text:
    Mary HOLLAND, Administratrix of the Estate of Frank Holland, Deceased, Plaintiff-Appellant, v. Gordon DUCKWORTH, Defendant-Respondent.
    No. 9874.
    Missouri Court of Appeals, Springfield District.
    July 22, 1976.

      Stephen R. Sharp, Welman & Associates, Kennett, for plaintiff-appellant.
    Byron D. Luber, Ward & Reeves, Caruth-ersville, for defendant-respondent.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Plaintiff Mary Holland, Administratrix of the Estate of Frank Holland, deceased, has lodged this appeal seeking reversal of the trial court’s order sustaining defendant Gordon Duckworth’s motion for summary judgment. Plaintiff sued defendant, a medical doctor, alleging he was negligent in leaving a surgical appliance in Frank Holland during an appendectomy and failing to discover it until a second operation sometime later. The trial court determined plaintiff’s malpractice suit was barred by the statute of limitation. We affirm.

The pleadings, motion and affidavits in the record reflect the following chronology of events which have given rise to the issue in this appeal:

December 1, 1969 — Defendant performed appendectomy on Frank Holland;
April 2, 1970 — Defendant performed a second operation on Frank Holland;
April 3, 1970 — Defendant last treated Frank Holland;
January 23, 1972 — Frank Holland died from causes unrelated to the present action;
January 22, 1973 — Plaintiff filed this suit in the Circuit Court of Pemiscot County, Missouri.

The Missouri statute of limitation for medical malpractice requires the action to be “brought within two years from the date of the act of neglect complained of. . . ” § 516.140, RSMo 1969. Plaintiff seeks to avoid the limitation defense by contending (1) the limitation period prescribed by § 516.140 did not commence until treatment of Frank Holland ended on April 3, 1970, and (2) another statute, § 516.180, RSMo 1969, gave plaintiff one year from Holland’s death on January 23, 1972, within which to sue the defendant. Neither contention, standing alone, is sufficient to maintain this suit since Holland died more than two years after his appendectomy and the present action was instituted more than two years after defendant’s treatment of Holland ended. Consequently, plaintiff’s claim that the statutory period did not begin to run until treatment ended [Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760 (1943)] is without importance in this appeal unless § 516.-140 is, because of Holland’s death, extended by § 516.180.

Section 516.180 does modify the limitation statutes for some actions owned by persons who die before their remedy is barred by the passage of time. Plaintiff takes the position that this statute is applicable generally to Chapter 516 and not merely to the preceding section, § 516.170, and is not limited to persons under disabilities who die within the period suit could have been brought.

Section 516.170 provides: “If any person entitled to bring an action in sections 516.-100 to 516.370 specified, at the time the cause of action accrued be either within the age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution under a sentence of a criminal court for a less term than for his natural life, such persons shall be at liberty to bring such actions within the respective times in sections 516.100 to 516.370 limited after such disability is removed.” (our emphasis)

A reproduction of § 516.180 as contained in the official Revised Statutes of Missouri 1969 is as follows:

“516.180. On death of person under disability, cause of action survives. — If any person so entitled to sue, dies before the expiration of the time herein limited for the commencement of such suit, if such cause of action shall survive to his representatives, his executor or administrator may, after the expiration of such time and within one year after such death, commence such action, but not after that period.”

The caption or catchline to the foregoing statute assumes the “person so entitled to sue” is one who dies under a disability, presumably as defined by § 516.170. However, plaintiff cites two cases indicating that the catchline is not part of the statute and is of no aid in construction since it has been added by the revisor of statutes and not by the legislature.

It has been the policy of this state since territorial days to toll the running of the statutory period of limitation if the cause of action accrued while the wronged party was under some legal disability. 1 Mo.Terr.Laws, at 144, § 2 (enacted July 4, 1807). By act of December 17, 1818, the legislature adopted another limitations law; this was restricted to actions for the inheritance or possession of realty [1 Mo.Terr. Laws, at 598-99] and included a tolling provision for disability. In addition, a new feature, was the following proviso:

“[I]n case such person or persons shall die within the said term of twenty years, under any of the disabilities aforesaid, the heir or heirs of such person or persons, shall have the same benefit that such persons could or might have had, by living until their disabilities should have ceased or been removed.”

The direct descendant of the foregoing provision is § 516.050, RSMo 1969, which continues to make it clear that a special limitation (now three years) applies only to the representatives of persons to whom a real action accrued while under a disability (see § 516.030, RSMo 1969) and who subsequently die while remaining disabled.

The notes of the compiler of these early laws disclose that both the acts of 1807 and 1818 were repealed in 1825, undoubtedly in favor of some new enactments incorporated in RSMo 1825. RSMo 1835 contains the law of limitations on real and personal actions as separate articles of the same chapter. Article I, on real actions, contains the following (RSMo 1835, at 393):

“§ 5. If any person entitled to commence such action, or to make such entry, die during the continuance of any disability specified in the preceding section, and no determination or judgment be had of the title, right or action to him accrued, his heirs may commence such action or make such entry after the time of this article limited for that purpose, and within ten years after his death, but not after that period.”

Article II covers personal actions and is partially set out below (RSMo 1835, at 394):

“§ 6. If any person entitled to bring any action in this article specified, die before the expiration of the time herein limited for the commencement of such suit, if such cause of action shall survive to his representatives, his executor or administrator may, after the expiration of such time, and within one year after such death, commence such action, but not after that period.”

The same statutes, with alterations not pertinent here, appear in the next two revisions and re-enactments. Ch. 109, art. I, §§ 4, 5, art. II, §§ 5, 6, RSMo 1845; ch. 103, art. I, §§ 4, 6, art. II, §§ 10,11, RSMo 1855.

This brings us to the act of February 24, 1857 [Mo.Laws 1857 at 78, § 11], which plaintiff insists should be read as the true law because of its variation from RSMo 1866 and all subsequent revisions. The 1857 statute appears to be identical in every respect to the limitations chapter of RSMo 1855.

Plaintiff makes much of the discrepancy apparent between Article II, § 11 of the 1857 law and ch. 191, § 15, RSMo 1866, which, except for two commas, reads precisely the same as present § 516.180 set out earlier. The 1866 revision preserved the death section relating to real actions with its explicit application to persons dying while disabled. The personal action section of instant concern departs from the language of its predecessors and does differ from the companion real action section. Compare ch. 191, § 6, with eh. 191, § 15, RSMo 1866. However, the entire revision of 1866 was enacted into law as of August 1, 1866 and the entire revision of 1855 was repealed as of the same date. Ch. 224, §§ 1, 2, RSMo 1866. Also see the Preface to that volume.

Thus, although it is difficult to believe the General Assembly intended any change in the law, the statute which formerly spoke of “any person, entitled to bring any action, in this article” refers to “any person so entitled to sue.” As a result, we are unable to agree with plaintiff’s averment that the court should look only to the language found in the Session Laws of 1857 and ignore the more than 100-year-old phrasing of § 516.180.

It is of some significance that a marginal catchline virtually identical to the present boldface heading to § 516.180 is found in the 1845 revision; a slightly different phrasing and format was employed in the 1835 revision. Both of these catchlines specifically refer to persons who die under disability. While not properly part of the law, these would seem to indicate how the statute was read and understood even before the more general wording, beginning with RSMo 1866, was adopted.

Following the 1899 revision the St. Louis Court of Appeals ruled that § 4281, RSMo 1899, [now § 516.180] refers to disabled parties as defined by § 4279, RSMo 1899, [now § 516.170] Rosenberger v. Mallerson, 92 Mo.App. 27, 31-32 (Mo.App.1902). (our emphasis) See also McKee v. Downing, 224 Mo. 115, 124 S.W. 7, 13 (1909); Ryan v. Ford, 151 Mo.App. 689, 132 S.W. 610, 612 (1910); Smith v. Settle, 128 Mo.App. 379, 107 S.W. 430, 430-31[2, 3] (1908).

In Rosenberger the court held:

“The right to sue therein granted must be construed as referring to disabled parties, such as are specified in the preceding section, and enuring only to the executors and administrators of persons who die while disabled and against whom, therefore, no limitation has begun to run; for if it had commenced running, the death of the person in whose favor the cause of action existed would not interrupt it.” “The first of the two sections allows a party under a disability the full limitation period after attaining legal capacity, to commence an action; and if such person dies while still under the disability, the next section limits the time in which a suit on the cause of action that had accrued to him but on which he had failed to sue, may be commenced by his representative.” 92 Mo.App. at 31-32.

