders v. Russell, 78 Tenn. 293 (1882). Cities and counties were left to their common law remedies and if the tax was illegal, in the sense of being unauthorized by any law, taxpayers could pay under protest and sue for recovery. Railroad v. Williams, 101 Tenn. 146, 46 S.W. 448 (1898). The right to the pursuit of the common law remedy in cases involving county and city revenue was upheld in Prescott v. City of Memphis, 154 Tenn. 462, 285 S.W. 587 (1926). In Swift & Co. v. State, 165 Tenn. 256, 55 S.W.2d 267 (1932), this Court again held that the act of 1873 had no application to city and county revenue. See also Bell v. Clay County, 168 Tenn. 6, 73 S.W.2d 685 (1934) and State ex rel. Anderson County v. Aycock, 193 Tenn. 157, 245 S.W .2d 182 (1951).

By chapter 184 of the Public Acts of 1955, counties (but not cities) were brought within the statutory scheme, to a narrow and limited extent. This enactment now appears as the last paragraph of § 67-2301 T.C.A. and reads as follows:

The county court clerks of the various counties are also authorized and empowered to settle and adjust with taxpayers all errors and double assessments of county taxes erroneously or illegally collected by them and to direct the refunding of the same. Any claim for such refund by the county of taxes or revenue alleged to have been erroneously or illegally paid shall be filed with the county court clerk supported by proper proof within one (1) year from the date of payment, otherwise the taxpayer shall not be entitled to refund and said claim for refund shall be barred.

It was the evident purpose of this enactment to provide an efficient, expeditious and inexpensive remedy for county taxpayers who are the victims of errors and double assessments and, therefore, of taxes erroneously and illegally collected This is a permissive and alternative administrative remedy but is not mandatory or exclusive. It provides an unacceptable remedy for a taxpayer whose taxes are tainted with the illegality of wrongful assessments or any form of invalidity which may not be processed on an administrative basis. See Sea-gle-Paddoek Pools of Memphis, Inc. v. Benson, 503 S.W.2d 93 (Tenn.1973).

This is the only portion of the statutory scheme which has any relation to county revenue.

We hold that a taxpayer has two remedies for the recovery of county taxes, viz.: (1) the administrative procedure provided under § 67-2301, T.C.A. and (2) payment under protest and a common law suit for recovery. Such a suit is in the nature of an action of assumpsit for money had and received and is governed by the six-year statute of limitation as set forth in § 28-309, T.C.A. The cause of action accrues and the statute begins to run on the date of payment of taxes under protest.

We therefore, hold that as to the defendant, Putnam County, this suit is not barred by statute.

IV.

The City of Monterey is in an entirely different category.

By Chapter 324, Public Acts of 1959, cities were brought within the purview of the general statutory scheme for the recovery of erroneous tax payments. This enactment, carried into the official code as § 67-2313 provides as follows:

67-2313. Recovery of taxes paid municipalities. — The provisions of §§ 67— 2303 — 67—2308, inclusive, and of §§ 67— 2310 — 67—2312, inclusive, shall apply to the recovery of all taxes collected by any of the municipalities of this state. In order to carry out the legislative intent that all of said sections, which now apply to the recovery of state taxes erroneously paid, be conformed to apply also to the recovery of taxes erroneously paid to municipalities, the following provisions are added:
The municipal officer collecting any municipal taxes paid under protest shall pay such revenue into the municipal treasury and at the time of payment, shall give notice to the mayor and board of commissioners or other governing body of such municipality that the same were paid under protest. If it be finally determined by any court having jurisdiction of any suit brought within thirty (30) days after such payment under protest against said municipality to recover such taxes that the same were wrongfully collected as not being due from the said party to the municipality, the municipality shall refund such taxes with such interest as the court may determine to be proper, not exceeding the legal rate, and shall pay the costs of the cause. The city attorney or other legal officer of such municipality shall conduct the defense of such suit.

Section 67 — 2303 T.C.A., when conformed, applies to municipal revenue, and provides in clear and cogent language that the taxpayer

(s)hall, if he conceives the same (collection) to be unjust or illegal, or against any statute or clause of the Constitution of the state, pay the same under protest. (Emphasis supplied).
Payment was so made in this case. Section 67-2305 T.C.A. provides:
The person paying said revenue may, at any time within six (6) months after making said payment, and not longer thereafter, sue the said officer having collected said sum, for the recovery thereof.

It will be noted that § 67 — 2313 T.C.A. requires the institution of suit within thirty days. This suit, as to Monterey, brought almost one year after payment under protest, is barred under either statute, and, accordingly will be dismissed.

V.

We now return to the suit against Putnam County.

Again the record presents an anomalous and almost untenable situation. Putnam County had permitted these taxes to be outstanding and unpaid for an inexcusable period of time. The record does not show the date the delinquent tax suit was filed, but we may safely surmise that these taxes ranged from ten to thirty years overdue, evidencing gross laches on the part of the county. It would be a major miracle if a substantial portion of these taxes were not barred by § 67-1323 (providing a bar to collection of ad valorem taxes and extin-guishment of lien unless suit is instituted within six years after their accrual) and ■§ 67-1326 (providing for bar and release after ten years).

A motion under Rule 12.02(6) Tenn. R.Civ.P., is akin to a demurrer under former practice in that it admits all matters properly pleaded, and, therefore, is a test of the leading pleading. Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975).

Plaintiff alleges that by a former decree (in the delinquent tax suit):

All of said alleged unpaid taxes . were declared invalid, unenforceable and uncollectible.

