author: TITUS, Judge.

text:
    Terry Powers FORD, Plaintiff-Respondent, v. Audrey MONROE and Farmers and Merchants Insurance Company, a corporation, Defendants-Appellants.
    No. 10438.
    Missouri Court of Appeals, Springfield District.
    Dec. 6, 1977.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 1977.

      Robert A. Dempster, Phillip J. Barkett, Jr., Dempster, Yokley, Fuchs & Barkett, Sikeston, for plaintiff-respondent.
    J. Lee Purcell, Hyde, Purcell, Wilhoit & Edmundson, Poplar Bluff, for defendants-appellants.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Plaintiff sued defendant Audrey Monroe (Monroe) and Monroe’s automobile liability insurance carrier, defendant Farmers & Merchants Insurance Company (Farmers), to recover damages plaintiff had sustained as the result of having been shot by an unknown assailant. Count I of the petition prayed for a $25,000 judgment against Monroe because of that defendant’s alleged negligence. Count II asked for a $25,000 judgment against Farmers under the Uninsured Motorist provision of its policy. Count III sought a $500 judgment against Farmers under the Medical section of the policy. After a jury-waived trial, the court entered judgment for plaintiff as follows: $35,000 on Count I; $10,000 on Count II; and $500 on Count III. (The apt reader will see that the sum awarded on Count I exceeded the petition prayer by $10,000). Defendants appealed.

On the date in question plaintiff and Monroe, respectively 26 and 30 year old white females, were traveling on Route DD in Scott County in a 1965 Plymouth automobile owned and driven by Monroe. Monroe had obtained her driver’s license only two months before. Plaintiff, seated on the right side of the front seat, was the sole passenger. Route DD is described as being a two-lane, blacktop east-west road.

As the westbound Plymouth passed through Vanduser shortly after midnight en route to Bloomfield, an “old model” Ford drove off a side street, pulled in behind the Plymouth and followed it “around four miles,” during which time, plaintiff said, “[tjhey was blinking their lights on and off trying to get us to stop the car.” Plaintiff testified, denied by Monroe, that Monroe wanted “to stop and asked them what they wanted, and I kept repeating [to] her not to stop the car, that I was afraid we were going to be hurt.” Neither plaintiff nor Monroe at this time or later knew the identity or number of persons occupying the Ford. Eventually, the Ford overtook and passed the Plymouth and stopped on a “floodway bridge” blocking the roadway. Monroe stopped the Plymouth and started to “move the car backwards” toward the east. At this time plaintiff said “[t]he colored people”, who had gotten out of the Ford, “got in their car and pulled over a little” and turned around headed east. The record indicates that Monroe was not then aware that “colored people” occupied the Ford. When the Ford commenced to travel east, Monroe started forward (westward) across the bridge. After the Ford was to the rear of the Plymouth, it was turned around so that it was again traveling west. Plaintiff testified that the Plymouth had “just started to move . . . slowly forward” when the Ford came alongside of the Plymouth. This was the first time either plaintiff or Monroe saw that an occupant of the Ford had a gun. Monroe recounted that after the Plymouth crossed the bridge she was driving 50 to 60 miles an hour, but when the Ford pulled alongside she was driving 40 miles an hour because she “hadn’t been driving very long [and] I didn’t want to lose control of the car.” Monroe also testified she was unaware that “it was blacks in the” Ford until “I saw this one black face when the [Ford] drove up right alongside of us.” Just as the Ford came abreast of the Plymouth, two shots were fired from the Ford in rapid succession. The first shot broke the left door glass of the Plymouth and the bullet struck Monroe on the left side of her head. The second bullet apparently traveled through the broken window and struck the plaintiff. There was no physical contact between the two vehicles, and Monroe managed to keep the Plymouth under control so that it did not collide with any object after the shooting.

Count I

Monroe’s alleged negligence purportedly occurred between the time when the Ford, after being stopped ahead of the Plymouth, was driven off the floodway bridge and turned around and the time when the Ford, having been turned around again at the rear of the Plymouth, was driven westward alongside of the Plymouth and the shots fired. In summary, plaintiff says “that but for the action or inaction of Monroe [during the aforesaid period] in failing to cause her motor vehicle to leave the scene at a fast speed, to do everything that she could to protect her passenger, the [plaintiff] would not have been injured.”

In its conclusion of law, with which we disagree in part, the trial court said: “The law in Missouri is that a driver of a vehicle owes a passenger a duty to exercise the highest degree of care for the safety of the passenger. Where a situation arises that indicates a situation where danger is present or can be reasonably anticipated, the driver must take such steps as are available to protect the passenger. The defendant Monroe did not, in this case and under the facts shown in the evidence, exercise the highest degree of care for the protection of plaintiff Ford.” This conclusion of the trial court was predicated on its finding of fact that when “the unidentified vehicle [the Ford] pulled up next to [Monroe’s Plymouth,] the Monroe vehicle was either stopped or moving very slowly.”

In Hay v. Ham, 364 S.W.2d 118, 122 [1-2] (Mo.App.1962), Judge Cross observed that the underlying purpose of subsec. 1 of Sec. 304.010 , V.A.M.S., “is the protection of life, limb and property of all persons from destruction or damage resulting from the operation of motor vehicles on the public highways ” and that it is a court’s duty to reasonably interpret the statute “so that the legislature’s purpose in enacting that law shall prevail and not so as to defeat the obvious intention of the lawmakers.” (Our emphasis). The statute, in our view, was intended to require operators of motor vehicles upon the highways to exercise the highest degree of care to save all persons from harm proximately resulting from the operation of those vehicles. If the harm sustained does not proximately arise from the operation of the vehicle on the highway but is proximately caused by a criminal attack of third persons, it is our opinion that any attempt to impose upon the operator the duty to exercise the highest degree of care to protect a passenger from such a criminal attack would be an unauthorized interpolation of the law and a corruption of the General Assembly’s purpose in enacting the statute.

Absent special circumstances or relationships not present here, it is the general rule that a private person has no duty to protect another from a deliberate criminal attack by a third person. Annot., 10 A.L.R.3d 619, 626 et seq. A cause of action for negligence, if successful, depends (a) upon defendant’s breach of a duty to exercise the required quantum of care to avoid injury to plaintiff, and (b) upon damage or injury suffered by plaintiff as a proximate consequence of the violation of that duty. 57 Am.Jur.2d, Negligence, § 64, at p. 415. A fortiori, if no duty exists, there can be no violation of a duty upon which to predicate a recovery. On the other hand if it be assumed, arguendo, that defendant was negligent in the first instance, it is a general principle that if a criminal act by a third person intervenes and produces plaintiff’s injury which was not intended by defendant and could not have reasonably been foreseen by him, the causal chain between the defendant’s negligence and the plaintiff’s injury is broken. Sira v. Wabash Ry. Co., 115 Mo. 127, 21 S.W. 905 (1893); 57 Am.Jur.2d, Negligence, § 206, pp. 580-583. Or, as otherwise expressed in Restatement, Second, Torts § 448: “The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.” Comment a., under § 448, states, inter alia: “Under the rule stated in this Section, the actor is not responsible for the harm thus inflicted [by a third person] merely because the situation which his negligence has created has afforded an opportunity or temptation for its infliction.”

Should we presuppose, for reasons not clear to us, that Monroe was negligent under the circumstances because she did not attempt to outdistance the Ford by suddenly accelerating the Plymouth to unknown and undetermined high rates of speed, her omission to so do neither supplied nor set in action any dangerous instrumentality or agency. The omission merely created a situation which made it less difficult than it otherwise would have been,for the assailants to inflict the harm. Plaintiff's injuries and damages resulted from a violent and malicious act of unknown assailants for some purpose not disclosed. The crime committed by the assailants was not foreseeable by Monroe and did not originate with Monroe or with the manner in which she operated the Plymouth. Fraser v. Chicago, R.I. & P. Ry. Co., 101 Kan. 122,165 P. 831, 833[1] (1917). The judgment nisi as it relates to Count I is reversed.