We conclude that plaintiff sued too late. Additional support for this conclusion is found in Professor Davis’ comprehensive and authoritative article on limitations to tort actions. Davis, Tort Liability and the Statutes of Limitation, 33 Mo.L.Rev. 171, 207-08 (1968). The author states that § 516.180 applies only to those dying disabled. Special attention is called to Example 20 on page 208, which is the exact legal situation posed by the present appeal. In note 188 on page 208, Professor Davis cites §§ 537.010-.020 for his statement that the limitations period is unaltered if the injured has died without disability and before suing, (our emphasis)

We hold the statutory period for bringing suit had run and the trial court correctly granted defendant’s motion for summary judgment.

Judgment affirmed.

All concur.

      . Bullington v. State, 459 S.W.2d 334 (Mo. 1970); State v. Thomas, 301 Mo. 603, 256 S.W. 1028 (1923).


source: Caselaw Access Project

author: TURNAGE, Presiding Judge.

license: Public Domain

text:
    Richard SHOBE, Plaintiff-Respondent, v. Jere BORDERS, Defendant-Appellant.
    No. KCD 27945.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Rehearing Denied Aug. 2, 1976.

      Hollis H. Hanover, Wm. Dirk Vandever, Popham, Popham, Conway, Sweeny & Fremont, Kansas City, for defendant-appellant.
    Clyde G. Meise, J. Michael Jarrard, Meise, Cope & Jarrard, Kansas City, for plaintiff - respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Appeal following judgment entered on a jury verdict in favor of Richard Shobe and against Jere Borders for $9,000 personal injuries and $1,000 property damage. Borders complains the cause of action was based on the violation of an Independence ordinance which is claimed to be unconstitutional because it purported to regulate conduct in a vague and arbitrary fashion. Affirmed.

At the time of the occurrence, Independence had in force an ordinance, one section of which read as follows:

SEC. 3.310. DOGS RUNNING AT LARGE
A. It shall be unlawful for the owner of any dog to let such dog run at large, whether licensed or not, at any time, within the City of Independence, Missouri; and any dog or dogs found to be running at large shall be impounded by the Public Humane Officer of the City of Independence, at the humane shelter.
B. For the purpose of this section, the term “at large” is defined to be and mean off the premises of the owner and not under the reasonable control of owner or member of the immediate family.
C. “Reasonable control” as used herein is deemed to be when such dog is on the premises of its owner, or when such dog is not on the owner’s premises but with and under the control of its owner, his agent, or some member of the owner’s family.
Not under reasonable control” — A dog shall be deemed to be not under reasonable control when such dog, not being upon the premises of its owner, or not with or under the control of its owner, the owner’s agent, or some member of the owner’s family, or when such dog commits damage to the person or property of anyone other than its owner, except when the dog is in defense of its owner, his family or property. D.

Shobe rode his motorcycle to visit a friend in Independence and while riding down the street, the Borders’ dog, Charlie, suddenly ran from the sidewalk into the street. Charlie grabbed the front wheel of the motorcycle causing the cycle to overturn, throwing Shobe to the pavement. Charlie was part Labrador Retriever, part German Shepherd and part Great Dane, and was described as being something over three and one-half feet tall.

At the time of the occurrence, Charlie was walking with the Borders’ 15 year old son. No leash or other restraint was being used to control Charlie. Both Borders and his son testified Charlie would obey the son in the sense the dog would come to the son when called.

On this appeal Borders contends the language of the ordinance quoted above is unconstitutionally vague and arbitrary because it fails to sufficiently advise residents of Independence as to what their dogs were permitted to do or prohibited from doing.

Borders levels his attack at the definition of the terms “at large”, “reasonable control” and “not under reasonable control”. Borders poses a number of hypothetical situations in an attempt to demonstrate the confusing language of the ordinance and the definitions therein. However, it is not necessary to determine if a situation could be imagined in which the terms of the ordinance might be vague or confusing, since the only application which is to be made of the ordinance is to the facts of this case.

Under the facts in this case, Charlie was off the premises of his owner and did damage to the person and property of another. There is no contention he was in the defense of his owner’s family or property so the only exception to Section 3.310(D) is not applicable.

Borders bottoms his argument of unconstitutionality on the alleged vague and arbitrary terms of the ordinance in light of criminal cases. He relies on Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) and Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). Those cases speak in terms of vagueness as applied to the requirements of a criminal statute. However, as pointed out in Solan & Billings v. Pasche, 153 S.W. 672, 674 (Tex.Civ.App.1913): “It is objected that the section of the law quoted is unconstitutional and cannot be enforced as a penal statute, because it is so vague and indefinite that it is not susceptible of enforcement as such. It is unnecessary to determine whether or not the statute is subject to the particular objection urged, as it was at least sufficient as a remedial statute imposing a civil duty so as to render its violation negligence per se.” See also Howsley v. Gilliam, 517 S.W.2d 531 (Tex.1975).

Furthermore, “[cjourts do not declare void for uncertainty any statute susceptible to any reasonable construction which will sustain it.” In re Armistead, 362 Mo. 960, 245 S.W.2d 145, 151[8, 9] (1952).

Applying the above rules to the facts in this case, it is necessary to determine if the ordinance is sufficient as a remedial statute which imposes a civil duty under any reasonable construction.

Viewing the facts in this case in light of the provisions of the ordinance above, it is apparent Borders, as the owner of Charlie, was allowing such dog to run at large since the definition of “at large” is to be “off the premises of the owner and not under reasonable control of the owner or member of the immediate family.” “Not under reasonable control” is defined as “not being upon the premises of its owner ... or when such dog commits damage to the person or property of anyone other than its owner.”

In plain and straightforward language, the ordinance gives the above definitions and it is not difficult to determine from the above that Charlie fit into the ordinance definition of a dog running at large and not under reasonable control. In short, if a dog were off the premises of the owner and did damage to the person or property of anyone else, then such dog was running at large and was not under reasonable control, and the owner had thereby violated the ordinance. This requires no strained or artificial construction of the ordinance, but simply follows the plain language used therein. This being so, the ordinance was definite enough to create a civil duty to keep a dog under control when off the premises of the owner to prevent it from doing injury to persons or damage to property.

Having found the ordinance sufficiently definite in its terms to create civil liability, it is unnecessary to pass on its constitutionality or to determine if it would support any type of criminal or penal sanction. Therefore, the court was correct in using the ordinance as a standard of conduct for Borders with reference to his ownership of Charlie.

Borders next seeks to claim error on the ground Shobe failed to prove Borders violated the ordinance; that Shobe was within the class of persons intended to be protected by such ordinance; that Shobe’s injuries were of the character the ordinance was designed to prevent; and that such injuries were proximately caused by violation of such ordinance. However, this assignment of error has not been preserved for review. At the close of all of the evidence, Borders filed a motion for directed verdict. In this motion the only attack upon the ordinance, or upon the evidence adduced to show its violation, was the argument just considered. None of the matters sought to be raised in this point were included in such motion.

After the verdict Borders filed a motion for judgment in accordance with the motion for directed verdict in which he reiterated his motion for directed verdict. He did not file a motion for a new trial. The point attempted to be asserted here was a proper subject for the motion for judgment in accordance with the motion for directed verdict. However, to properly preserve this point for review, it was necessary for it to be raised either in a motion for a new trial or in the motion for judgment in accordance with the motion for directed verdict. Rules 78.07, 72.01.

Since the question sought to be raised by the second point has not been preserved for review, there is nothing presented for determination. Safe-Buy Real Estate Agency, Inc. v. Hemphill, 498 S.W.2d 599 (Mo.App.1973).

The judgment is affirmed.

All concur.


author: HENRY, Justice.

text:
    CORPORATION OF COLLIERVILLE, Appellant, v. FAYETTE COUNTY ELECTION COMMISSION et al., Appellees.
    Supreme Court of Tennessee.
    May 24, 1976.

      R. Lee Winchester, Jr., James W. Pate, II, Memphis, for appellant.
    Troy W. Tomlin, Somerville, for appel-lees.
   OPINION

HENRY, Justice.

This suit in chancery poses the perennial problem of standing to sue. It arises in the context of an effort by an existing municipality to nullify the corporate charter of a contiguous municipality incorporated under § 6-1801, et seq., T.C.A. the statutory scheme for the incorporation of municipalities under city manager-commission charters.

The Chancellor sustained a Motion to Dismiss, under Rule 12.02, Tenn.R.Civ.P., holding that the corporation of Collierville had no standing to sue, since this was a quo warranto proceeding pursuant to § 23-2801(3) T.C.A. and, as such, must be brought in the name of the District Attorney General of the Judicial Circuit (16th) of which Fayette County is a part.