In the face of a Rule 12.02(6) motion, it is the duty of the Court to construe the complaint liberally in favor of the plaintiff. Huckeby v. Spangler, 521 S.W.2d 568 (Tenn.1975). Indulging this allegation such liberality and considering it in the light of the Chancellor’s finding that the decree of October 31,1972, “dismissed only these taxes . . which remained unpaid” and that plaintiff had “already paid her taxes when the order was entered,” we must construe this to mean that had plaintiff not paid her taxes less than six months prior to this decree they would have been cancelled by the Court. We cannot permit such an injustice to stand. Upon remand this phase of the controversy will be inquired into and proper evidence will be adduced.

It is the insistence of plaintiff that she was laboring under a form of duress and paid the taxes under economic coercion. If this were the only issue before the Court, we would dispose of it on the basis of the pleadings before us; however, since this case must be remanded in the interest of justice, we remand for further consideration of the question as to whether payments were made under duress or voluntarily.

We agree with the Chancellor only as to the results he reached. The pertinent issues on remand are (1) the legality of the tax collection in the light of the then pending suit and its disposition and (2) the question of voluntary payment.

Affirmed, as to Monterey; reversed as to Putnam County and remanded.

FONES, C. J., and COOPER, HARBI-SON and BROCK, JJ., concur.


text:
    Margaret Elizabeth JOHNSON et al., Petitioners, v. Dr. H. W. FOX et al., Respondents.
    Supreme Court of Tennessee.
    Feb. 17, 1976.

      Duane S. Snodgrass, Boyd, Lauderbach & Snodgrass, Kingsport, Carl E. McAfee, Cline, McAfee, Adkins & Gillenwater, Norton, Va., for petitioners.
    J. Paul Coleman, Herndon, Coleman, Brading & McKee, Johnson City, for respondents.
   OPINION

HENRY, Justice.

We initially granted the writ of certiorari in this medical malpractice action in order to review the action of the Court of Appeals in sustaining the judgment of the trial court dismissing this suit pursuant to a motion for a directed verdict.

After hearing oral argument and considering the appropriate portion of the record we conclude that the writ was improvidently granted. The issues presented by the main controversy were of such interest and significance that they over-shadowed and caused us to overlook fatal defects in the invocation of the jurisdiction of this Court.

After the filing of the Petition for the Writ of Certiorari, respondents moved to dismiss for failure to abide the statutes of the State of Tennessee and the Rules of this Court.

We sustain the motion.

Section 27-819 T.C.A. provides, in pertinent part, that the

petition shall state the substance of the case to be decided, and shall be accompanied by assignments of error and brief in conformity with such rules as the Supreme Court may prescribe; . (Emphasis supplied)

Bule 12 of this Court, provides that the petition for certiorari

(s)hall be accompanied by an assignment of errors, predicated upon the judgment or decree of the Court of Appeals, and a brief in support thereof, in the form required Rules 14 and 15 .

Rule 14 contains the specifications for assignments of error and Rule 15 governs the format of briefs.

In this case counsel filed a petition for certiorari on the forty-fourth day after the entry of final judgment in the Court of Appeals. It was not accompanied by assignments of error or brief. Respondent moved to dismiss. As a part of their response petitioners filed a proper petition and submitted therewith assignments of error and a supporting brief. But this submission was after the expiration of the forty-five day period. No extension was applied for or granted. The assignments and brief must accompany and be filed simultaneously with the petition. Morristown v. Love, 160 Tenn. 177, 22 S.W.2d 769 (1929).

As a maximum the petition filed in this case adopts by reference the assignments filed in the Court of Appeals. This is insufficient. Rule 12 plainly mandates that the assignments be “predicated upon the judgment or decree of the Court of Appeals.” The assignments in the Court of Appeals are directed to the action of the trial court. Clearly, their adoption cannot constitute compliance with the Rules of this Court. The mere adoption of the assignments and brief in the Court of Appeals is a nullity.

The Rules of this Court are designed to provide for the orderly and expeditious determination of controversies. Perhaps the Court has been remiss in the past in not sua sponte invoking its own rules and demanding adherence thereto. This stems from a natural reluctance upon the part of the Court to invoke procedural technicalities. The result, however, has been a deterioration of the quality of petitions, briefs and assignments. The Court, in the future, will demand that the plain provisions of its Rules be abided and will look with disfavor upon any substantial deviation.

In the instant case we are faced with a motion to dismiss the petition. In good conscience the Court has no honorable choice but to apply its own rules.

We concur in the results reached by the Court of Appeals but are not in full accord with its reasoning. We do not necessarily agree with the “locality” rule in malpractice cases and we are particularly not in accord with the dicta contained in the opinion on petition to rehear with respect to a suggested difference in the standard of care between Johnson City and Greeneville. We are not prepared to say that thirty miles plus a population variance would indicate a permissible difference in the standard of care. For these reasons we do not look with favor upon the publication of the opinion of the Court of Appeals.

The petition for the writ of certiorari is

DISMISSED.

FONES, C. J., and COOPER, HARBI-SON and BROCK, JJ., concurring.


author: FONES, Chief Justice.

text:
    CITIES SERVICE COMPANY, Appellant-Appellee, v. George M. TIDWELL, Commissioner of Revenue, State of Tennessee, Appellee-Appellant.
    Supreme Court of Tennessee.
    Feb. 23, 1976.