Count II

Farmers’ policy written on the Monroe Plymouth provided “Protection Against Uninsured Motorists.” By its policy, Farmers contracted: “To pay all sums which the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . . . sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile.” The word “insured” was defined to include “(b) any other person while occupying an insured automobile.” The term “uninsured automobile . . . means: . . .(b) a hit-and-run automobile [and] ‘hit-and-run automobile’ means an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident.”

There was no physical contact between the Ford and the Plymouth. The Ford was unidentified except as being an “old model” Ford, making it but one of a legion. The driver and occupants of the Ford were unknown. Under these circumstances the “hit-and-run” provisions of Farmers’ policy, supra, is of no benefit to plaintiff because it is expressly and unambiguously limited to situations where bodily injuries arise “out of physical contact of [the uninsured] automobile with the insured or with an automobile which the insured is occupying at the time of the accident.” Ward v. Allstate Insurance Company, 514 S.W.2d 576, 578 (Mo. banc 1974). Furthermore, as the other driver and vehicle were unidentifiable, the provisions of the “Uninsured Motorist Statute,” § 379.203, V.A.M.S., offer no assistance to plaintiff. Ward, supra, at 579[3].

The fact that the unknown assailant’s first bullet struck and broke the door glass of the Plymouth, or the fact that his second bullet struck and injured plaintiff, affords plaintiff no succor for two reasons. As noted, the “hit-and-run” policy provisions require physical contact by the uninsured automobile with either the plaintiff or the Plymouth. Neither bullet qualified as an uninsured automobile any more than did a bottle tossed from an unknown automobile which struck an insured vehicle and injured its driver. Aetna Casualty & Surety Company v. Head, 240 So.2d 280 (Miss.1970). Likewise, it cannot be properly said that the bullet-injury sustained by plaintiff was “caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile.” Mazon v. Farmers Insurance Exchange, 107 Ariz. 601, 491 P.2d 455 (banc 1971), vacating opinion reported in 13 Ariz.App. 298, 475 P.2d 957 (1970). The Supreme Court of Arizona said in Ma-zon, supra, 491 P.2d at 457[1]: “ . we can find no causal relationship between an injury resulting from a stone thrown by an unknown person from an unidentifiable vehicle, and the ownership, maintenance or use of that vehicle. Therefore under the facts presented, [plaintiff] is not entitled to recover under [the uninsured motorist provisions] of the insurance contract.” The judgment nisi as it relates to Count II is reversed.

Count III

The medical payment coverage has not been submitted or argued on appeal. We treat any complaints that Farmers may have had as to Count III as abandoned. The judgment nisi as it relates to Count III is affirmed.

Respondent’s motion to dismiss or to limit issues heretofore filed and taken with the case is denied.

For the reasons stated, the judgment as it relates to Counts I and II is reversed but is affirmed as it relates to Count III. Accordingly, the cause is remanded to the trial court to enter judgment in favor of defendant Audrey Monroe and against plaintiff on Count I of the petition, in favor of defendant Farmers and Merchants Insurance Company and against plaintiff on Count II of the petition, and in favor of plaintiff and against defendant Farmers and Merchants Insurance Company in the sum of $500 on Count III of the petition.

All concur.

      . Sec. 304.010-1. Every person operating a motor vehicle on the highways of this state shall drive the vehicle in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    ALLIS-CHALMERS CREDIT CORPORATION, a Wisconsin Corporation, Plaintiff-Respondent, v. Johnny BAKER, Defendant-Appellant.
    No. 10770.
    Missouri Court of Appeals, Springfield District.
    Dec. 8, 1977.

      Robert W. Evenson, Pineville, for plaintiff-respondent.
    Abe R. Paul, Paul & Paul, Pineville, for defendant-appellant.
   PER CURIAM:

Plaintiff brought suit to recover damages arising from the breach of an installment sale contract concerning an Allis-Chalmers mower-conditioner. Plaintiff proposed that a writ of replevin be issued, that the mower-conditioner be sold and that judgment be entered for any deficiency remaining under the contract. Defendant answered and filed a two-count counterclaim seeking damages for breach of warranty and misrepresentation.

Trial began on April 26, 1977. The case was taken under advisement by the court, and on May 2,1977, the following entry was made:

“JUDGMENT
Now, on this 26th day of April, 1977, the plaintiff appears by and through its attorney, Robert W. Evenson, and the defendand [sic] appears by and through his attorney, Abe R. Paul, and both parties announce ready, and trial by court; the court having heard evidence and taken this matter underadvisement [sic] does on this 2nd day of May, 1977, enter the following judgment:
1. The Court finds the issues on the plaintiff’s petition in favor of the plaintiff, and against the defendant.
It is hereby ordered, decreed and adjudged that the plaintiff have judgment against the defendant in the sum of $1,528.95, principal and in the sum of $3]5.00 [sic] for attorney fees, for an aggregate judgment in the amount of $1,843.95; it is further ordered, decreed and adjuged [sic] that the costs of this action be taxed against the defendant.
It is further adjudged by the Court that the prayer for Writ of Replevin is denied.”

In Missouri, appellate review is purely statutory and § 512.020, V.A.M.S., grants this right of appeal only where the judgment constitutes a final determination of all issues framed by the pleadings. Cochran v. DeShazo, 538 S.W.2d 598, 600[3, 4] (Mo.App.1976). The quoted judgment fails to dispose of appellant’s counterclaim.

The appeal is premature and is dismissed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Gary Michael ASBERRY, Defendant-Appellant.
    No. 10465.
    Missouri Court of Appeals, Springfield District.
    Dec. 8, 1977.

      John D. Ashcroft, Atty. Gen., Walter O. Theiss, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    David G. Neal, Eminence, for defendant-appellant.
   TITUS, Judge.

Per information filed in the Circuit Court of Reynolds County, defendant was charged with having committed first degree burglary as denounced by § 560.040, V.A.M.S. A jury found him guilty and fixed the minimum punishment, i. e., five years’ imprisonment. § 560.095, V.A.M.S.

The pertinent portions of the information alleged that on August 3, 1975 (a Sunday), defendant did “[wjilfully, intentionally, unlawfully and feloniously, break and enter the occupied dwelling house of another, namely Gerald Massie, in which there were at the time several human beings, with the intent then and there to commit a felony therein, namely, rape.” On appeal, defendant’s first Point Relied On is that the information was not sufficient to sustain a conviction of burglary in the first degree. We agree.

Citing and quoting State v. Wilson, 225 Mo. 503, 513, 125 S.W. 479, 482 (1910) and State v. Tutt, 63 Mo. 595, 601 (1876), it was said in State v. Young, 345 Mo. 407, 410,133 S.W.2d 404, 406[4] (1939): “ ‘An indictment [or information] for burglary in the first degree . . . must state, not only the breaking and entering into a dwelling house in which at the time there was a human being, with intent to commit some felony or [stealing], but that such breaking and entering was effected in one of the modes specified in that section. The manner of breaking into a dwelling house is one of the ingredients of burglary in the first degree.’ ” State v. Faber, 499 S.W.2d 790, 792 (Mo.1973); State v. Johnson, 454 S.W.2d 27, 29[1] (Mo.1970); State v. Zammar, 305 S.W.2d 441, 443[4] (Mo.1957); State v. O’Brien, 249 S.W.2d 433, 434[1] (Mo.1952), cert. den. 344 U.S. 859, 73 S.Ct. 100, 97 L.Ed. 667; cf. State v. Johnson, 537 S.W.2d 816, 818[1] (Mo.App.1976).

Although the information, supra, charged that there was a felonious breaking and entering of an occupied house of another with the intent to commit a felony, “[i]t does not charge a forcible bursting or breaking of the door or the lock or bolt thereof, under the first subdivision of the section; [nor a breaking, being armed with some dangerous weapon or with the assistance of a present confederate, under the second subdivision]; nor an unlocking of the door by means of false keys or by picking the lock, under the third subdivision. While the information may be sufficient to charge burglary in the second degree, we are forced to hold it is fatally defective as a charge of burglary in the first degree.” State v. Young, supra, 133 S.W.2d at 406-407[5].

Defendant next challenges the sufficiency of the evidence to sustain a conviction of burglary in the first degree. We shall see.