We reverse.

I.

Collierville is a municipal corporation located in Shelby County, Tennessee and, according to the latest census for distributing state-shared taxes, has a population of 5,152 persons.

Piperton is a community in Fayette County, Tennessee, located within two miles of Collierville and, at places, its boundary coincides with that of Collierville. The area embraced within the proposed municipality of Piperton has a population of 389 persons according to the results of a special census certified on June 28, 1974.

On 3 March 1974, certain residents of Piperton, acting pursuant to § 6 — 1801, et seq., T.C.A., filed their petition with the Fayette County Election Commission requesting that an election be conducted in the proposed area. On 2 May 1974, the election was conducted and the next day the Commission certified that the proposal to incorporate had been adopted by a vote of fifty-four to thirty-seven.

Collierville filed its complaint on 30 July 1974, challenging the legality of Piperton’s charter on various grounds, including a charge that:

The boundaries of the proposed City of Piperton ... are within two (2) miles of the boundaries of the incorporated Corporation of Collierville, being at times contiguous with the boundaries of said Corporation of Collierville.

II.

The statutory scheme is clear. Section 6-1803 provides in pertinent part:

[T]hat if any part of unincorporated territory proposed for incorporation is within . . two (2) miles of an existing city of five thousand (5,000) and less than one hundred thousand (100,000) in population, according to the latest census used for distributing state-shared taxes, then action on the petition as provided in §§ 6-1804, 6-1805 shall be held in abeyance for fifteen (15) months from the date of filing the petition; if within this period such existing city does not annex at least twenty per cent (20%) of the land area or thirty-five per cent (35%) of the population of such territory proposed for incorporation, then proceedings shall be continued as provided in §§ 6-1804, 6-1805 as though the petition had been filed at the conclusion of such fifteen (15) month period; if such existing city annexes at least said part of such territory within this period, then the petition shall be null and void and of no effect whatsoever. (Emphasis supplied)
Provided, further, that whenever the governing body of any existing city affected by this section shall, by a resolution adopted by at least a two-third (⅜) majority vote of its governing body, indicate that it has no interest in the prior rights reserved to it by the provisions of this section, and, when a certified copy of that resolution is filed with the petition submitted to the county election commission which asks that the incorporation election be held, then the provision herein for holding the incorporation proceedings in abeyance for a period of fifteen (15) months shall be null and void and of no effect whatsoever, and the proceedings shall be continued as provided in this chapter just as though the proposed new incorporation were not within the specified distance of such existing city.
The county election commission shall have a period of fifteen (15) months; either after the filing of the petition; or after the expiration of the fifteen (15) month abeyance period reserved for existing cities; or after the filing of the resolution declaring no interest by the existing city, within which to publish notice of the election as required under § 6-1804.

It was the self-evident intent of the Legislature to preclude a proliferation of small cities clustered in contiguous communities with boundaries unidentifiable except by markers and metes and bounds descriptions bearing no reasonable relation to population groupings. It was further the obvious intent to favor existing municipalities. Section 6-1802 provides that this statutory scheme shall be liberally construed to effect its substantial objects.

Irrespective of purpose, the Legislature is in complete command of the creation of cities. It has mandated that a community within the two-mile limit must yield to an established city for a period of fifteen months. During this waiting period the established city may defeat the right of the potential city by the simple expedient of annexing twenty per cent of the land area or thirty-five per cent of the population. At the option of the established city it may disclaim any interest and permit the proposed incorporation.

The potential city has no option. Nor does the election commission.

The question recurs: Does the existing city have standing to sue to invalidate the charter of the proposed city when the two-mile provision and the resulting 15-month mandatory waiting period are ignored.

It does.

To hold otherwise would be to say that the Legislature intended to give the established city a right which it could enforce unilaterally and out of court against a proposed city proceeding in obedience to the law but that it could not seek redress in the courts when the proposed city proceeds in defiance of the law. Such a result would be absurd.

Our cases on standing to sue are founded on the principle that private citizens may not sue to challenge the corporate existence of a municipality, but that this is a public matter which may only be redressed in a proceeding prosecuted by a representative of the state. With this general rule of law we are in full accord.

We are urged to affirm on the authority of City of Fairview v. Spears, 210 Tenn. 404, 359 S.W.2d 824 (1962). We do not question the soundness of the rule of Fairview, but it has no application to this case. There private citizens sought to invalidate a municipal charter. The only question before the Court was the mechanics of the charter election.

The Court in Fairview properly held that private citizens had no standing to sue “as such action will have to be brought in the name of the state.” 210 Tenn. at 413.

Here, we do not deal with private citizens. We deal with a complaining municipality for whose benefit a statutory proviso was obviously enacted. It is beyond question that a Tennessee municipality is an agency of the state exercising a portion of the sovereign power of the state for the public good. Bricker v. Sims, 195 Tenn. 361, 259 S.W.2d 661 (1953). Most assuredly, an “arm of the state”, and a repository of a portion of the state’s sovereign power, has the standing to sue without recourse to an officer of the state. A contrary holding would force Collierville into another judicial circuit seeking the sufferance of a district attorney general of another constituency.

This case is further distinguishable from Fairview in that there the Court was dealing with mere technical irregularities; whereas, here we deal with controlling criteria in the form of conditions precedent to corporate existence.

Cole v. Langford, 221 Tenn. 458, 427 S.W.2d 562 (1968) is distinguishable since it involved a suit brought by private citizens.

The opinion of the Chancellor is

Reversed.

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

      . This is stipulated to be true.

      . In the instant suit it is stipulated that the “mechanics” of speedy incorporation were complied with.


author: RUSSELL, Judge. DUNCAN, Judge

text:
    Harold Lee JACKSON, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Feb. 19, 1976.
    On Petition to Rehear Filed May 6, 1976.
    Certiorari Denied by Supreme Court July 6, 1976.
    Walker Gwinn, Asst. Public Defender, Memphis, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, John W. Pierotti and James W. Harrison, Asst. Dist. Attys. Gen., Memphis, for defendant-in-error.
   RUSSELL, Judge.

OPINION

Harold Lee Jackson appeals his first degree murder conviction and eighty year penitentiary sentence.

The first three assignments of error question the legal sufficiency of the convicting evidence. At about 11:40 p. m. on August 5, 1973, Michael Edward Whitten, a clerk at the Corner Grocery at South Parkway and Willett in Memphis, was killed by a shotgun blast directed at him by one of two armed robbers. Two eyewitnesses to this murder, both of whom knew Jackson at least by appearance before this night, identified him as the killer. Jackson did not testify, but offered an alibi defense through his father and brother; and also presented a witness who claimed to have seen the robbers running from the store and said that Jackson was not one of them.

The evidence certainly does not preponderate against the verdict. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

It is assigned as error that the State was allowed to peremptorily challenge a juror previously accepted. The record does not reflect this, except by allegation in the motion for a new trial. A motion for a new trial is but a pleading and does not establish the fact of an allegation therein. Mitchell v. State, 3 Tenn.Cr.App. 494, 464 S.W.2d 307 (1971). An alleged error will not be considered on appeal if the record contains nothing to support it. Baldwin v. State, 204 Tenn. 639, 325 S.W.2d 244 (1959).

Finally, it is assigned as error that the trial judge charged the jury as mandated by T.C.A. § 40-2707. While counsel on appeal makes a multi-pointed attack upon the statute, the motion for a new trial simply alleged that T.C.A. § 40-2707 is unconstitutional “because it violates Section II of the Tennessee Constitution.” Counsel doubtless meant Article II, dealing with the distribution of powers among the Legislative, Executive and Judicial departments. We have heretofore held that this statute is not a violation of the separation of powers concept. Sharp v. State, Tenn.Cr.App., 513 S.W.2d 189 (1974).

The Judgment is affirmed.

WALKER, P. J., and DUNCAN, J., concur.

OPINION ON PETITION TO REHEAR

In this case we held that T.C.A. § 40-2707 was not unconstitutional as a violation of the separation of powers concept set out in Article II of the Constitution of Tennessee, that being the only basis for attack upon the statute that was properly before this Court. See Rules 14(2), 14(4) and 14(5).

The Supreme Court case of Farris v. State, Tenn., 535 S.W.2d 608, 1976, held T.C.A. § 40-2707 to be unconstitutional because of an improper caption, but only one justice was of the opinion that it violated Article II of the Constitution of Tennessee. Under our rules, that was the only viable question in this case. Hence, Farris is not in conflict with the opinion heretofore entered.