      J. W. Mills, Frantz, McConnell & Seymour, Knoxville, James C. Gooch and T. G. Pappas, Bass, Berry & Sims, Nashville, for appellant-appellee.
    R. A. Ashley, Jr., Atty. Gen., Everett H. Falk, Asst. Atty. Gen., Nashville, for appel-lee-appellant.
   OPINION

FONES, Chief Justice.

Cities Service Company, as plaintiff, sued the Commissioner of Revenue to recover sales taxes, penalty and interest, paid under protest, levied upon engineering, design, procurement and administrative services rendered by Parsons-Jurden Corporation incident to the purchase of industrial machinery from others. Recovery was also sought of penalties assessed upon sales and use taxes, the validity of which is admitted, but, it is said, the equities demand remission of the penalties.

The Chancellor held that the services of Parsons-Jurden Corporation were not subject to the sales or use tax, but that the penalties contested were properly assessed. Both parties perfected direct appeals to this Court from that portion of the Chancellor’s decree adverse to their respective contentions.

In 1969, plaintiff entered into a contract with Parsons-Jurden Corporation, as general ■ contractor, to perform a multi-million dollar expansion of plaintiff’s copper processing plant in Copperhill, Tennessee. The clause in the contract containing the general description of the work provided, in part, that:

“The work . . . shall consist of the engineering, procurement, construction, management and start-up assistance and all other associated services necessary for the expansion of owner’s existing facilities . . . .”

All of the on-site construction work and installation of industrial machinery was subcontracted by Parsons-Jurden Corporation to the Ralph M. Parsons Company. Parsons-Jurden retained the engineering, design, procurement, administrative and management services, and it is undisputed that all of these services were performed in its offices in New York, California and Germany.

Representatives of plaintiff met with officials of the Department of Revenue, Sales and Use Tax Division, to discuss the sales and use tax responsibilities of the owner, contractors and sub-contractors. As a result of the meeting, certain bank accounts were established for various specific purposes to assist both the taxpayer and the State in determining the correct tax. Insofar as this litigation is concerned, the significant understanding between the plaintiff and the Department of Revenue is confirmed in a letter dated March 5,1970, from a staff attorney at the Department of Revenue to plaintiff’s lawyer. The substance of the letter was that if all purchase orders issued by Parsons-Jurden Corporation for industrial machinery contained the legend, hereinafter set forth, Parsons-Jurden Corporation could place orders for the machinery and install it at the Copperhill location and no tax on the cost of installation would be due.

“It is understood and agreed that this order is entered into by Parsons-Jurden Corporation (“Company”) for and on behalf of Cities Service Company (“Owner”); that title to all machinery, equipment or supplies furnished hereunder by the Vendor shall pass directly from the Vendor to the Owner; that Company will make payment out of a special account established by Owner for this order; and this sale is one to Owner and Vendor shall look only to Owner for payment.”

No contention is made by the Commissioner that this procedure was not followed to the letter with respect to every purchase involved in this litigation.

A vice-president of Parsons-Jurden Corporation testified with respect to the procedure followed in purchasing industrial machinery on behalf of plaintiff:

“A Acting as agents for Cities Service in accordance with the statement that appears on the second page of this letter of March 5, 1970. We did go out for competitive bids, which were analyzed and eventually purchase recommendations were made to our client. The client would then either approve or change our recommendation and so advise us. We would then issue a purchase order to the successful vendor and request that he furnish the equipment in accordance with the purchase document. We as agent signed that document. We then, after the material was completed in the vendor’s shops, it was shipped to the jobsite. Upon receipt of an invoice for that equipment from the vendor we had a special construction account in the name of Cities Service Company, and a check was drawn by us in the amount specified on the invoice. That cheek was delivered to the Cities Service Company, who signed the check. The check was a Cities Service check and we passed that check on to the vendor after signature by the client.”

Later, he described design function with respect to the iron roasting plant, which was typical of several units involved in the additions to the Copperhill complex.

“A The copper roasting plant is made up of a substantial amount of equipment. When we set out with a flow sheet we prepare the equipment lists. We as an engineering firm know what we’re looking for so we prepare specifications; however, we must go to additional people, such as vendors of equipment, with our specifications, from which they then manufacture a component of the plant. The information we give these people and they are specialists, let’s take the case of the iron roaster, they are specialists in design of the iron roaster, so they design and fabricate it and ship it, say to the jobsite. Now in the case of an iron roaster, in this particular plant these roasters are approximately 40 feet in diameter and some 75 or 80 feet high, so they can’t be shipped as one piece. They are fabricated and assembled in sections and we depend — in the iron roasting plant we have purchase orders for the roasting plant and we have purchase orders for the waste heat boilers, we have purchase orders for the gas, for the separation equipment, and pumps, various things that are associated with the complete plant. We do the conception of it and we depend upon the vendors to furnish the detail design for each piece that goes into that.”

The witness testified that Parsons-Jurden Corporation performed no installation, construction or fabricating work, having no facilities or personnel to do so.

Plaintiff obtained an authorization to purchase industrial machinery and a use tax of one (1%) percent was paid on the sales price shown on all invoices of the vendors.

Prior to May 6, 1971, T.C.A. § 67-3002(c)4(6) provided as follows:

“4. ‘Retail sale,’ ‘sale at retail,’ and ‘retail sales price’ shall include the following services:
(6) The installing of tangible personal property as an incident to the sale thereof, where a charge is made for such installation.”