In the early morning hours of the date in question, i. e., 12:30 a. m. to 2 a. m. depending on whose testimony is accepted, Gerald and Virginia Massie (husband and wife), Jim Massie (Gerald’s son by a prior marriage) and Suzette Howard (Virginia’s 16-year-old daughter by a previous marriage) were abed in the Massie home situate in Ellington. Suzette was asleep in a basement bedroom located in the southeast portion of the dwelling. The bedroom had two windows of unknown size. The south window, covered by a screen, was open. When Jim was preparing for bed, he saw a Chevrolet automobile parked in the driveway leading from the house to “North-south Road.” The car’s parking lights were burning and its “motor was running.” Jim heard “some voices coming from there.” Although who owned the automobile was never proved, the questions asked and the answers given at trial assumed that defendant owned the vehicle. Nevertheless, defendant denied he had been in the car at any pertinent time.

Suzette was awakened by “a scraping or ripping noise at the [south] window.” She “sat up in bed and listened[,] asked who was there [and] they [sic] said it was a friend.” According to Suzette, the voice was that of a “male.” The speaking person “said something to someone else later [and] I think I saw another person behind him, I’m not sure.” After “[t]wo or three minutes,” during which time Suzette had some unremembered conversation with the person or persons outside the window, she saw a naked foot sticking some six or eight inches through the window screen into the basement bedroom via an “L-shape [cut in the screen] about eight inches one direction, and about six the other.” She could not “tell whether it was a male or female foot.” After observing the naked foot, Suzette “ran out of the room and screamed.” Suzette could not identify anyone who may have been outside of the opened window.

Responding to Suzette’s scream, Gerald and Jim went to the basement and were given a curt critique of the foregoing. They went outside the house but found no one. Gerald found “one pair of [men’s] pants [and] two boots . . . on a concrete slab at the north end of the house underneath the porch.”

After dressing, Jim drove the Chevrolet up by the house, locked it and took the keys. Subsequently, Jim heard a noise 300 to 400 yards south of the house. Arming himself with a “piece of pipe,” he went to investigate. About 100 yards south of the house, Jim encountered defendant at an “apartment building.” Defendant, “naked and intoxicated, . . . was carrying a small pillow [and] was rather incoherent.” Over numerous objections, Jim testified that when he asked defendant “if he tried to enter the house and why,” the defendant “[i]n substance” responded “that he had committed the act and his tone was apologetic [or] something in the nature he hadn’t meant anything by it and he was sorry.”

Directing defendant to stay where he was, Jim returned to the house and retrieved the trousers found there. Jim and his father returned to where defendant waited. With considerable difficulty, defendant donned the pants, wrong side out and backwards.

Six or seven years previously, Suzette (then nine or ten years old) had casually known defendant (age never shown) when he mowed the lawn for her (presumably) natural parents. Suzette had never “dated” defendant. Neither had she “ever associate^] with him socially.” She testified she had not seen defendant “that night.” Subsequent night and daylight searches of defendant and the involved areas by various individuals failed to discover any “dangerous weapon” or any instrumentality which might have been employed to cut the screen, etc. We deem it reasonable to conclude, as defendant’s and others’ testimony indicated, that defendant was exorbitantly intoxicated at the times in question.

The presence of any part of an alleged burglar’s body within the premises is enough entry to prove one essential element of a charge of burglary. State v. Maddox, 465 S.W.2d 607, 609[1] (Mo.1971); State v. Watson, 383 S.W.2d 753, 756[4] (Mo.1964); State v. Tierney, 371 S.W.2d 321, 323[3] (Mo.1963). Although there was no evidence of the size of the basement window opening or proof to indicate that the opening minus the screen was sufficiently large to admit defendant into the house, nevertheless, based on the just-cited authorities, if we accept the jury’s apparent finding that the naked foot stuck through the L-shaped cut in the screen was that of the defendant, we are constrained to the conclusion that there was proof of an entry.

However, mere entry does not itself constitute burglary. In this case it was necessary to prove that the entry was made to commit the felony of rape. To sustain such a charge, the proof must show beyond a reasonable doubt that defendant intended not merely to have sexual intercourse with the girl but also to use whatever force was necessary to overcome her resistance. State v. Brown, 217 S.W.2d 546, 548[5] (Mo. 1949); Brown v. State, 94 Tex.Cr.R. 140, 250 S.W. 170, 172 (1923); Hays v. State, 86 Tex.Cr.R. 469, 217 S.W. 938[3] (1920); Sedgwick v. State, 57 Tex.Cr.R. 420, 123 S.W. 702, 703-704 (1909); Mason v. State, 47 Tex.Cr.R. 403, 83 S.W. 689[1] (1904); Mitchell v. State, 32 Tex.Cr.R. 479, 24 S.W. 280, 281[1] (1893); Walton v. State, 29 Tex.App. 163, 15 S.W. 646, 647 (1890). The intent with which an accused breaks and enters is an essential element of the offense of burglary and must be established by evidence beyond a reasonable doubt. State v. Shipman, 354 Mo. 265, 269, 189 S.W.2d 273, 275[2] (1945).

Pared to the bone, these are the facts: Suzette was awakened by a noise while abed in her basement bedroom. She engaged in a two or three minute innocuous conversation (at least she could not remember its context) with one or more unidentified male persons positioned outside the screened basement window. The size of the window’s opening is unknown, but the later discovered L-shaped cut in the screen was of insufficient proportion to permit entry of a normal sized adult male. Upon espying a naked foot of unknown sex being put through the cut in the screen, Suzette forsook her bed, ran from the room and screamed. Posthaste, the possessor of the unadorned foot withdrew it from the opening and hied himself away. Subsequently, defendant, suffering the throes of extreme inebriety and accompanied only by a pillow, was discovered 100 yards from the allegedly burgled premises. Intoning his apologies and awaiting, as directed, the return of his captor, defendant with difficulty donned a proffered pair of pants wrong side out and backwards.

Albeit conceded that defendant may have desired sexual intercourse with Suzette, nothing appears of record to indicate that he was intent upon employing whatever degree of force which may have been necessary to accomplish his wants. When defendant’s desires were apparently discovered by Suzette and she manifested a disliking therefor, defendant immediately withdrew his foot and fled. If defendant had intended to force himself upon Suzette in any event, situate and armed as he seemingly was, it appears incredible that he would have first engaged her in two or three minutes of harmless conversation and then put a naked foot through an insufficient opening in the screen to telegraph his desires. It does not appear that the means allegedly employed by defendant were adapted to secure the end desired in any event. We can only arrive at the defendant’s intentions by his acts and conduct. Regardless of how reprehensible defendant’s conduct may have been, the evidence does not disclose that he intended to commit the crime of rape at all costs.

As it is evident that the state presented all available evidence pertinent to the issues and failed to make a submissible case, the judgment below is reversed and the defendant is discharged.

All concur.

Addendum

The state has filed a motion (taken with the case) to strike certain portions of defendant’s brief on appeal because the involved points relied on were not raised in the motion for a new trial. As the motion relates to the claimed error regarding the information, Rule 28.02, Y.A.M.R., mandates that “[ajllegations of error respecting the sufficiency of the information . . shall be considered upon an appeal although not raised in the trial court or preserved for review.” In addition, if the evidence is insufficient to sustain the conviction, plain error affecting substantial rights is involved and we are required to note this sua sponte. Rule 27.20(c), V.A.M.R.; State v. Potter, 530 S.W.2d 268, 269[1] (Mo.App.1975). Our disposition of the appeal, supra, renders the other portions of the state’s motion moot. The motion is denied.

      . Sec. 560.040. Every person who is convicted of breaking into and entering the dwelling house of another, in which there is at the time some human being, with intent to commit some felony or to steal therein, either: First, by forcibly bursting or breaking the wall or outer door, window or shutter of a window of such house, or the lock or bolt of such door, or the fastening of such window or shutter; or, second, by breaking in any other manner, being armed with some dangerous weapon, or with the assistance and aid of one or more confederates, then actually present, aiding and assisting; or third, by unlocking an outer door by means of false keys, or by picking the lock thereof, shall be adjudged guilty of burglary in the first degree.