In its opinion on the Petition to Rehear in Farris, supra, filed March 30, 1976, relief was again denied Farris because he had not properly assigned the error, the Supreme Court having “neither the disposition nor the duty to search the record and decide cases and controversies on the basis of unassigned error”.

In our original opinion we relied upon Sharp v. State, Tenn.Cr.App., 513 S.W.2d 189 (1974), which was dispositive of the actual question presented. In Farris, supra, our Supreme Court explicitly said:

“In Sharp, the Court of Criminal Appeals * * * sustained Chapter 163 of the Public Acts of 1973 in the face of a challenge asserting that the Legislature invaded the province of the Judicial Branch of the government; however, that case did not touch upon the issue here presented. (Emphasis supplied.)
* * * * * *
“In summary, as to the precise question herein involved, we address a matter of first impression. * * * ”

We hold that Farris does not mandate a rehearing in this case.

Upon reviewing the case sub judice, we find no reason to strain to apply Farris to this case, as justice has been done in sentencing Jackson to eighty years for a vicious killing of an innocent robbery victim.

WALKER, P. J., and DUNCAN, J., concur.

ON PETITION TO REHEAR

DUNCAN, Judge

(concurring).

I concur with the majority that the defendant is not entitled to relief on his petition to rehear, but for a different reason.

I would not hold, as does the majority, that the defendant’s complaint is precluded because he based his attack in the trial court on the unconstitutionality of T.C.A. § 40-2707 on an improper ground.

To me, this seems to be a strained interpretation of Farris, Robinson, and Lewis v. State, 535 S.W.2d 608 (Tenn.1976).

In his motion for a new trial, the defendant alleged that the Act was unconstitutional because of the separation of powers concept and failed to allege that the body of the Act was broader than its caption. However, in his original brief in this Court, the defendant expanded his unconstitutional complaint to argue that “The Act should also be held unconstitutional because it is broader than its caption, . . . .”

To me, the instant case is similar to the Farris companion case of Roosevelt Lewis v. State, where the Supreme Court recognized Lewis’ complaint, even though he had not raised the “improper caption” complaint in the trial court. In Lewis’ motion for a new trial, he complained of the unconstitutionality of T.C.A. § 40-2707, but as stated, he did not allege the “improper caption” complaint. A similar situation exists in Jackson’s motion for a new trial. Also, like the present case, Lewis first began to insist on this additional ground for the Act’s unconstitutionality when his case came to our Court. Further, Lewis listed this additional ground when his case was before the Supreme Court. Since Lewis had raised the unconstitutional question in the trial court, the Supreme Court did not decline to consider his ground because he had predicated his complaint there on an improper ground.

Thus, I am of the opinion that the defendant’s complaint has been sufficiently raised, but I would deny the petition to rehear on the basis of some of the Supreme Court’s language in its opinion on the Farris, et al petition to rehear (released March 30, 1976), where the Court said:

“In order to clarify further our holding in this case we point out that the fact that a trial judge, prior to the release of our opinion, may have charged the jury on parole considerations does not necessarily mean that the error is reversible or that we will follow the Farris procedure.”

Further, the Supreme Court approved the principle that such cases should be governed by its own facts, i. e. “ ‘every tub must stand on its own bottom.’ ”

In the present case, the jury set the defendant’s punishment at an 80 year penitentiary sentence for a brutal murder committed by two armed robbers. In my view, the charge of the court did not bring about the punishment set. It was the facts of the case that dictated the sentence set by the jury. I would hold the error in the court’s charge to be harmless. T.C.A. § 27-117.


author: DAUGHTREY, Judge.

text:
    Kenneth JUDGE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    March 19, 1976.

      Bernard K. Smith, McMinnville, Joe S. Bean, Winchester, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, for defendant in error.
   DAUGHTREY, Judge.

OPINION

The defendant, Kenneth Judge, was convicted of second degree burglary, and was sentenced by the jury to not less than three nor more than 15 years in the penitentiary. He appeals his conviction, setting out multiple assignments of error which present four issues to be resolved by this Court.

The defendant alleges (1) that the evidence preponderates against the verdict; (2) that the trial court erred in failing to charge the jury on the lesser included offense of attempt to commit a felony; (3) that the trial judge likewise erred in failing to instruct the jury that they were the judges of the law as well as of the facts of the case; and (4) that the prosecutor made improper statements during argument which constitute reversible error. For the reasons stated below in connection with the last issue, we agree that prejudicial error has occurred and that the judgment must be reversed and the case remanded for a new trial.

The evidence at trial was that the home of Paula and Edward Porter in McMinnville, Tennessee, was burglarized on April 6, 1973, at approximately noon. Paula Porter, the State’s chief witness, had returned to the house to find an unfamiliar car parked in the driveway. She entered the house and was attempting to telephone her husband when she heard the front door slam. At that time Mrs. Porter saw a man, presumably the intruder, rush past the window with something in his arms which looked to her like clothing. She went to the back door and saw him getting into the car with the clothes, and at this point he looked at her and said, “Sorry, Ma’am, wrong house.” As the car was being driven away Mrs. Porter saw a garment sleeve trailing out of the car which looked “familiar” to her. She testified that she later found over $200.00 worth of her personal clothing missing from her bedroom, which had been ransacked. According to her husband’s testimony, the clothing reappeared the next day, April 7,1973, in a box left on the front porch of the Porter home by someone unknown. Mrs. Porter was able to identify the clothing as hers, but was unable to swear that everything taken had been returned because some of the items stolen were miscellaneous undergarments.

At the time the car pulled away, Mrs. Porter noted its color and memorized the license plate number, which she wrote down on a piece of paper some five minutes later at a neighbor’s house. This paper was misplaced and played no part in the trial of the case. Mrs. Porter testified she gave the number to the investigating police officer from memory rather than from the writing, and she again recited the number at trial, purportedly from memory. The record is devoid, however, of any direct evidence that the license number given to the police or recounted by Mrs. Porter at trial was indeed that of the defendant. The McMinn-ville Police Chief testified that he received a license number from Mrs. Porter, made an investigation and as a result gave certain information to Mr. Porter, who then swore out an arrest warrant for the defendant Judge. No documentary evidence of any kind relating to the license number was introduced at trial, an unfortunate gap in the evidence which presumably can and should be filled in when the case is retried.

Mrs. Porter made an in-court identification of the defendant, saying she had “no doubt whatsoever” that he was the person she saw at her home on April 6. She said she had seen him one other time prior to trial, at the preliminary hearing in this cause, and that she had also identified him on that occasion. Her eyewitness identification was undermined and to some extent made suspect, however, by the fact that shortly after the burglary her husband had hired a private detective who presented the Porters with a picture of the defendant sometime prior to the preliminary hearing. This purportedly was done to avoid the possibility that the defendant would somehow change his appearance prior to trial in an effort to frustrate his identification. No such action was undertaken by the defendant, who insists that the in-court identification was tainted by the existence of the photograph, which the Porters still had at home at the time of the trial. On cross-examination Mrs. Porter denied that her identification was based on or had been affected by the existence of the defendant’s photograph, and testified that she recognized him “from seeing him” and not from looking at his picture. There is no evidence in the record regarding any description of the intruder given the police by Mrs. Porter. The police chief had forgotten what description she gave and apparently had no police report with him at trial from which he could refresh his recollection.

The defendant did not testify. He produced two alibi witnesses, one of whom, Virgil Sanders, was his brother-in-law, and the other of whom, Steven Hill, was married to the defendant’s first cousin. Mr. Sanders testified that he had been fishing with the defendant in an adjacent county during the time the burglary occurred. He said he remembered the date because it was the birthday of a family member which was celebrated at a gathering later in the day. Mr. Hill testified that he had come by the defendant’s home on business and saw the defendant and Mr. Sanders fishing in the pond behind defendant’s house during the period described by Mr. Sanders. There were no other witnesses for the defense.

Taken altogether, the evidence against the defendant in this case can only be described as tenuous. Nevertheless, the verdict of the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State. The conviction will not be reversed on the facts unless it is shown that the evidence preponderates against the verdict and in favor of the innocence of the accused. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). While the evidence of guilt in this case is far from overwhelming, we cannot say that the evidence preponderates in the defendant’s favor.