Effective May 6, 1971, subsection (6) of T.C.A. § 67 — 3002(c)4(6) was amended to provide as follows:

“(6) The installing of tangible personal property which remains tangible personal property after installation where a charge is made for such installation whether or not such installation is made as an incident to the sale thereof and whether or not any tangible personal property is transferred in conjunction with such installation service.”

Beginning in June, 1972, an initial audit was made of the plaintiff’s books and records as a result of which a deficiency was assessed in the sum of $521,422, tax, penalty and interest. This deficiency included tax upon the engineering, design, procurement and administrative services of Parsons-Jurden Corporation rendered subsequent to May 6, 1971, and other items.

Following the initial audit report, upon which the assessment of $521,422 was made, an additional audit was conducted wherein the out-of-state engineering, design, procurement and administrative services of Parsons-Jurden that occurred prior to May 6, 1971, were subjected to taxation. That audit resulted in the imposition of tax, penalties and interest in the sum of $135,365.

By written stipulation signed by'the parties and filed in the cause, it was agreed, among other things that the activities of Parsons-Jurden Corporation at its out-of-state offices, (1) did not constitute the “installing of personnel property” within the meaning of T.C.A. § 67-3002(c)4(6); (2) did not constitute “taxable installation labor” within the meaning of T.C.A. § 67-30Q2(n); and (3) did not constitute the “manufacturing producing, compounding or severing from the earth” of tangible personal property to be erected or applied, within the meaning of T.C.A. § 67-3004.

Further, it was stipulated that at a meeting of plaintiff’s and defendant’s representatives in August, 1972, defendant informed plaintiff that it had included Parsons-Jur-den’s out-of-state activities subsequent to May 6,1971, in the deficiency assessment of $521,422, and that a supplemental audit would be conducted for the purpose of subjecting to taxation the cost of Parsons-Jur-den’s services incurred prior to May 6, 1971, . . on the theory that said costs were part of the cost of the personal property purchased by plaintiff.”

I.

The supplemental audit was made resulting in an additional assessment of $135,365 in taxes, penalty and interest, the recovery of which plaintiff seeks in this suit.

At the time defendant filed his answer in the Chancery Court, the Services of Parsons-Jurden were said to be taxable because they “. . . could be properly

classified as fabrication charges or other costs adding value to the property on the books and records of plaintiff.” Defendant’s two (2) assignments of error are as follows:

“1. The Chancellor erred in determining that the engineering and design work of Parsons-Jurden Corporation could not be incorporated in the sales price of the industrial machinery, even though the ideas, genius and skill of Par sons-Jurden Corporation may have been incorporated in the end product.
2. The Chancellor erred in failing to distinguish between the ‘industrial machinery' which was designed and engineered by Parsons-Jurden Corporation and the individual component machines which made up the industrial machinery, with the result that the design and engineering work done by Par sons-Jurden Corporation in connection with the fabrication of industrial machinery was excluded from the sales and use tax base for the sale or use of industrial machinery, contrary to the Tennessee sales and use tax statutes.”

The argument in support of the assignments of error is, in substance, that Parsons-Jurden engineering and design skill has transformed the many units of industrial machinery purchased from third party vendors, into several industrial complexes or units, each performing á particular function in the overall Copper hill operation; that these massive collections of industrial machinery which may be identified as an ore crushing plant, a pelletizing plant, etc. is the basic unit for sales tax purposes and that plaintiff’s tax must be measured by the costs of the individual items of machinery plus the out-of-state charges for engineering and design performed by Parsons-Jurden Corporation, because, in the end, its skills produced an operating facility that extracts metals from ores.

In the jungle of verbiage that characterizes sales and use tax statutes it must not be forgotten that the privilege taxed is that of selling at retail tangible personal property in this state or the use or consumption, in this state, of any item or article of tangible personal property as defined in Chapter 30, Title 67 of the Code.

A “retail sale” includes only six categories of sérvices expressly listed in T.C.A. § 67-3002(c)4, subsections one through six.

Defendant has stipulated that the services of Par sons-Jurden Corporation did not constitute the installing of personal property within the meaning of T.C.A. § 67-3002(c)4(6), and the other five categories of services declared to constitute retail sales are wholly foreign to the character of services involved in this litigation.

If Parsons-Jurden Corporation was the seller of the industrial machinery manufactured and sold by Westinghouse, Allis-Chalmers, and other vendors, we would be confronted with the mixed sale of tangible personal property and the performance of services, a situation that has spawned much litigation with widely varying results. See Goodyear'Aircraft Corp. v. Arizona State Tax Com’n., 1 Ariz.App. 302, 402 P.2d 423 (1965) and State of Alabama v. Natco Corporation, 265 Ala. 184, 90 So.2d 385 (1956). Instead, we have in this case sales of tangible personal property to plaintiff by sellers who rendered no services and, as an entirely separate transaction, the rendering of services to plaintiff by a non-vendor.

Before this Court, the only statutory provision relied upon by defendant is the definition of “sales price” found in T.C.A. § 67-3002(d), providing in part that:

“(d) ‘Sales price’ means the total amount for which tangible personal property is sold, including any services that are a part of the sale, valued in money, whether paid in money or otherwise, and includes any amount for which credit is given to the purchaser by the seller, without any deduction therefrom on account of the cost of the property sold, the cost of materials used, labor or service costs, losses, or any other expense whatsoever

In our opinion, the services included in the above definition are limited to services rendered by the seller, as a part of the sale to the purchaser. They do not embrace services rendered by a third party to the sale.