      . As noted in State v. Brown, supra, 217 S.W.2d at 548, the rule as announced by the reported Texas cases “is the same as in” Missouri. See the later Texas case, Baldwin v. State, 153 Tex.Cr.R. 19, 216 S.W.2d 985, 986-987[1-3] (1949).


text:
    James BROWN and Elma Brown, his wife, Plaintiffs-Respondents, v. Lloyd G. BRIGGS and Juanita Briggs, his wife, Defendants-Appellants.
    No. 10674.
    Missouri Court of Appeals, Springfield District.
    Dec. 12, 1977.
    James E. Reeves, Ward & Reeves, Ca-ruthersville, for plaintiffs-respondents.
    Weber Gilmore, Gilmore & Gilmore, Sike-ston, for defendants-appellants.
   PER CURIAM:

We must consider the following chronology-

January 18, 1977 — In accordance with jury verdicts, the trial court entered judgment, inter alia, in favor of plaintiffs and against defendants on plaintiffs’ petition in the sum of $18,000.

April 18, 1977 — The trial court overruled defendants’ after trial motions.

May 2, 1977 — Defendants’ notice of appeal (dated April 29, 1977, or on the 11th day after the judgment became final) was filed on the 14th day after the judgment became final.

Rule 81.04, V.A.M.R., mandates that “No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.” Since defendants’ notice of appeal was neither dated nor filed within the time required, we do not have jurisdiction to entertain defendants’ appeal. Ellebracht v. Burger Chef Systems, Inc., 543 S.W.2d 503, 504[2] (Mo.App.1976); Budget-Easy, Incorporated v. Burd, 539 S.W.2d 740, 741[2, 3] (Mo.App.1976); Phillips v. Frazier, 537 S.W.2d 251 (Mo.App.1976).

Defendants’ appeal is dismissed.

ALL CONCUR.


author: HENRY, Justice. HARBISON, Justice,

text:
    Lee Artis MOTEN, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Dec. 12, 1977.
    A. Kemp Stallings, Asst. Public Defender, Memphis, for petitioner.
    Brooks McLemore, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., Richard McNeese, Asst. Atty. Gen., Memphis, for respondent.
   OPINION

HENRY, Justice.

The sole question before the Court is whether the trial judge abused his discretion in denying petitioner’s application for a suspended sentence and the Court of Criminal Appeals erred in affirming the action of the Trial Judge.

Petitioner was indicted for grand larceny and receiving and concealing stolen property. He entered a plea of guilty to a reduced charge of petit larceny and received a workhouse sentence of nine months. He filed his petition for probation and the trial judge conducted a full evidentiary hearing.

The trial judge predicated his action in denying probation upon three factors, viz.:

a. the manner in which this matter occurred and the amount involved;
b. the deterrent effect of denial;
c. the reduction of the charge to petit larceny.

The Court of Criminal Appeals deemed these reasons to be sufficient and held that there was “no indication of arbitrary action on the part of the trial judge” and that he did not abuse his discretion. We disagree.

i.

Petitioner, at the time of the commission of the underlying offense, had been employed by William R. Moore, Inc. (Moore), of Memphis for approximately two years in its carpet department. He was approached by a co-worker (later a co-defendant) in a scheme to ship carpeting out under a fictitious or “dummy” bill of lading. Initially he did not agree to enter into this plot but after thinking it over for two or three days and after being offered $300.00 for his cooperation and participation he agreed. The result was that carpeting having an approximate value of $3,000.00 was taken wrongfully from the warehouse.

All the stolen merchandise was later recovered and there was no violence in connection with the taking. After the investigation focused upon him, he voluntarily surrendered to the authorities and made a full confession.

Petitioner’s background and social history are excellent — perhaps even outstanding. He served honorably on active duty with the United States Marine Corps and is currently an active member of its reserve. During his two-year employment with Moore he encountered no problems and his work was satisfactory.

His probation report which appears in the transcript shows that he has no criminal record and no alcoholic or drug involvement.

He was approximately twenty-two years of age at the time of the commission of the offense — perhaps nearer to his twenty-third birthday. He is married and has two children. He owns his own home, upon which he makes regular payments.

Since leaving the employ of Moore, he has not had regular employment. He is supporting his family on educational benefits received through the Veterans Administration for night-time studies and from his drill pay as a member of the Marine Corps Reserve.

After his confession, according to the probation report and to witnesses, he suffered emotionally and showed substantial remorse over his conduct. He went to his employer and apologized. The probation report and the testimony of witnesses conclusively establish his honest desire to reform and rehabilitate himself. The record shows him to be an exemplary husband and father with a stable home life. The parole report shows a stable environment and background.

His attitude was such that the Assistant Attorney General who appeared in opposition to his probation commented that he was “impressed with Mr. Moten’s attitude.”

There is not one scintilla of a suggestion in the probation report, the testimony, the exhibits, or elsewhere in the record of anything in his background or of any circumstance or condition that is unfavorable. He appears in this record as an ideal candidate for clemency. Denial of his petition for probation must be founded upon matters not in the record, or must rest upon a philosophical antipathy toward probation, or upon a misapplication of the policy considerations governing probation.

II.

The public policy of Tennessee favors probation in proper eases. The legislature has given statutory sanction and has provided guidelines. Section 40-2901, T.C.A., contains specific authorization for trial judges “to suspend the execution of sentence and place the defendant or defendants on probation, subject to such conditions as the trial judge may deem fit and proper.”

Sec. 40-2904, T.C.A., specifies the criteria for the Court’s consideration by requiring that the probation report “shall inquire into the circumstances of the offense, criminal record, social history, and present condition of the defendant.”

In our recent case of Stiller v. State, 516 S.W.2d 617 (Tenn.1974), we further amplified this public policy by recognizing that:

The entire theory of probation is that it is in the public interest that those who violate society’s rules of conduct should, in proper cases, be given an opportunity to rehabilitate themselves and to be restored to useful and productive citizenship. More and more our society is coming to realize that “warehousing” criminals on an indiscriminate basis is financially, socially and morally unacceptable.
However, this concept contemplates that probation be restricted to those who are worthy of this largesse of the law. 516 S.W.2d 620.

In Stiller we reiterated the statutory criteria.

Following Stiller the Court of Criminal Appeals in Mattino v. State, 539 S.W.2d 824 (Tenn.Cr.App.1976), further amplified our state’s public policy as follows:

In Stiller the Tennessee Supreme Court lauded probation as a desirable alternative to the indiscriminate “warehousing” of criminals. That probation is many times less costly than incarceration has been amply demonstrated. See Standards Relating to Probation promulgated by the Advisory Committee on Sentencing and Review of the American Bar Association, at 29-30 (Approved Draft, 1970), estimating the cost of probation at one-tenth that of incarceration. Studies indicate that probation as a correctional technique enjoys a statistically high rate of success. See, e. g., People v. McClendon, 130 Ill.App.2d 852, 265 N.E.2d 207, 210 (1970). Such statistics have convinced most professionals in the field, as expressed in the Introduction to the American Bar Association Standards, supra, that:
. probation is a good bit more than the ‘matter of grace’ or ‘leniency’ which characterizes the philosophy of the general public and of many judges and legislatures on the subject. Probation is an affirmative correctional tool, a too! which is used not because it is of maximum benefit to the defendant (though, of course, this is an important side product), but because it is of maximum benefit to the society which is sought to be served by the sentencing of defendants.
* * * * * *
The basic idea underlying a sentence to probation is very simple. Sentencing is in large part concerned with avoiding future crimes by helping the defendant learn to live productively in the community which he has offended against. Probation proceeds on the theory that the best way to pursue this goal is to orient the criminal sanction toward the community setting in those cases where it is compatible with the other objectives of sentencing. Other things being equal, the odds are that a given defendant will learn how to live successfully in the general community if he is dealt with in that community rather than shipped off to the artificial and atypical environment of an institution of confinement. 539 S.W.2d 830.

III.

We apply the statutory — Stiller—Matti-no standards to the undisputed facts in this case.

a. The circumstances of the offense.