From the facts it is also clear that the trial judge committed no error in failing to charge the jury on attempt to commit a felony, which is made a lesser included offense of every graded felony under T.C.A. § 40-2520. The offense here was fully completed, a fact which was undisputed at trial. Where there is no evidence to support conviction of a lesser included offense, so that the accused can only be guilty of the greater offense or of no offense at all, it is not error to fail to charge the lesser offense. James v. State, 215 Tenn. 221, 385 S.W.2d 86 (1964), cert. denied, 381 U.S. 941, 85 S.Ct. 1777, 14 L.Ed.2d 705 (1965). The State’s theory here was that the crime of burglary had been committed by the defendant, and the defendant’s theory by interposition of an alibi defense was that he was wholly innocent. Therefore, the sole issue at trial was the perpetrator’s identity, and there is no evidence in the record which would tend to reduce the grade of the offense. Under such circumstances it is unnecessary to instruct the jury on the lesser offense of attempt to commit a felony. Patterson v. State, 218 Tenn. 80, 400 S.W.2d 743, cert. denied, 385 U.S. 870, 87 S.Ct. 139, 17 L.Ed.2d 98 (1966).

The defendant next alleges that the court erred in giving the following charge to the jury:

You are the judges of the facts. In making up your verdict, you are to consider the law in connection with the facts, but This Court is the proper source from which you are to get the law. In other words, you are the judges of the facts under the direction of the Court.

The defendant cites Ford v. State, 101 Tenn. 454, 47 S.W. 703 (1898) and insists that the instruction violates Article 1, Section 19 of the Tennessee Constitution:

The jury shall have the right to determine the law and facts under the direction of the court in libel as in other criminal cases.

The State denies that the charge is erroneous as.given, arguing that it comes closer to the language upheld in Cordell v. State, 207 Tenn. 231, 338 S.W.2d 615 (1960) than to the instruction disapproved in Ford, supra.

We find it unnecessary to decide the issue as posed in the briefs because the error in the charge, if any, is harmless under the standard applied in Ford, where the court said:

. [The] mere failure to tell the jury that they are judges of the law is not necessarily reversible error. . [WJhere no injury could have resulted to defendant, it is not reversible error. Such a case is one where, whoever judged of the law, it was sufficiently and accurately charged, and as fully as should have been.

Some doubt was cast on the validity of Ford by such intervening cases as Dykes v. State, 201 Tenn. 65, 296 S.W.2d 861 (1956), wherein the court held that under Tennessee law constitutional error could never be harmless error. This misconception was cleared up by the opinion in Huffman v. State, 3 Tenn.Cr.App. 124, 458 S.W.2d 29 (1970). The result is the rehabilitation of Ford. Because there was no other error in the charge, under the rule announced in that case any error committed by the trial court here is at most harmless.

On retrial, the court below can avoid the possibility of committing unnecessary harmful error by altering its charge to conform to the approved instruction set out in Ford.

The last and most serious question raised by this appeal is the allegation of prejudice to the defendant by improper remarks of the prosecutor during final argument. Not all of the statements complained of were in fact improper, but on one occasion the prosecutor’s comments were ruled improper by the trial judge, as seen in the following exchange:

[PROSECUTING ATTORNEY]: . . . And this Steve Hill, who I know peculiar things about—
DEFENSE ATTORNEY: Object, Your Honor.
THE COURT: Sustained. You will not consider that remark, Ladies and Gentlemen.
PROSECUTING ATTORNEY: Whose character I have formed an opinion about.
DEFENSE ATTORNEY: Your Honor, I objected to it.
PROSECUTING ATTORNEY: And I think you can form an opinion from the evidence.
DEFENSE ATTORNEY: Your Honor, we object to this.
THE COURT: Well, Ladies and Gentlemen—
DEFENSE ATTORNEY: And respectfully move for a mistrial.
THE COURT: I overrule that motion. Ladies and Gentlemen, you will not consider what any lawyer says that he happens to know about somebody if that evidence did not come from this witness stand. You may proceed, General.
PROSECUTING ATTORNEY: May it please the Court, what I meant to say—
DEFENSE ATTORNEY: Your Honor, we except.
THE COURT: Overrule your motion.
PROSECUTING ATTORNEY: I formed an opinion as to what kind of character he is from the testimony up here on this witness stand . . .

While the prosecutor’s statement was without question improper, the question before us is whether it was so prejudicial to the defendant as to invalidate his conviction. We think that it was.

Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758 (1965) sets out the test to be applied by the appellate court in reviewing instances of improper conduct, i. e., “whether the improper conduct could have affected the verdict to the prejudice of the defendant.”

The courts and commentators seem to agree that there are some five factors which should be considered in making this determination:

1. The conduct complained of viewed in context and in light of the facts and circumstances of the case.
2. The curative measures undertaken by the court and the prosecution.
3. The intent of the prosecutor in making the improper statement.
4. The cumulative effect of the improper conduct and any other errors in the ■ record.
5. The relative strength or weakness of the case.

In applying the basic principle that the improper statement must be taken in context and weighed in terms of the facts and circumstances of each case the courts have considered whether the remarks were lengthy or repeated, or whether the statement was single or isolated. They have also taken into account whether the improper remark of the prosecutor was made in response to the defendant’s comments or argument, see, e. g., Coke v. State, 208 Tenn. 248, 345 S.W.2d 673 (1961), and the general “atmosphere” of the courtroom. This Court recognizes that some arguments are more heated than others, and that latitude must be given so as to allow effective argument by counsel. But that latitude must be limited by the principle that attorneys are not permitted to introduce or comment upon evidence which has not previously been offered and placed before the jury.

The prosecutor is an advocate, and is entitled to pursue his role with thoroughness and vigor. But, as set out in Justice Sutherland’s classic opinion in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), the prosecutor also acts as:

the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.

In this case the prosecutor, quite naturally spurred by his duty and undoubtedly also by the obvious closeness of his case, nevertheless overstepped the line between the fair and the foul, engaging in unwarranted personal opinion and insinuation. In the last analysis, he became a witness against the defendant, testifying not only to facts outside the record but also to matters within his personal knowledge as the chief law enforcement official in the county. In effect, then, the prosecutor placed his own credibility in issue before the jury. Because of the special regard in which the district attorney is held by the citizenry, under such circumstances the effect on the jury is likely to be pronounced. The nature of the remark, the repeated effort by the prosecutor to convey the idea to the jury, and the fact that it was directed to an alibi witness here combine to produce the strong possibility of prejudice to the defendant. While the alibi defense presented by the defendant is not conclusive, it bears no special indication of being manufactured or fabricated. It is true that the verdict of the jury has the effect of accrediting the State’s case and discrediting the proof offered by the defense. But the question is whether in this case the jury could have considered with impartiality the alibi evidence presented by the defendant, given the improper comment by the prosecutor. The problem is compounded by the content of the alibi instruction normally charged under Tennessee law.

The second factor to be weighed in determining whether the test in Harrington has been met is the curative measures undertaken by the court and by the prosecution.

The State maintains that the trial court’s ruling sustaining the defendant’s objection to the improper remark and the contemporaneous instruction to the jury cure any prejudice to the defendant and make any error harmless as a matter of law, citing Gaston v. State, 506 S.W.2d 802 (Tenn.Cr.App.1973), French v. State, Tenn.Cr.App., 489 S.W.2d 57 (1972), Cantrell v. State, 3 Tenn.Cr.App. 434, 463 S.W.2d 145 (1970), and Dishman v. State, 3 Tenn.Cr.App. 725, 460 S.W.2d 855 (1970). We have studied these cases carefully and find that they do not support the general proposition of automatic cure. We think that an improper statement by the prosecutor made during argument may constitute reversible error despite curative instructions by the trial court.

The trial judge here instructed the jury to disregard the remark but took no additional steps to assure removal of prejudice. We believe in view of the highly prejudicial nature of the statement, that further action was called for, e. g. an admonition to the prosecutor. In the absence of such a rebuke, the prosecutor continued his efforts to convey to the jury his personal knowledge or opinion of the witness in question. And the prosecutor made no retraction.

A third factor involves examination of the prosecutor’s intent in making the improper statement, although arguably the prejudicial effect to the defendant is the same regardless of the prosecutor’s good or bad intent. In any case, the prosecutor here clearly was not acting in the kind of “good faith” demonstrated in Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).

While we find no other error in the record presented to us, and therefore do not need to weigh the cumulative effect of the prosecutor’s statement with other errors committed at trial, it is apparent that the fifth factor does deserve consideration in this case. The courts quite properly have tended to look to the relative strength or weakness of the case in determining the likelihood of prejudice in the minds of the jury. While the evidence here preponderates in the State’s favor on appeal, this case was a very “close” one at trial when viewed by the reasonable doubt standard. Therefore, the prejudicial impact of the statement on the jury is likely to have been greater than it would have been had evidence of defendant’s guilt been overwhelming. See Berger v. United States, supra, 295 U.S. at 89, 55 S.Ct. 629, and eases cited therein.