Defendant seeks support of his theory in the case of Crescent Amusement Company v. Carson, 187 Tenn. 112, 213 S.W.2d 27 (1948). In Crescent Amusement, the taxpayers were operators of moving picture theaters who rented from a producer, film prints to exhibit for a definite time and a specified number of shows. The issue was whether such transaction was a rental of tangible personal property within the meaning of the sales tax law; and, if so, whether the tax was to be measured by the amount of the rental paid to the producer or by the cost of the physical material in the film print.

The taxpayer’s insistence that the privilege of exhibiting a copyrighted film production was the exercise of an intangible property right was rejected.

In passing on the issue of the measure of the tax, the Court made the following observations:

“There is scarcely to be found any article susceptible to sale or rent that is not the result of an idea, genius, skill and labor applied to a physical substance. A loaf of bread is the result of the skill and labor of the cook who mixed the physical ingredients and applied heat at the temperature and consistency her judgment dictated. A radio is the result of the thought of a genius, or several such persons, combined with the skill and labor of trained technicians applied to a tangible mass of substance. An automobile is the result of all these elements, and of patents, etc.; and so on, ad infinitum. If these elements should be separated from the finished product and the sales tax applied only to the cost of the raw material, the sales tax act would, for all practical purposes, be entirely destroyed. The material used in the making of a phonograph record probably costs only a few cents. The voice of a Caruso recorded thereon makes it sell for perhaps a dollar. To measure the sales tax only by the value of the physical material in this phonograph record is to apply an impossible formula.” 187 Tenn. at 116, 117, 213 S.W.2d at 29.

It is no doubt true that every piece of industrial machinery purchased by plaintiff in this case had incorporated therein the ideas, skill and labor and perhaps genius of one or more persons, but there is no showing in this record that any piece of industrial machinery purchased by plaintiff was the product of raw materials plus the idea, genius, skill and labor of Parsons-Jurden Corporation.

The engineering and design skills, patents, etc. of persons in the employ or under the egis of manufacturers of industrial machinery such as Westinghouse and Allis-Chalmers were applied directly to a tangible mass of substance to produce the items of machinery purchased by plaintiff in this suit. The value of those skills was undoubtedly reflected in the invoice prices paid said manufacturers and the tax thereon has been paid.

The services rendered by Parsons-Jurden were not rendered in the fabrication or processing of any of the units of industrial machinery taxable in this case, and it is so stipulated by defendant.

II.

Plaintiff insists that the equities demand remission of penalties assessed in the total sum of $89,131.

First, with respect to a penalty of $50,741 attributable to the tax on job site installation labor incurred subsequent to May 6, 1971, plaintiff contends that its failure to pay the tax timely is attributable to reliance upon the express advice of the Department of Revenue and the confusing and misleading nature of the law.

The advice referred to was contained in the letter of March 5, 1970, to the effect that no tax would be due on installation costs, if the procedure described therein was followed. Implicit in plaintiff’s position is the lack of actual knowledge that the Legislature amended T.C.A. § 67-3002(c)4(6) expanding the tax liability for installation costs effective May 6,1971, creating a liability for such costs that did not exist under the prior law, as confirmed by the letter of March 5, 1970.

Next, plaintiff directs our attention to a letter dated January 13, 1972, from W. J. Owens, Director of the Sales and Use Tax Division of the Department of Revenue to plaintiff advising that said code section had been amended and the express language of the new subsection was quoted. The letter concluded with the statement that the amendment was brought to the attention of the plaintiff, “. . .on the chance that your tax advisors may have overlooked this important change in the law as it applies to your undertaking at Copperhill.”

Plaintiff finds fault with Mr. Owens’ letter in that it is said he omitted the one sentence that would have clarified the situation; to wit, that the prior arrangement approved in the letter of March 5, 1970, no longer relieved Cities Service from the obligation to pay taxes on the installation charges. This omission is §aid to have unintentionally misled taxpayer in a manner comparable to the case of Tidwell v. Goodyear Tire & Rubber Co., 520 S.W.2d 721 (Tenn.1975), wherein this Court granted equitable relief from a sales and use tax penalty.

It is clear that in this case plaintiff’s failure to keep abreast of the Tennessee Sales and Use Tax Law was the cause of the late payment of use taxes on installation costs. That failure on the part of the plaintiff cannot be laid at the door of the Department of Revenue based on either or both of the two letters. The March, 1970 letter was based on the law as it existed at that time and no principle of law or equity justifies reliance upon its efficacy after a change in that law. The Legislature’s law making power and taxing authority cannot be thwarted in that manner.

This Court held in Swartz v. Atkins, 204 Tenn. 23, 315 S.W.2d 393 (1958) that it was the intention of the Legislature in assessing the five (5%) percent penalty to make it apply in any instance where the taxpayer had failed to make his return and make the payments on time. The issue in the case is the five (5%) percent penalty not the fifty (50%) percent penalty. The good faith of the taxpayer is not in question and we agree with plaintiff’s assertion that there is no evidence whatever of bad faith on its part. However, where it is shown that payment of the tax was not made within the time required by the statute the five (5%) percent penalty must be assessed. The equitable relief of remission of the penalty can only be granted upon a showing of good and reasonable cause falling within the four (4) guidelines approved in Benson v. United States Steel Gorp., 225 Tenn. 164, 465 S.W.2d 124 (1971), and Tidwell v. Goodyear Tire & Rubber Co., supra.

In our opinion the factual situation here is analogous to that in Swartz v. Atkins, supra, and must be denied for the same reasons stated by Mr. Justice Burnett therein.