A twenty-two year old man was bribed to participate in a $3,000.00 theft. There was no violence and no aggravating circumstance.

b. Criminal Record None
c. Social History Excellent
d. Present Condition Excellent
e. Physical and Mental Health Nothing of significance

When we subject the action of the trial judge to the litmus test of Stiller and the statute, there would appear to be no legitimate justification for a denial of probation. We look to the reasons assigned by the trial judge.

a. The manner in which this matter occurred and the amount involved.

As we have already pointed out there was no violence and the amount involved was not enormous and all was recovered. As the Court of Criminals correctly held in Mattino:

This is not to say that the nature or circumstances of an offense could never provide a sufficient basis for denial of probation. Crimes of violence against the person, or particularly heinous crimes might indeed be the controlling factor in a probation determination. But these crimes are likely to be perpetrated by persons whose backgrounds are largely dissimilar to the defendant’s. In any case, plainly the crime charged here [petit larceny in Mattino and here] is not of such nature nor the circumstances of its commission such as to constitute a legal barrier to probation. 539 S.W.2d 828-829.

The circumstances of the crime were not grossly negative. The young petitioner was verbally enticed, then bribed to commit the offense, wrestled with the decision and finally decided to go along. No physical violence resulted, no firearm was used and the stolen property was recovered.

b. The deterrent effect of denial.
Deterence is not a statutory factor.
Deterrence is not a Stiller criterion.

Reliance upon this factor would defeat the whole concept of probation. While the other factors listed in Stiller may or may not be present or applicable or significant in any given case, deterence is a factor which is uniformly present. Thus, even if all factors gravitate in defendant’s favor in a given case, probation would be defeated by the fact that to suspend the sentence would destroy the conviction’s deterrent value. Reliance on this factor is no more realistic or reasonable than denying probation on grounds that the defendant committed a crime. In fact, the trial judge virtually took that position by stating as one of his reasons for denying suspension to be that he thought the defendant should pay for his crime. This approach by the trial court places retribution above rehabilitation without reason.

c. The reduction of the charge to petit larceny

Again we turn to Mattino wherein this factor was found to be an improper basis for denial of probation:

And to deny probation because the defendant has already been granted a concession in pleading to a lesser offense is likewise unreasonable in light of prevalent plea bargaining practices, especially where, as here, the defendant is a youthful first offender. Plea reduction and other forms of bargaining are as much a matter of convenience to the prosecution as to the defense. Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). To suggest, as does the court below, that their use should preclude subsequent probation can only frustrate both the effectiveness of plea bargaining for the prosecution and the possibility of rehabilitation of the defendant by supervised probation programs. 539 S.W.2d 829.

IY.

It is not the policy or purpose of this Court to place trial judges in a judicial straight-jacket in this or any other area, and we are always reluctant to interfere with their traditional discretionary powers. However, ours is the task of affording a meaningful review; and where the effect of sustaining the denial of a probation would be to defeat the public policy of the state by placing it within the power of a trial judge to deny probation on a basis outside statutory criteria, and without valid reasons, we are left with no choice but to intervene and act in furtherance of the legislative intent embraced in the statutes relating to probation.

We respectfully reverse the decisions of the Trial Judge and the Court of Criminal Appeals and remand to the Trial Court for the entry of an order of probation to include “such conditions of probation as the trial judge shall deem fit and proper.” Sec. 40-2902, T.C.A.; Stiller v. State, supra.

Reversed and remanded.

FONES and BROCK, JJ., concurring.

COOPER and HARBISON, JJ., dissenting.

HARBISON, Justice,

dissenting.

I respectfully dissent. I am unable to agree with the conclusion expressed in the majority opinion that the trial judge abused his discretion in the present case.

Whether probation should or should not be granted to a particular criminal offender is conceded by the majority opinion to be a matter of such great discretion with the trial judge that reversal is warranted only upon a finding of an abuse of that authority and not upon the preponderance of the evidence.

The offender in the present case pled guilty to the larceny of property from his employer. Because of the value of the property, he could easily have been convicted of grand larceny and could have received a much more severe sentence. Considerable leniency was shown by the prosecuting authorities and by the trial judge in the approval of a workhouse sentence of only nine months.

If the petitioner showed remorse for his misconduct, it was made known after he was apprehended, and not during the several months which intervened between the theft and his arrest.

While certainly the written record, as presented on appeal, would justify the conclusion that the petitioner is a proper subject for clemency, an experienced trial judge who saw and heard the petitioner and his witnesses was of a different opinion.

The majority opinion relies heavily upon the recent decision in Stiller v. State, 516 S.W.2d 617 (Tenn.1974), but it must be remembered that in that case the trial judge had granted probation. The record on appeal was found to be incomplete, and the holding of this Court was that the judgment of the trial court should be reinstated.

I am not able to agree with the conclusion expressed in the majority opinion that deterrence is not a factor, either explicit or implicit, which should enter into the thinking of a trial judge in denial of probation. It seems to be a major theme of critics of our present system of criminal justice that punishment is too indefinite and too uncertain under present rules, and that swift, sure and fixed punishment is one of the better means of attempting to curb criminal activity. It seems to me to be legitimate for a trial judge to consider whether the serving of some or all of a sentence would deter the offender from engaging in further criminal activity, and apparently the trial judge so concluded in the present case.

As pointed out by the Court of Criminal Appeals in its opinion in this case, it can hardly be contended that every criminal is entitled to a first offense without serving time. Of necessity, great weight should be given to the conclusions of the trial judges who, primarily, must administer the granting or denial of suspended sentences in this state. In the present case both the trial judge and a unanimous Court of Criminal Appeals have concurred in the denial of probation, and I am unable to conclude that the trial judge so abused his discretion as to warrant reversal by this Court.

I am authorized to state that Chief Justice COOPER joins in this opinion.


author: FONES, Justice. HENRY, Justice, BROCK, Justice,

text:
    Jerry HAMBY et ux., etc., Petitioners, v. Gary Wayne McDANIEL et al., Respondents.
    Supreme Court of Tennessee.
    Dec. 12, 1977.

      Robert A. Scott, Finnell, Thompson, Scott & Logan, Cleveland, for petitioners.
    Allen H. Carter, Carter & Reid, Athens, for respondents.
   OPINION

FONES, Justice.

Certiorari was granted in this case to reexamine prior judicial interpretations of the Wrongful Death Statute, that a viable fetus suffering tortious injury en ventre sa mere does not come within the intendment of the statute, unless born alive.

The Hambys ask that we extend the scope of the Wrongful Death Statute by holding that a viable fetus is a person within the meaning and intent of T.C.A. 20-607.

A majority of the Court adheres to the rule established in Hogan v. McDaniel, 204 Tenn. 235, 319 S.W.2d 221 (1958), and Shousha v. Matthews Drivurself Service, Inc., 210 Tenn. 384, 358 S.W.2d 471 (1962), and affirmed in Durrett v. Owens, 212 Tenn. 614, 371 S.W.2d 433 (1963).

This action was instituted by petitioners Hamby as next of kin and parents of a stillborn child, petitioners alleging that the fetus was eight and one-half months en ventre sa mere and viable when injured in an automobile accident negligently caused by defendant Gary Wayne McDaniel. The trial court sustained a motion for summary judgment, holding that a fetus is not a “person” within the meaning of the Tennessee Wrongful Death Statute. The Court of Appeals affirmed.

Section 20-607 T.C.A. reads, in pertinent part as follows:

“The right of action which a person, who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrongdoer, in case death had not ensued, shall not abate or be extinguished by his death . . . .”

The identical issue that confronts us here was presented to this Court for the first time in Hogan. The Court observed that under the common law, death extinguished actions for tortious injuries and that rule prevailed in Tennessee until our legislature adopted the Wrongful Death Act in 1851; that under well settled principles the statute must be strictly construed against the maintenance of any right of action not expressly provided for therein.

Hogan held that it was not reasonable to suppose that the legislature intended to declare that an unborn child was a “person” and that its “next of kin” was entitled to sue for its prenatal injury.

The Court concluded its opinion with the following language:

“There is no ambiguity in our Wrongful Death Statute. We must consider it as it is written, not as we would have it. Only the Legislature has authority to create legal rights and interests. It results that no right of action, such as plaintiffs seek to assert, can be brought until there is legislative authority for it.” 319 S.W.2d at 225.