In conclusion we have here an improper statement of a very prejudicial nature concerning facts outside the record, resting on the prosecutor’s credibility, with repeated efforts to convey the thrust of the statement to the jury; there was no retraction and the corrective statement by the court may not have been sufficient to be entirely curative; the prosecutor’s statement cannot be said to have been made in good faith; and it occurred in a case which on the record can only be characterized as “weak,” thereby increasing the likelihood of prejudice in the determination of the guilt or innocence of this defendant. Applying, as we must, the reasonable doubt standard to this question, we find that the improper statement could have affected the verdict to the prejudice of the defendant. Harrington v. State, supra, 215 Tenn. at 340, 385 S.W.2d 758; Huffman v. State, 3 Tenn.Cr.App. 124, 458 S.W.2d 29 (1970); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Certainly we are unable to say beyond a reasonable doubt that it did not.

Furthermore, in this case the prejudicial statement went to the issue of the defendant’s guilt or innocence, and was not of the inflammatory nature designed to affect the punishment alone, as was the case in the recent decision in Smith v. State, 527 S.W.2d 737 (Tenn.1975). Therefore the appropriate relief lies not in adjustment of the sentence, but by remand to the court below for a new trial.

Reversed and remanded.

WALKER, P. J., and RUSSELL, J., concur.

      . See, e. g., Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 Tex.L.Rev. 629 (1972); Vess, Walking a Tightrope: A Survey of the Limitations on the Prosecutor’s Closing Argument, 64 J.Crim.L. & Criminology 22 (1973); Oliver, Supreme Court’s View as to What Courtroom Statements Made by Prosecuting Attorney During Criminal Trial Violate Due Process or Constitute Denial of Fair Trial, Annotation, 40 L.Ed.2d 886 (1975).

      . The Code of Professional Responsibility, Canon 7, Ethical Consideration 7-13, promulgated by the American Bar Association, provides as follows:
      The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict (citing to Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)).
      And in Disciplinary Rule 7-106, the Code provides that a lawyer shall not:
      (C)(1) State or allude to any manner that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence. .
      # ⅝ * ‡ ⅝! ⅜
      (3) Assert his personal knowledge of the facts in issue, except when testifying as a witness.

      (4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness or as to the guilt or innocence of an accused .
      In its Standards Relating to the Prosecution Function, the American Bar Association has adopted the following relevant standards:
      5.8 Argument to the jury
      (a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
      (b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony

      5.9 Facts outside the record.
      It is unprofessional conduct for the prosecutor intentionally to refer to or argue on the basis of facts outside the record .
      Unless such facts are matters of common public knowledge based on ordinary human experience or matters of which the court may take judicial notice.

      . In this case the trial court charged the jury with respect to the law of alibi:
      You are, Ladies and Gentlemen of The Jury, instructed to consider the proof of an alibi with strictness and caution, as it is a defense so liable to abuse, from the ease with which it is concocted when a design exists to practice a fraud on the State, and, even if no such design does exist, by ignorant mistake as to particular hour and the lapse of time, that it requires great strictness and caution on the part of The Court and Jury to avoid frequently being misled by it. . . .
      The evidence, to establish an alibi, must be very strong. And the defense of an alibi, to be good, must be supported by very positive and satisfactory testimony. . . . [P]roof of an alibi can only be conclusive when, taken as true, it shows that there was no reasonable possibility of the defendant’s presence at the time and place of the alleged crime.

      . In Frazier the prosecutor in his opening statement made a summary of testimony he expected to receive from a certain witness who subsequently invoked his privilege against self-incrimination when called by the State as a witness. The United States Supreme Court held that the record reviewed as a whole failed to indicate deliberate misconduct by the prosecutor.


author: PER CURIAM.

text:
    Steve S. ALEXANDER, Petitioner, v. Linn C. ALEXANDER et al., Respondents.
    No. B-5856.
    Supreme Court of Texas.
    April 7, 1976.
    Steve S. Alexander, pro se, Goggan & Cain, Thomas S. Goggan, Austin (on appeal to Supreme Court only), for petitioner.
    McNamara, Smith & McNamara, John B. McNamara, Waco, for respondents.
   PER CURIAM.

This was a suit for partition of real estate instituted by Linn C. Alexander and Mo-zelle Alexander Hesterly against Steve S. Alexander. Following the trial court order approving the receiver’s sale of the property in question, Steve S. Alexander appealed. The court of civil appeals dismissed the appeal on the grounds that Steve S. Alexander failed to give notice of appeal as required by Rule 353, Texas Rules of Civil Procedure (1973). 532 S.W.2d 150.

Within fifteen days after the court of civil appeals entered its order dismissing the appeal, Steve S. Alexander filed a motion for rehearing in which he asserted that he gave oral notice of appeal in open court after the trial court overruled his amended motion for new trial. The oral notice of appeal given by Steve S. Alexander was not recorded in the court’s order or on the docket sheet and it was not otherwise included in the transcript. However, attached to Steve S. Alexander’s motion for rehearing in the court of civil appeals was a stipulation by both parties that oral notice was actually given by Steve S. Alexander after the trial court overruled his amended motion for new trial. The facts recited in the stipulation indicate that the oral notice of appeal was timely presented.

In determining the adequacy of oral notices of appeal we have held that the actual giving of the notice is essential, whereas timely entry upon the record of such notice is not essential. Texas Rubber Supply, Inc. v. Jetslide Internat’l, Inc., 466 S.W.2d 279, 280 (Tex.1971). “Whether or not the trial court’s original pronouncement included a recitation of the notice of appeal by an objecting party, a subsequent determination of the fact of that notice should be available for the determination by the court of civil appeals of its jurisdiction.” Accordingly, Steve S. Alexander was entitled to an opportunity to present the stipulation of the parties and any other evidence bearing upon the issue of whether notice of appeal was actually given in open court.

Steve S. Alexander timely filed two applications for writ of error in this court. Pursuant to Rule 483, Texas Rules of Civil Procedure, the applications for writ of error are granted and, without hearing argument, the judgment of the court of civil appeals is reversed and the cause is remanded to that court for further proceedings in accordance-with this opinion.

      . Effective January 1, 1976 Rule 353 was amended to eliminate notice of appeal as an appellate step except in certain instances.


author: GREENHILL, Chief Justice.

text:
    Joy JONES, Petitioner, v. DEL ANDERSEN AND ASSOCIATES, Respondent.
    No. B-5822.
    Supreme Court of Texas.
    July 14, 1976.

      Schneider & Schneider, R. E. Schneider, Jr., George West, for petitioner.
    Bagby, McGahey, Ross & DeVore, Philip C. Magahey, Arlington, for respondent.
   GREENHILL, Chief Justice.

This suit was brought by Del Andersen, doing business as Del Andersen & Associates, to recover a real estate commission. Suit was brought against Mrs. Joy Jones, the owner of the property for which a purchaser was allegedly procured. Both parties filed motions for summary judgment. The trial court granted Mrs. Jones’ motion and rendered a judgment that the plaintiff Andersen, take nothing. The court of civil appeals reversed that judgment and remanded the cause to the district court. The holding was that a fact issue existed as to whether Andersen had produced a ready, willing and able buyer. Tex.Civ.App., 531 S.W.2d 417. We reverse that judgment and affirm the trial court’s judgment in favor of Mrs. Jones.

Joy Jones owned the Deluxe Motel in Comanche, Texas. In December of 1973, she and Del Andersen & Associates entered into a real estate listing agreement which gave Andersen the exclusive right to list the motel for a period of 360 days. Under this agreement, Mrs. Jones agreed to pay Andersen a commission of 6% of the selling price “in the event that within the listing period: 1) DEL ANDERSEN & ASSOCIATES procures a purchaser for said price . ” Andersen subsequently located a prospective purchaser, Mr. and Mrs. Joseph Gallant, who executed a purchase contract for the motel during the listing period. The contract of sale, however, was never consummated. Andersen brought suit contending that the Gallants were ready, willing and able purchasers, and that he was therefore entitled to his commission.