“In the cafe before us what are the equities? The only equities are the want of knowledge or acquaintance with the laws of this State insofar as they are applied to the duty of this taxpayer to make a return and pay the taxes. This taxpayer was familiar with the sales tax law and he avers that he had been paying sales taxes on time. By reading a little further or upon consulting counsel it would have been found by him, with the greatest of ease, that the taxes were due when he placed his machines on location as he did herein.
If the complaint or reason advanced by the taxpayer of ignorance would be sufficient to excuse the payment of this tax demanded then every taxpayer could very easily use the same excuse and honestly do so. All he would have to do would be to fail to read the papers of the Acts or to consult his counsel or to talk to individuals then he could say that he was honestly unaware that there was a tax on this or that act. The law does not recognize such an excuse as an equity in favor of relieving a taxpayer of his obligation when by the slightest investigation or inquiry these things, that is taxes, could have been determined.” 204 Tenn. at 28, 315 S.W.2d at 395.

Plaintiff contends that the balance of the penalty in the sum of $38,380 was attributable to the failure of the Parsons Companies to follow written instructions of plaintiff with respect to accounting procedures. In essence, plaintiff asserts that the Parsons Companies failed to timely report the purchase and accrual of tax liability on certain items of tangible personal property, and as a result, through no fault of its own, the taxes thereon were paid after the due date.

Plaintiff contends that the evidence clearly shows that Parsons-Jurden and the Ralph M. Parsons Company were responsible for providing plaintiff with a monthly report showing the items of tangible personal property purchased during the month, and the use taxes due thereon; and that plaintiff used this report to prepare its monthly sales and use tax report to the Department of Revenue. Plaintiff further insists that it had no reason to doubt or question the accuracy of the monthly reports of these contractors. Further plaintiff points to the fact that it went to great length to establish and follow proper procedures for the payment of sales and use taxes to the State of Tennessee.

It is urged that these circumstances justify relief under the following guideline, one of four, approved by Benson v. U. S. Steel Corp., supra, Tidwell v. Goodyear Tire & Rubber Co., supra, the deficiency resulted from a reliance by the taxpayer upon factual misrepresentation made by persons with whom he dealt in the course of his business, the taxpayer having no reason to doubt or question such misrepresentation.

We do not agree that the failure of plaintiff’s contractors to fully or timely include in its monthly reports every item of tangible personal property upon which tax liability had accrued, falls within the category of factual misrepresentation. There is certainly no evidence in the record that the parties with whom plaintiff contracted purposely, fraudulently, or even negligently failed in the respect stated. The testimony in the record is simply to the effect that it was not the fault of the plaintiff. Further, Parsons-Jurden and the Ralph M. Parsons Company were acting as agents of the plaintiff in purchasing the tangible personal property involved and in preparing the monthly report of said purchases to plaintiff. We think this issue is comparable to the case of Combustion Engineering Company v. MacFarland, 209 Tenn. 75, 349 S.W.2d 138 (1961) wherein errors and oversights of various record keepers and accountants of the taxpayer, and failures and omissions of an independent company employed to install an IBM machine were responsible for taxpayers failure to pay sales and use taxes when due.

We have carefully examined all of the authorities relied upon by plaintiff, especially Tidwell v. Goodyear Tire & Rubber Go., supra, and we are unable to find any ground upon which relief may be granted in this case.

The decree of the Chancellor is affirmed. Costs of this appeal are divided equally between the parties.

COOPER, HENRY and HARBISON, JJ., and INMAN, Special Justice, concur.


author: BROCK, Justice.

text:
    FOREST PRODUCTS, DIVISION OF the LUDLOW CORPORATION, Appellant, v. Rita COLLINS, Appellee.
    Supreme Court of Tennessee.
    March 1,' 1976.

      Clinton R. Anderson, Anderson & Anderson; Morristown, for appellant.
    Gary E. Brewer, Edward R. Sempkowski, Morristown, for appellee.
   OPINION

BROCK, Justice.

This is an action to recover benefits under the Workmen’s Compensation Laws. The parties will be referred to as they appeared below. The trial court awarded benefits for 16 weeks of temporary total disability, compensation for 25 percent permanent partial disability of the body as a whole, and recovery of medical expenses incurred in treatment of the injury. The employer has appealed and contends (1) that it is not liable for the medical expenses because the plaintiff sought treatment by physicians of her own choosing rather than by the “company physicians”; (2) that it is not liable for any compensation for either temporary or permanent disability because, so it alleges, the disability, if any, suffered by the plaintiff did not result directly from the injury but from the treatment and surgery performed by physicians and surgeons of her own choosing; and (3) the testimony most favorable to the plaintiff upon the issue of extent of disability is that she suffers a 10 percent permanent partial disability of the body as a whole, so that, there is no evidence to support the award of the trial court allowing benefits for 25 percent permanent partial disability of the body as a whole.

There is abundant evidence in the record to support the finding of the trial court that the plaintiff injured her back on June 18, 1974, while lifting “case sidings” which were rather heavy; that she reported this injury to the employer’s nurse for first aid treatment; that this nurse referred her to Dr. Jose L. Wee Eng; that the plaintiff reported as directed to Dr. Wee Eng and that he made a rather cursory examination of her on June 19, 1974, at the conclusion of which he announced that he found nothing wrong with her and told her to return to work the next day, June 20, 1974; that plaintiff continued to suffer pain in her back which caused her to seek further treatment on the following Friday when she was examined by Dr. Andrews, her family physician, who admitted her to a hospital and called in Dr. Gutch, an orthopedic surgeon, for consultation; that she was hospitalized from June 24, 1974, to June 29, 1974, and again from August 12, 1974, to August 21, 1974; that Dr. Gutch performed a myelogram examination on or about August 14, 1974, which had positive results and that he performed an exploratory laminectomy on August 15, 1974, which disclosed an inflamed and swollen nerve root; and that the nerve root injury was the result of the injury suffered by the plaintiff on June 18, 1974.