In 1962, the Court held, “that a viable infant en ventre sa mere suffering injuries may, upon being born alive, prosecute an action against those negligently inflicting such injuries to recover compensation therefor. This being so, it naturally follows from 20-607 T.C.A. that when the child dies from such injuries, the parent of the child may prosecute a suit for such injuries and death.” Shousha v. Matthews Drivurself Service, Inc., 210 Tenn. 384, 392, 358 S.W.2d 471, 476 (1962).

In 1963, the plaintiffs in Durrett v. Owens, 212 Tenn. 614, 371 S.W.2d 433 (1963), urged the Court to overrule Hogan by holding that a viable child is a “person” within the meaning of the Tennessee Wrongful Death Statute, and eliminating the condition of live birth. In refusing to do so, the Court made it clear that in deciding Shou-sha, it adhered to the rationale of Hogan that the statute did not entitle the next of kin of the unborn child to sue. Further, that the Shousha decision was predicated upon recognition of the legal right of a child to begin life unimpaired by physical or mental defects from prenatal injuries, which right matures upon live birth and therefore survives under the statute.

The Wrongful Death Statute has been amended since Durrett v. Owens, supra, was decided. The section of the statute quoted above is exactly the same today as it was when Hogan, Shousha and Durrett were decided.

The legislature is presumed to know the interpretation which courts make of its enactments; the fact that the legislature has not expressed disapproval of a judicial construction of a statute is persuasive evidence of legislative adoption of the judicial construction, especially where the law is amended in other particulars, or where the statute is reenacted without change in the part construed. See Missouri v. Ross, 299 U.S. 72, 57 S.Ct. 60, 81 L.Ed. 46 (1936); Stern v. Miller, 348 So.2d 303 (Fla.1977); Hargrove v. Newsome, 225 Tenn. 462, 470 S.W.2d 348 (1971); Bottomly v. Ford, 117 Mont. 160, 157 P.2d 108 (1945); Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46 (1931); Walling v. Brown, 9 Idaho 740, 76 P. 318 (1904); see also Krohn v. Richardson Merrell, Inc., 219 Tenn. 37, 406 S.W.2d 166 (1966); McKinney v. Hardwick Clothes, Inc., 217 Tenn. 457, 398 S.W.2d 265 (1966).

The Tennessee Legislature’s failure to change the Wrongful Death Statute to provide a right of action for a viable fetus, stillborn, implies approval of the definition of “person” given by this Court in Hogan, Shousha, and Durrett, and gives the judicial construction of the statute the effect of legislation.

Changing our construction of the statute at this time would amount to judicial legislation. We noted in Hogan, as follows:

“Where a right of action is dependent upon the provisions of a statute, as in the case at bar, we are not privileged to create such a right under the guise of a liberal interpretation of it. Judicial legislation has long been regarded by the legal profession as unwise, if not dangerous business. It is generally an ill-starred adventure by wilful men.” 319 S.W.2d at 223.

See also Royal Jewelers Co. v. Hake, 185 Tenn. 254, 205 S.W.2d 963 (1947); McBrayer v. Dixie Mercerizing Co., 176 Tenn. 560, 144 S.W.2d 764 (1940).

The minority opinion in the case at bar suggests that the Hogan definition of “person” is based primarily upon the medically unacceptable premise that an unborn child “is a part of its own mother’s physical body.” As we read the opinion, that statement was made in rejection of the conclusion reached by the appellate courts of Minnesota, Illinois, and Mississippi, that life begins at the moment of conception and that the organism, as a matter of law, is a “person” at that stage. Nowhere in the opinion does the Court quarrel with the generally accepted definition of viable fetus. We interpret Hogan as predicated solely on the Court’s opinion that the legislature did not intend to include the unborn, in providing for the survival of a cause of action for wrongful death of a “person”.

The advocates that seek extension of the statute to embrace a viable fetus insist that the “modern thought” of legal, judicial, and other relevant disciplines, is in such accord on the question of when life begins, that it has become illogical, unreasonable, and indefensible not to include a viable fetus within the scope of the word “person”. We do not think it appropriate or necessary to judicially determine when life begins because we are content to hold that the creation of a wrongful death action was properly the business of the legislative branch of government, and the expansion of its benefits to include “viable fetus”, “fetus”, and/or “embryo” is likewise within its exclusive province.

Nevertheless, we think it appropriate to point out, in this opinion, that voices may yet be heard in the land insisting that “person” does not embrace the unborn, at any stage from conception to live birth. The simple truth of that statement may be supported by an examination of the United States Supreme Court opinion in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), where the underlying issue was the constitutionality of the Texas and Georgia abortion statutes.

Relevant here, is the response of the Supreme Court to the assertion by Texas that the “fetus” is a “person” within the scope and meaning of the Fourteenth Amendment. After a brief examination of the many references to “person” in the United States Constitution, the Supreme Court concluded that the use of the word in the instances cited was such that it had no prenatal application. Specifically, as used in the Fourteenth Amendment, the Court was also persuaded that the word “person” was not intended to apply to the unborn. 93 S.Ct. at 729. Later in this opinion, the Court addressed the contention of Texas that the State had a compelling interest in protecting life, from and after conception, as follows:

“We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
“It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics. It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family. As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes ‘viable,’ that is, potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. The Aristotelian theory of ‘mediate animation,’ that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this ‘ensoulment’ theory from those in the Church who would recognize the existence of life from the moment of conception. The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a ‘process’ over time, rather than an event, and by new medical techniques such as menstrual extraction, the ‘morning-after’ pill, implantation of embryos, artificial insemination, and even artificial wombs. “In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive. That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have squarely so held. In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents’ interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.” [Footnotes omitted] 410 U.S. at 159-162, 93 S.Ct. at 730-731.

The Supreme Court of California, has recently rejected a plaintiff seeking expansion of that State’s Wrongful Death Statute to include within the definition of “person”, a viable fetus. That Court examined the legislative history of the California Statute, and the judicial decisions construing it and observed the equating “fetus” with “person” “would rewrite the statute in the guise of construing it.” Justus v. Atchison, 19 Cal.3d 564, 139 Cal.Rptr. 97, 105, 565 P.2d 122, 130 (1977).

In 1976, the Missouri Supreme Court refused to include an unborn fetus within the definition of “person”, holding that:

“[A] wrongful death action may not be maintained for the death of an unborn child. It is our view that a fetus is not a ‘person’ within the meaning of our wrongful death statute until there has been a live birth. We think the legislature in enacting the original act and subsequent revisions did not intend to create an action for the death of a fetus never born alive. In view of the common law rule that an unborn fetus was not a ‘person’ we think if there had been an intention to create such an action it would have been specifically so stated.” State ex rel. Hardin v. Sanders, 538 S.W.2d 336, 338-339 (Mo.1976).

Affirmed. Costs are adjudged against Petitioners.

COOPER, C. J., and HARBISON, J., concurring.

HENRY, Justice,

dissenting.

I respectfully dissent from the views expressed by my esteemed colleagues.

This Court was first presented with the issue of whether a viable fetus, capable of living outside the uterus, is a person protected by the wrongful death statute in Hogan v. McDaniel, 204 Tenn. 235, 319 S.W.2d 221 (1958). This was an action brought to recover for the death of a viable fetus after a pregnancy of thirty-eight weeks.

The Court held that an unborn fetus was not a person in contemplation of the statute. The Court’s opinion seems to be predicated primarily upon two bases, viz.:

(1) the fact that the weight of authority was against such a construction;
(2) its view that an unborn child “is a part of its own mother’s physical body” and is not a person “capable of existence separate from its mother.”

It should be noted that Hogan was decided almost twenty years ago and that during this period phenomenal developments have marked this area of tort law. In Hogan the Court quotes 16 Am.Jur. Death § 75, at 56, as follows:

“Although there is authority to the contrary, the weight of authority supports the rule that, in the absence of a statute, a prenatal injury affords no basis for an action for wrongful death by the parents or personal representative of the child. 204 Tenn. at 242, 319 S.W.2d at 224.”