In support of her motion for summary judgment, Mrs. Jones contended that the suit was barred by the following provisions of Section 28, Article 6573a:

At the time of the execution of any contract of sale of any real estate in this State, the Real Estate Salesman, Real Estate Broker, Real Estate Agent or Realtor shall advise the purchaser or purchasers, in writing, that such purchaser or purchasers should have the abstract covering the real estate which is the subject of the contract examined by an attorney of the purchaser’s own selection, or that such purchaser or purchasers should be furnished with or obtain a policy of title insurance; and provided further, that failure to so advise as herein-above set out shall preclude the payment of or recovery of any commission agreed to be paid on such sale

The uncontroverted evidence establishes that Andersen failed to comply with these provisions. An interrogatory was propounded to and answered by Andersen, as follows:

4. You have attached to your original petition a copy of an instrument marked Exhibit “A” entitled “REAL
ESTATE PURCHASE CONTRACT.” If you have had any other written communication either personally or through your agents or employees to or from Mr. and/or Mrs. Joseph Gallant incident to their alleged agreement to purchase the property involved in this law suit from defendants, then please attach a copy of each such communication to your answers to these interrogatories. If you have not had any other such written communications please so state.
Answer to Interrogatory No. 4
Attached hereto is a copy of a letter dated 3 September 1974, addressed to Mr. John Gleaton, Attorney at Law, in Comanche, Texas, and is the only correspondence that we have received from Mr. and Mrs. Joseph Gallant, with the exception of the real estate purchase contract, a copy of which was attached and marked Exhibit “A” to the Original Petition.
All of our dealings with Mr. and Mrs. Joseph Gallant with the above exception, have been oral and over the telephone and, of course, in person.

In view of the absence of evidence to the contrary, there exists no genuine issue of material fact regarding Andersen’s failure to provide the Gallants with a writing as required by Section 28. See Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969); Gaylord Container Division of Crown Zellerbach Corp. v. H. Rouw Co., 392 S.W.2d 118 (Tex.1965).

The only remaining question is one of statutory construction. If Section 28 is construed to cover the present transaction, Mrs. Jones would be entitled to judgment as a matter of law, and the summary judgment in her favor would be proper. Rule 166-A(c), Texas Rules of Civil Procedure; Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965).

Andersen contends that Section 28 is not applicable. He argues, and the court of civil appeals agreed, that it does not apply where the suit for commission is based upon a listing agreement rather than a contract of sale. Andersen also contends that the purpose of the statute is to protect purchasers of real property; therefore it must be construed to apply only in cases where the purchaser is to pay the commission; and since this suit is against the seller, Section 28 should be no bar.

In determining the meaning of a statute, the dominant consideration is to ascertain the intention of the Legislature. Calvert v. Texas Pipe Line Co., Tex., 517 S.W.2d 777 (1974); Ex Parte Roloff, 510 S.W.2d 913 (Tex.1974); Flowers v. Dempsey-Tegeler & Co., 472 S.W.2d 112 (Tex.1971). This intention is to be found in the language of the statute itself. Calvert v. Texas Pipe Line Co., supra; Railroad Commission of Texas v. Miller, 434 S.W.2d 670 (Tex.1968); Government Personnel Mutual Life Insurance Co. v. Wear, 151 Tex. 454, 251 S.W.2d 525 (1952); Texas Highway Commission v. El Paso Building & Construction Trades Council, 149 Tex. 457, 234 S.W.2d 857 (1950). With these rules of construction in mind, we cannot give Section 28 the limited construction advocated by Andersen. To do so would require that we read into the statute words which are not there. It contains no language indicating that it applies only to commissions which are “payable by purchasers” or which are “based upon a contract of sale.” Instead, the statute precludes “the payment of or recovery of any commission agreed to be paid.

We assume that Section 28 was enacted for the protection of real estate purchasers. By requiring the realtor to notify such persons of the advisability of investigating the seller’s title, the risk of purchasing a worthless or clouded title is reduced. However, this does not mean that the statute applies only where the commission is payable by the purchaser. The Legislature could reasonably conclude that the most effective means of protecting prospective purchasers is to deny the realtor his commission any time he fails to supply the required information. Thus the statute uses the words “any commission.” Likewise, protection is not limited to instances where there is no listing agreement. The need for a warning to the purchaser exists independently of the fact that the realtor and the seller have or have not entered into a separate listing agreement.

In order for Section 28 to serve its intended purpose, it must apply in all cases. To hold otherwise would render the statute ineffectual, by permitting realtors and sellers, in instances where title problems exist, to structure the transaction so as to avoid the requirements of the statute. We do not believe that the Legislature intended such a result. Only where the realtor is wrongfully deprived of the opportunity to comply may he still recover his commission. See Knight v. Hicks, 505 S.W.2d 638 (Tex.Civ.App.1974, writ ref’d n. r. e.).

We recognize that such a statute, construed as it is intended, can lead to harsh results in individual cases. For example, it appears that in the present case the purchasers did in fact seek legal advice concerning the seller’s title, even though Andersen had failed to so advise them. However, when we have determined the legislative intent expressed in unambiguous language, our function is not to question the wisdom of the statute. In the absence of constitutional infirmities, we must apply it as written.

We therefore hold that Andersen’s suit for his commission is barred by Section 28, Art. 6573a. This holding makes unnecessary any discussion of Mrs. Jones’ other points of error.

The judgment of the court of civil appeals is reversed, and the judgment of the trial court is affirmed.

      . Suit was also brought against Charles Jones, the husband of Joy Jones. The trial court granted his motion for summary judgment. The court of civil appeals affirmed. Andersen has filed no application for writ of error complaining of this action. Consequently, Mr. Jones is not a party to this appeal.

      . All statutory references are to Vernon’s Texas Revised Civil Statutes Annotated. All emphasis is ours.

      . Article 6573a has been amended since this case arose. Acts 1975, 64th Leg., p. 533, ch. 216. The substance of Section 28 is now contained in Section 20:
      c) When an offer to purchase real estate in this state is signed, the real estate broker or salesman shall advise the purchaser, or purchasers, in writing, that the purchaser or purchasers should have the abstract covering the real estate which is the subject of the contract examined by an attorney of the purchaser’s own selection, or that the purchaser or purchasers should be furnished with or obtain a policy of title insurance. Failure to advise the purchaser as provided in this subsection precludes the payment of or recovery of any commission agreed to be paid on the sale.

      This amendment, while substantially identical to the prior language, has no application to the present case.

      . This opinion should not be read to imply that the parties in this case had any intention of avoiding the requirements of Section 28. The record contains no such evidence.


text:
    Nola Mae DOUTHIT, Petitioner, v. Marjorie L. McLEROY and Bonnie F. Cooper, Respondents.
    No. B-6043.
    Supreme Court of Texas.
    July 21, 1976.

      Mehl, Williams, Cummings & Truman, B. Michael Cummings, Fort Worth, for petitioner.
    Farrar & Claunch, James R. Claunch, Fort Worth, for respondents.
   PER CURIAM.

Ñola Mae Douthit made application to have the will of her deceased husband, Taylor Denney Barnett, admitted to probate. Marjorie L. McLeroy and Bonnie F. Cooper, the daughters of Ñola Mae Douthit and Taylor Denney Barnett, contested the will on the grounds that Mrs. Douthit had failed to offer the will for probate within four years of the testator’s death as required by Section 73 of the Texas Probate Code. The Probate Court filed findings of fact and conclusions of law that the will had been properly executed and that Mrs. Douthit was not in default in failing to present the will within the statutory period.

The will did not contain the signatures of two witnesses as required by Section 59 of the Texas Probate Code. The witnesses signed a “self proving” affidavit, but not the will itself.

The contestants raised the issue of a lack of proper execution for the first time on appeal. The Court of Civil Appeals reversed, and rendered judgment that the will was void because it was not properly witnessed. It held that the trial court committed fundamental error in admitting the will to probate. 535 S.W.2d 771 (1976).

It was error to admit the will to probate, Boren v. Boren, 402 S.W.2d 728 (Tex.1966); McGrew v. Bartlett, 387 S.W.2d 702 (Tex.Civ.App.1965, writ refused); In re Estate of Pettengill, 508 S.W.2d 463 (Tex.Civ.App.1974, writ ref’d n. r. e.). It was therefore unnecessary for the Court of Civil Appeals to reach the question of fundamental error. The issue of improper attestation was properly before the Court of Civil Appeals. The burden of proving the will valid was on the proponent, Mrs. Douthit. The contestants were not under the burden to prove it invalid. Cullinan v. Cullinan, 154 Tex. 247, 275 S.W.2d 472 (1955). The trial was to the court rather than to a jury, and the contestants needed no motion for new trial to preserve their error for appeal. Texas Rules of Civil Procedure 324, Boswell v. Handley, 397 S.W.2d 213 (Tex.1966). The point was properly preserved by point of error in the Court of Civil Appeals. The contestants’ failure to plead that the will was not properly executed or file a motion for new trial does not oust the court of jurisdiction to consider points which attack the findings and judgment of the trial court. Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156 (1950).