Dr. Wee Eng did not testify but a written statement signed by him was introduced in evidence by stipulation, and in it he agrees that he directed the plaintiff to return to work on the following day, June 20, 1974. He further states that he advised the plaintiff to return to his office in one week if the pain persisted and that she did not return, but did call to say that she wanted to see her own personal physician, “which was all right with” him. The plaintiff in her testimony directly contradicted the statement of Dr. Wee Eng that he advised her to return in one week for further treatment. The trial judge resolved this conflict in favor of the plaintiff and we are not authorized to do otherwise.

We are of the opinion that there is adequate evidence to support the finding of the trial court that the employer is liable for the medical expenses in issue. T.C.A. § 50-1004 provides:

“. . . the employer . . . shall furnish free of charge to the employee such medical and surgical treatment, medicine . . . and hospitalization, . as may be reasonably required . . The injured employee shall accept the medical benefits afforded hereunder; provided, that the employer shall designate a group of three or more reputable physicians or surgeons from which the injured employee shall have the privilege of selecting the operating surgeon or the attending physician;

In holding that the employer was liable for medical expenses incurred for treatment by physicians of the employee’s own choosing, this Court in Employers Insurance of Wau-sau v. Carter, 522 S.W.2d 174, 176 (Tenn. 1975) said:

“Referring the employee to a single physician does not comply with the statute; it is an usurpation of the privilege of the employee to choose the ultimate treating physician. See: Holston Valley Community Hospital v. Dykes, 205 Tenn. 336, 326 S.W.2d 486 (1959). An employer who would claim the benefits of the statute should, himself, be required to comply with it. Likewise, the employee must comply with this statute if he is to be entitled to receive its benefits.”

In the case at bar, we are of the opinion that the employee acted reasonably in seeking medical treatment of her own choice since the employer failed to tender to her a panel of three physicians from which to choose one, but, instead, referred her to a single “company doctor” who, after examination, dismissed her and directed her to return to work. We, therefore, hold that the employer is liable for the expenses incurred by the plaintiff in seeking necessary and proper medical treatment of her injury. Employers Insurance of Wausau v. Carter, supra; Holston Valley Community Hospital v. Dykes, supra; Atlas Powder Company v. Grimes, 200 Tenn. 206, 292 S.W.2d 13 (1956); Atlas Powder Company v. Grant, 200 Tenn. 617, 293 S.W.2d 180 (1956). There is not the slightest suggestion in the evidence or in the argument and brief of counsel that the expenses in question were not for necessary or proper medical attention.

The insistence of the employer that the disability suffered by the plaintiff resulted from the surgery performed by Dr. Gutch rather than directly from the injury sustained on June 18, 1974, is not sustained by the record. The trial court, both in its oral findings announced at the conclusion of the hearing and later in the final decree, found that the plaintiff’s disability resulted from the June 18,1974, injury. Apparently the attorneys for both parties have placed a construction upon certain testimony by Dr. Gutch which we find to be unwarranted. We quote the testimony in question:

“Q. Now, doctor, based on the history you took from Mrs. Collins, you know, the examination and the exploratory surgery that you performed, would it be your professional opinion that the competent producing cause of Mrs. Collins’ back problem was directly related to an injury which she sustained at work sometime back in June?
“A. As I explained, with a history that an individual does a great deal of lifting, twisting, and backbending could cause the irritation that was seen in Mrs. Collins so, therefore, there would be a relationship to her condition as she related to us from the history.
“Q. Dr. Gutch, do you anticipate whether or not Mrs. Collins will have any permanent residual disability as a result of this back problem she had been having?
“A. I rated her as a 10 percent permanent disability to her body as a whole as a result of the exploratory laminectomy.
“Q. Okay, and would that be a clinical or functional disability, doctor?
“A. I would rate that as a functional rating.”

It is our opinion that the clause in question, that is, “. . . as a result of the exploratory laminectomy,” refers to the basis for the doctor’s rating rather than to the cause of plaintiff’s disability. But, if it were intended to have the meaning placed upon it by counsel for the employer, we, nevertheless, are of the opinion that the plaintiff’s disability is one for which the employer is liable under the Workmen’s Compensation Laws. This Court is committed to the rule that when, without the fault of the employee, his original compensable injury is aggravated by medical or surgical treatment of it, there is such a causal connection between the original injury and the resulting disability or death that they are compensable, whether such medical or surgical treatment be skillful or negligent, at least if the physician or surgeon has been furnished by the employer or its insurer. Whitaker v. Morton Frozen Foods, Inc., 201 Tenn. 425, 300 S.W.2d 610 (Tenn.1957); The Fidelity & Casualty Company of New York v. Roberts, 198 Tenn. 386, 280 S.W.2d 918 (1955). We conclude that the result should be the same when the physician or surgeon has been selected by the employee, provided the employee was justified in making his own selection of the physician or surgeon by the failure of the employer to comply with the provisions of T.C.A. § 50-1004 in providing proper medical care. Fitzpatrick v. The Fidelity & Casualty Company of New York, 7 Cal.2d 230, 60 P.2d 276 (1936).