We therefore agree with the judgment of the Court of Civil Appeals that the will was improperly admitted to probate. It is unnecessary to reach the question that the will is “void,” or whether there would have been fundamental error if the burden had been upon the contestant to raise the point in the trial court. See Crane v. Pierce, 257 S.W.2d 510 (Tex.Civ.App.1953, writ refused).

The Application for Writ of Error is refused, no reversible error.

      . The will was executed before the new section 59 was effective and while Art. 8283 was in effect. References are to Vernon’s Texas Civil Statutes Annotated.

      . Ordinarily fundamental errors are those errors which directly and adversely affect the public interest or errors in assuming jurisdiction when there is none. Newman v. King, 433 S.W.2d 420 (Tex. 1968); Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947).


text:
    Marcello GALLEGOS, Appellant, v. TRUCK INSURANCE EXCHANGE, Appellee (two cases).
    Nos. A3775, A3803.
    Court of Civil Appeals of Texas, San Antonio.
    June 9, 1976.
    Rehearing Granted July 14, 1976.
    Karl Dorr, San Antonio, for appellant.
    Robert B. Summers, San Antonio, for ap-pellee.
   PER CURIAM.

On May 25, 1976, appellant filed his motion for an extension of time to file the record in his appeal from a judgment non obstante veredicto entered on March 22, 1976. The record was due to be filed on or before May 21, 1976. Rule 386, Tex.R. Civ.P. In support of said motion, it is averred by appellant’s attorney “that in the afternoon of May 21, 1976, the file of Mar-cello Gallegos, containing the transcript and statement of facts was placed with a number of closed files by an employee of this firm and shortly thereafter taken to a storage area in a separate part of the office facility.” It was further averred that the transcript and statement of facts were not located until Tuesday, May 25, 1976.

Rule 21c, Tex.R.Civ.P., effective January 1, 1976, provides in part that the failure of a party to timely file a transcript or statement of facts in the court of civil appeals will not authorize a loss of the appeal if the defaulting party files within fifteen days of the last date for timely filing “a motion reasonably explaining such failure.”

We agree that a lost record constitutes a reasonable explanation for failure to timely file same providing that no lack of diligence is otherwise shown. Here the transcript was delivered to appellant’s attorney on April 5, 1976, and the statement of facts was certified by the court reporter on April 9, 1976. No explanation, reasonable or otherwise, has been given why the completed record was not filed prior to the last day. It was a calculated risk that it could become lost or misplaced if kept by appellant’s attorney for over thirty days without filing it. In this situation, appellant has failed to give a reasonable explanation for his failure to timely file the record.

The motion for extension of time is denied.

ON MOTION FOR REHEARING

On June 9, 1976, we denied appellant’s motion for extension of time for filing the record and held that appellant offered no “reasonable explanation” under Rule 21c for not filing a record which became misplaced while in possession of appellant’s attorney. We held that there was a calculated risk that the record would become lost or misplaced when it was kept by appellant’s attorney for over thirty days without filing it.

Appellant has now filed a motion for rehearing, wherein it is asserted that the record was not promptly filed by the attorney because he was not able to begin work on the brief because of the press of his trial docket. He planned to file the record on the sixtieth day so as to have maximum time available for preparing his brief.

Under the provisions of Rule 386, which governed extensions of time prior to the adoption of Rule 21c, it was necessary for the appellant to show good cause why said record could not be filed within sixty days. See Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952); Thompson v. Carter, Jones, Magee, Rudberg, Moss & Mayes, 514 S.W.2d 131 (Tex.Civ.App.—Dallas 1974, no writ); Watson v. Sellers, 477 S.W.2d 678 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ); Pollard v. American Hospital and Life Insurance Co., 472 S.W.2d 116 (Tex.1971). The harshness of this restrictive rule undoubtedly led to the adoption of Rule 21c with the accompanying amendment to Rule 386.

Rule 21c provides that the failure to timely file a record in the court of civil appeals will not authorize dismissal of the appeal if the defaulting party timely files a motion reasonably explaining his failure to meet the filing deadline. It has been held that a reasonable explanation is “any plausible statement of circumstances indicating that failure to file within the sixty-day period was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance.” Mulloy v. Mulloy, 538 S.W.2d 818, 1 Texas Court Reports 24 (Tex.Civ.App.—Houston [14th Dist.] 1976); Stieler v. Stieler, 537 S.W.2d 954 (Tex.Civ.App.—Austin 1976). While we recognize that some definitions of the word “inadvertence” include negligence, we express no opinion as to whether a negligent failure to timely file a record is a reasonable explanation under Rule 21c. Here there is no showing of negligence.

Rule 386 requires that the record be filed within sixty days from the rendition of the final judgment or order overruling motion for new trial, or perfection of writ of error. It does not require appellant to file the record as soon as possible. Certainly the record would have been filed without question if it had been tendered on the sixtieth day despite the fact that it had been in appellant’s possession for more than thirty days. The failure to timely file was not deliberate or intentional. Appellant was unable to timely file the record because it became lost. This is a reasonable explanation for appellant’s failure to timely file the record.

The motion for extension of time is granted under authority of Rule 21c to prevent loss of appellant’s appeal. The time for filing the record is extended until July 21, 1976.

      . All references to rules are to Tex.R.Civ.P.


author: DIES, Chief Justice.

text:
    Shearn MOODY, Jr., Appellant, v. STATE of Texas, Appellee.
    No. 7830.
    Court of Civil Appeals of Texas, Beaumont.
    June 10, 1976.
    Rehearing Denied July 8, 1976.

      Frank G. Newman, Dallas, A. R. Schwartz, Galveston, for appellant.
    Shannon H. Ratliff, John L. Hill, Atty. Gen., John W. Odams, Jr., Executive Asst. Atty. Gen., Austin, for appellee.
   DIES, Chief Justice.

In 1963, appellant Shearn Moody, Jr., transferred and assigned to Empire Life Insurance Company, an Alabama company, an undivided two-fifths interest of his undivided one-eighth life interest in the income from a trust created by Libbie Shearn Moody. He received therefor a debenture in the amount of $221,000. Empire became insolvent, and in June 1972 the Circuit Court for the Tenth Judicial Circuit of Alabama placed it in receivership. The domiciliary receiver (John G. Bookout, Commissioner of Insurance of Alabama) was in Alabama since Empire was an Alabama corporation. Because of the trust above alluded to, an ancillary receivership was instituted in Texas.

A reinsurance agreement (termed in Alabama “Protective Treaty”) was effected wherein the Empire receiver agreed to transfer to Protective Life Insurance Company of America (Birmingham, Alabama) all of Empire’s assets (except $2,000,000 retained for expenses) including the trust assignment. Thereafter, appellant Shearn Moody, Jr., as plaintiff sought declaratory relief that Empire had no right to transfer or assign the trust to Protective under the treaty or reinsurance agreement. His contention was rejected. Moody v. Moody National Bank of Galveston, 522 S.W.2d 710 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.).

The Protective treaty or reinsurance agreement, which was approved by the courts, placed a limited moratorium on the payment of cash values under the Empire policies at thirty-five percent, meaning the policyholders could initially withdraw only sixty-five percent of the cash values built up under their policies. Thereafter the receiver, the Texas ancillary receiver, and Protective in an agreement entitled “Agreement to Effectuate Treaty of Assumption and Bulk Reinsurance” agreed to increase the moratorium by fifteen percent. This agreement has not been approved by the Texas court. The case we review is a contention by Shearn Moody, Jr., that the failure to obtain court approval of this last agreement (the fifteen percent increase) makes it invalid. The trial court granted Empire’s ancillary receiver a summary judgment, from which Moody perfects this appeal.

Under the Texas Insurance Code, the same rights, duties, and liabilities apply to an ancillary receiver as well as a domiciliary receiver. Tex.Ins.Code Ann. art. 21.28, § 13 (1963).

Sec. 2(e) of Tex.Ins.Code Ann. art. 21.28 (1963) directs the receiver to conduct the business of the company “subject to the direction of the court.” We believe that the fifteen percent moratorium increase is not perfunctory and should be approved by the Travis County District Court. However, it is undisputed that appellant is not a policyholder of Empire. We find no pleadings or proof that he is a stockholder. Therefore, we hold he has no standing in court to make this contention and affirm the summary judgment. For a person to maintain an action in court, it must be shown that he has a justiciable interest in the subject matter in litigation, either in his own right or in a representative capacity. See authorities in 44 Tex.Jur.2d Parties § 7 at 145 (1963). See also Dean v. Maxwell, 173 S.W.2d 246 (Tex.Civ.App.—Eastland 1943, no writ).

AFFIRMED.

STEPHENSON, J., not participating.