Finally, we find adequate evidence in the record to support the finding of the trial court that the plaintiff has sustained a 25 percent permanent partial disability of the body as a whole. Dr. Gutch not only estimated her permanent disability as 10 percent of the body as a whole but he also testified that it would be inadvisable for her to engage in employment which required heavy lifting, back-bending or twisting. In determining the amount of disability suffered by an injured employee, the trial court considers all the evidence and is not restricted to the precise estimate of disability made by a medical witness. Crane Enamel Company v. Jami-son, 188 Tenn. 211, 217 S.W.2d 945 (1948); Ferguson v. Tennessee-Carolina Transportation Company, 221 Tenn. 557, 428 S.W.2d 783 (1968).

Accordingly, we affirm the judgment of the trial court and adjudge the costs incurred in this Court against the appellant.

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


author: COOPER, Justice.

text:
    STATE of Tennessee ex rel. Zelda FINGER et al., Appellants, v. Frank M. KIDD, Appellee.
    Supreme Court of Tennessee.
    March 1, 1976.

      Charles Hampton White, Cornelius, Collins, Higgins & White, Nashville, for appellants.
    Hubert D. Patty, Maryville, for appellee.
   OPINION

COOPER, Justice.

This is an appeal from a decree dismissing an ouster suit. Appellants, citizens of Blount County, brought an action in the chancery court seeking to oust appellee, Frank M. Kidd, as a member of the Quarterly County Court of Blount County. Appellants charged that appellee violated the conflict of interest statute, T.C.A. 12-401, by serving as a member of the quarterly county court while employed by the Blount County Board of Education as a supervisor of instruction. T.C.A. 12-401 provides that:

“[i]t shall not be lawful for any officer, committeeman, director, or other person . whose duty it is to vote for, let out, overlook, or in any manner to superintend, any work or any contract in which any municipal corporation, county, or the state, shall or may be interested, to be directly or indirectly interested in any such contract.”

Iii dismissing the action, the chancellor found that the appellee, in his capacity as supervisor of instruction, was a teacher and could properly serve as a member of the Blount County Quarterly Court under the express provision of T.C.A. 49-217. That section, prior to being amended in 1975, provided as follows:

“49-217. Adverse interest of board members and justices prohibited. — No member of the local board of education or of the quarterly county court shall take or make, as the adverse party, any contract which his board is competent to make, nor shall he become the owner of a school warrant, except for his compensation as provided by this title; provided, that nothing in this title shall prevent any member of the quarterly county court from entering into a contract with said board to teach any of the schools coming under the provisions of this title. (emphasis supplied)

In describing his duties as a supervisor of instruction, appellee pointed out that a supervisor of instruction, like a classroom teacher, is appointed by the Blount County Board of Education and not by the Quarterly County Court. Similarly, the salaries of both the supervisor of instruction and the classroom teacher are determined solely by the Board of Education. Furthermore the evidence shows that the supervisor of instruction is a certificated teacher and his duties include classroom teaching. As stated by appellee:

“A great deal of my time, sir, is spent what I would call, trouble-shooting, in trying to work with personnel problems relating to students, teachers; I spend time on curriculum development; I spend time observing classrooms, teachers in the classroom. I make suggestions, comments, I sometimes take over classrooms for teachers in times of giving achievement tests and times when we have several principals who do not — who need time out of their classrooms to do classroom observation in order to perform teacher evaluation, I sometimes take classrooms for that purpose. I sometimes take classrooms in order to teach a sample lesson for beginning teachers. I spend some time in the office working with various forms, preliminary reports, the annual statistical report, curriculum report — I’d say that sums up what I do.”

We agree with the chancellor that a supervisor of instruction, with duties as described above, is a teacher within the ambit of T.C.A. 49-217 and is competent to serve both as a teacher and a member of a quarterly county court. See T.C.A. 49 — 1401. But more importantly, under the evidence in this record we see no material conflict between appellee’s service for the County Board of Education and his service as a member of the quarterly county court, even if appellee could not be classed as a teacher. In State ex rel. Boles v. Groce, 152 Tenn. 566, 280 S.W. 27 (1925), wherein it was held that a justice of the peace concurrently employed by a board of education as a teacher was not in violation of the conflict of interest statute, this court reasoned that:

“The county board of education is a separate and distinct entity from that of the county court, created by the state, with well defined powers and duties, over which the county court has no supervisory jurisdiction. Hence the county court had nothing to do with the letting of this contract, or the manner of its performance, and the relator, as a member of the county court, did not contract with himself.
“We are unable to see how a county can be injured or imposed upon, where the board of education employs a person to teach in its schools who is competent and otherwise qualified, simply because he happens to be a justice of the peace of the county.” 152 Tenn. at 570, 280 S.W. at 28. '

We find this reasoning persuasive and applicable to appellee.

T.C.A. 49-217, under which appellee’s contract with the county board of education was authorized, was amended by Chapter 11 of the Public Acts of 1975, effective April 3, 1975. The amendment broadens the areas of employment open to contract between a member of the quarterly county court and the county board of education to include “any job or post filled by that board.” Appellants insist in their second assignment of error, as they did in the trial court, that the amendment is unconstitutional. The chancellor, being of the opinion that a determination of the constitutionality of the 1975 amendment was not necessary to a decision in this case, consequently, pretermitted the issue. We concur in his action.

The decree of the chancellor is affirmed. Costs are adjudged against appellants.

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