Today, 62 Am.Jur.2d Prenatal Injuries (transferred from Death) § 2 (1972), after pointing out that in 1946 “the tide of judicial opinion began to turn” and after citing cases decided since 1946, states:

Numerous other cases recognizing a right of action for prenatal injuries have since been decided, resulting in a dramatic reversal of the previous judicial attitude in this area. Indeed, it has been said that seldom in the law has there been such an overwhelming trend in such a relatively short period of time as there has been in the trend toward allowing recovery for prenatal injuries to a viable infant. (Emphasis supplied).

Today 26 jurisdictions allow recovery for stillborn infants under wrongful death statutes; 12 do not allow such suits; and 13 have not passed upon the matter. This erodes a substantial portion of the reasoning for the conclusion reached in Hogan.

Under the modern concept of medicine I do not believe it arguable that an unborn child has no independent existence or that it is “a part of its own mother’s physical body.” Professor Dix Noel, in his 1959 Tennessee Survey on Torts, 12 Vand.L.Rev. 1350, makes this apt comment:

. it is unfortunate that the court placed its decision on the ground that a viable child has no separate legal personality and is merely “a part of its own mother’s physical body.” As noted in a standard treatise, “medical authority has recognized that the child is in existence from the moment of conception.” (Citing Prosser, Torts, Sec. 36, at 174 [2d ed. 1955]). 12 Vand.L.Rev. at 1366.

Four years after Hogan, the Court decided Shousha v. Matthews Drivurself, 210 Tenn. 384, 358 S.W.2d 471 (1962). This case involved the death of triplets who were injured before their birth and while en ven-tre sa mere, but who died shortly after birth and two days after the injury.

The Court specifically confined Hogan “to the facts therein presented” and to all intents and purposes retreated from the Hogan rationale. In contradistinction to the Hogan holding that an unborn child is “a part of its own mother’s physical body,” the Court quotes with obvious approval from an article appearing in Vanderbilt Law Review, wherein it was said:

That an infant en ventre sa mere is a distinct entity is a scientific, commonsense, legally recognized fact.” (Emphasis supplied). 210 Tenn. at 393. 358 S.W.2d at 475.

Also quoted with evident approval is this language from Tennessee Law Review.

An infant in ventre sa mere, or in the mother’s womb is supposed in law to be born for many purposes. It is capable of having legacy, or a surrender of a copy-hold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. 210 Tenn. at 394. 358 S.W.2d at 475.

The late Justice White, in Shousha, met the standard stare decisis argument thusly:

While we adhere strongly to the doctrine of stare decisis, we believe even more strongly in the growth and development of the law to the end that every party who suffers a wrongful injury may have a remedy for redress thereof. 210 Tenn. at 389. 358 S.W.2d at 473.

While Shousha holds that a “viable infant en ventre sa mere suffering injuries may, upon being born alive, prosecute an action,” (emphasis supplied) 210 Tenn. at 397, 358 S.W.2d at 476, there is no escape from the conclusion that this case, decided in the early stages of the developing law on the subject, must be regarded as a substantial modification of Hogan. Among other things, this follows from the Court's holding that the rule of non-liability to a viable child for prenatal injuries is “too harsh and is contrary to that justice which the law seeks to save and promote.” 210 Tenn. at 395, 358 S.W.2d at 476.

It was this logic that prompted Judge Parrott to dissent from the holding of the Court of Appeals. He points out that if “two of the infants had been killed prior to birth and the third was born alive but died immediately after birth, a wrongful death action could only be maintained on behalf of the third infant.” Judge Parrott quotes from the Ohio Court of Appeals, in Stidam v. Ashmore, 109 Ohio App. 431, 167 N.E.2d 106, 108 (1959).

. it would be absurd if recovery could be had for such injuries, unless those injuries were so severe as to cause death before birth.
Such a distinction could lead to bizarre results. Suppose, for example, viable unborn twins suffered simultaneously the same prenatal injury of which one died before and the other after birth. Shall there be a cause of action for the death of the one and not for that of the other? Surely logic requires recognition of causes of action for the deaths of both, or for neither. Inasmuch as the Supreme Court has already determined that there is a cause of action in the case of the one, we can see no valid reason for denying it in the other.

Irrespective of the implications of Shou-sha, the subsequent case of Durrett v. Owens, 212 Tenn. 614, 371 S.W.2d 433 (1963) (opinion also by Justice White), makes it clear that Shousha did not overrule Hogan, and holds without equivocation that under our wrongful death act there can be no recovery for the death of a stillborn child as a result of prenatal injuries. This is the law today.

II.

A study of these three Tennessee cases leaves me with the impression that our law is primarily based upon the medically unacceptable basis that an unborn child “is a part of its own mother’s physical body,” 204 Tenn. at 243, 319 S.W.2d at 224, and has no separate existence of its own until after birth. By definition, this is a fallacy. Dor-land’s Medical Dictionary (23d ed. W. B. Saunders Company 1959) instructs us that a “fetus” is “the developing young in the human uterus after the end of the second month.” Before eight weeks, according to the same authority, “it is called an embryo; it becomes an infant when it is completely outside the body of the mother.” A fetus becomes viable when it “has reached such a stage of development that it can live outside the uterus.” Id. It would thus appear that a viable fetus has its own identity, is capable of living outside the uterus, and is not “a part of its own mother’s physical body.”

The Massachusetts case of Dietrich v. Northampton, 138 Mass. 14, 52 Am.Rep. 242 (1884), is generally recognized to be the source of the rule that a child en ventre sa mere is a part of the mother and has no separate existence and that, therefore, there may be no recovery for prenatal injuries. The Court in Hogan relied heavily on this case.

The tide of judicial opinion did not begin to turn against Dietrich until 1946, when the case of Bonbrest v. Kotz, 65 F.Supp. 138, came before the United States District Court for the District of Columbia. Rejecting the “part of its mother” concept as being “rather anomalous” and a “contradiction in terms” and noting that “[t]he law is presumed to keep pace with the sciences and medical science certainly has made progress since 1884,” 65 F.Supp. at 143, the Court permitted recovery for injuries sustained by a viable fetus.

The first state Supreme Court to break away from Dietrich was Ohio. In Williams v. Marion Rapid Transit, 152 Ohio St. 114, 87 N.E.2d 334, 10 A.L.R.2d 1051 (1949), the Court held that a right of action existed in favor of a viable fetus for prenatal injuries.

Thereafter the case of Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838, 10 A.L. R.2d 634 (1949), came before the Supreme Court of Minnesota. This is the first American case to permit a recovery for the wrongful death of a stillborn infant. It is of interest to note that the Hogan Court did not approve of Verkennes but the Shousha Court cited it with apparent approval.

The retreat from Dietrich has long since taken on flood-tide proportions; and, as indicated earlier, the majority of American jurisdictions now permit recovery for injuries causing the death of a stillborn fetus. See Annot., “Action for Death of Unborn Child,” 15 A.L.R.3d 992 (1967).

Numerous cases discuss and reject the notion that impelled this Court in Hogan, that an unborn child is a part of its mother. One of the better reasoned decisions is the case of O’Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971), involving an eight-month-old viable infant, wherein the Court discussed this critical area as follows:

The instructive dissent of Mr. Justice Boggs, in Allaire v. St. Lukes Hospital, 184 Ill. 359, at 368, 56 N.E. 638, at 640, was written in 1900. His view has been largely adopted in this country.
The majority in that case held:
“That a child before birth is, in fact, a part of the mother, and is only severed from her at birth, cannot, we think, be successfully disputed.”
Justice Boggs wrote: “Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the foetus is capable of independent and separate life, and that though within the body of the mother, it is not merely a part of her body, for her body may die in all of its parts and the child remain alive, and capable of maintaining life, when separated from the dead body of the mother.”
If the mother can die and the fetus live, or the fetus die and the mother live, how can it be said that there is only one life?
If tortious conduct can injure one and not the other, how can it be said that there is not a duty owing to each?
The phenomenon of birth is not the beginning of life; it is merely a change in the form of life. The principle feature of that change is the fact of respiration. But the law does not regard the incidence of respiration as the sole determinative of life. Respiration can be artificially induced or mechanically supplied. Life remains.
That the fetus cannot be seen is hardly the measure of life. That it cannot cry or see or remember — can these things control its right to live?
What of the capacity for “independent” life?
A baby fully born and conceded by all to be “alive” is no more able to survive unaided than the infant en ventre sa mere. In fact, the babe in arms is less self-sufficient — more dependent — than his unborn counterpart.
Does he want to eat? He cannot take himself to his mother’s breast, or even discover the use of it without her help. He cannot keep himself warm or dry or ward off danger. He lives by the sufferance of others, demanding the means of sustaining his life by the noisy, endearing, obvious fact of his presence.
The demands of the unborn child are no less total, but they are enforced by physical rather than emotional attachments. Ensconced and protected, he takes what he needs without asking. Only the conscious or negligent acts of others can deprive him of sustenance.
The phenomenon of birth is an arbitrary point from which to measure life. True, we reckon age by counting birthdays. The Chinese count from New Years. The choice is arbitrary.
Birth may be natural, where the fetus has commenced the process by chemical changes within himself, and the mother has cooperated; it may be intentional, as in the case of Cesarean section or induced labor; or it may be accidental, as where the child is separated from the mother by trauma.
One need not be alive in order to be born; as the delivery of stillborn babies demonstrates. Neither is it possible for one to be born alive unless he be living prior to the birth.
A fetus having died within its mother’s womb is dead; it will not come alive when separated from her. A fetus living within the mother’s womb is a living creature; it will not die when separated from her unless the manner, the time or the circumstances of separation constitute a fatal trauma.
The fact of life is not to be denied. 188 N.W.2d at 786-788.

In Mone v. Greyhound Lines, Inc., 331 N.E.2d 916 (Mass.1975), the Court agreed with the majority of jurisdictions that conditioning a right of action on whether a fatally injured child was born alive or dead was not only an artificial and unreasonable demarcation, but unjust as well. The Court cited the rationale of Todd v. Sandidge Constr. Co., 341 F.2d 75 (4th Cir. 1964):

If the trauma is severe enough to kill the child, then there could' be no recovery; but if less serious, allowing the child to survive, there might be recovery. Again, if the fatality was immediate, the suit could not prevail, but if the death was protracted by a few hours, even minutes, beyond birth, the claim could succeed. Practically, it would mean that the graver the harm the better the chance of immunity. Id. at 77.

It should be noted that the Tennessee Vital Statistics Act of 1941 (Section 53-401, et seq., T.C.A.) defines stillbirth to mean “a birth after twenty (20) weeks of gestation which is not a live birth.” Section 53-402(c), T.C.A. In terms of months this tends to indicate that after about four and one-third months we treat the fetus as a separate entity, although “[vjiability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Roe v. Wade, 410 U.S. 113, 160, 93 S.Ct. 705, 730, 35 L.Ed.2d 147, 181 (1973). A death certificate is required under Tennessee law for all stillbirths. Sections 53-438, 53-439, T.C.A.

I think that to permit a wrongful death action based upon the infliction of tort upon a fetus subsequently born alive but whose death immediately ensues, and to withhold such action where the fetus is born dead is illogical, unreasonable and indefensible. I would hold that a viable fetus is a “person” within the meaning and intent of Section 20-607, T.C.A., and that an action will lie at the instance of the statutory beneficiaries for his or her wrongful death. Such a holding would, in no sense, invade the province of the legislature. It is the duty of the judicial branch to construe the language of legislative enactments. The legislature, in my view, merely intended to provide a wrongful death action, leaving its administration and construction to the courts.

My brother BROCK joins in this dissent.

BROCK, Justice,

dissenting.

I respectfully dissent.

While the Tennessee Wrongful Death Statute did, as the majority notes, change a rule of the common law, it does not follow that the statute must be strictly construed. See, e. g., Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 369, 355 S.W.2d 436 (1962). Statutes changing common-law rules may also be remedial, 82 C.J.S. Statutes § 388 (1953), and thus, entitled to a liberal construction so as to effectuate the purposes for which they were enacted.

“Death statutes have their roots in dissatisfaction with the archaisms of the [earlier] law . . . . It would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied. There are times when uncertain words are to be wrought into consistency and unity with a legislative policy which is itself a source of law, a new generative impulse transmitted to the legal system.” Van Beeck v. Sabine Towing Co., 300 U.S. 342, 350-51, 57 S.Ct. 452, 456, 81 L.Ed.2d 685 (1937) (Cardozo, J.).

In my opinion, resolution of the question of whether an unborn child is a “person” within the meaning of our Wrongful Death Act should effectuate the basic purposes of such legislation — “to afford redress in wrongful death cases where no redress was obtainable at common law, and to ameliorate the harsh rule which denied any recovery if an injured person died, while permitting an award of damages if the person lived.” 25A C.J.S. Death § 14 (1966) (emphasis added).

In Shousha v. Matthews Drivurself Serv., Inc., 210 Tenn. 384, 358 S.W.2d 471 (1962), parents were allowed to bring actions for the wrongful deaths of their triplet sons where each child was born alive and subsequently died as a result of injuries received prior to birth.

It is no less a loss to survivors where, as here, the child died before birth. It seems inconsistent to permit recovery for prenatal injuries to the child born alive but to deny recovery to a child whose prenatal injuries inflicted by the tortfeasor are severe enough to cause stillbirth. As the Maryland Supreme Court observed: “The cause of action arose at the time of the injury, and we see no more reason why it should be cut off because of the child’s death before birth, than if it died thereafter.” State ex rel. Odham v. Sherman, 234 Md. 179, 198 A.2d 71, 73 (1964).

Because this inconsistency is essentially the same as that addressed by the wrongful death statutes, I would hold that an unborn child is a “person” within the meaning of the Tennessee Wrongful Death Statute, thus permitting the parents to recover notwithstanding the death of the child. In my opinion it is clear that our Legislature intended that whatever loss there is should be compensated.

I am authorized to state that Mr. Chief Justice HENRY joins in this dissent.

      . Equated by the Court and counsel, and in subsequent cases, with nine and one-half months.

      . Alabama, Alaska (Fed.Court), Connecticut, Delaware, District of Columbia, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New Hampshire, Ohio, ■ Oklahoma, Oregon, Rhode Island, South Carolina, Washington, West Virginia and Wisconsin.

      . Arizona, California, Florida, Iowa, Missouri, Nebraska, New Jersey, New York, North Carolina, Pennsylvania, Tennessee and Virginia.

      . Arkansas, Colorado, Hawaii, Idaho, Maine, Montana, New Mexico, North Dakota, South Dakota, Texas, Utah, Vermont and Wyoming.
      Note: For case citations see Annot., “Action for Death of Unborn Child,” 15 A.L.R.2d 992 (1967).

      . Massachusetts now permits recovery. See Mone v. Greyhound Lines, Inc., 331 N.E.2d 916 (Mass.1975).


author: COOPER, Justice.

text:
    Lincoln O. BURNETT, Larry Graves and Jim Bob Scruggs, Petitioners, v. M. A. NELMS and Ann H. Nelms, Respondents.
    Supreme Court of Tennessee.
    Dec. 19, 1977.
    Harold W. McLeary, Jr., Lloyd S. Adams, Jr., Adams, Ryal & McLeary, Humboldt, for petitioners.
    James D. Senter, III, Senter & Senter, Humboldt, for respondents.
   OPINION

COOPER, Justice.

We granted this petition for certiorari to consider whether the respondents are entitled to a new trial as a result of an allegedly false answer given by a juror to a question asked him on voir dire.

This question has arisen in connection with a suit for personal injuries and property damage. On November 22, 1971, a car driven by the respondent, Ann Nelms, was struck by several bales of cotton that fell from a truck. The truck was owned by petitioner Larry Graves, and, at the time of the accident, was being driven by Lincoln Burnett, an employee of petitioner Jim Bob Scruggs. The respondent brought this action to recover for the injuries that she suffered and for the damage to the car. The trial judge directed a verdict on behalf of Graves, and the jury returned a verdict in favor of the other two defendants. In her motion for a new trial, the respondent contended, inter alia, that one of the jurors, J. V. Butler, was incompetent to hear the case. In support of her motion, the respondent presented affidavits to the effect that, on voir dire, the jurors had been asked by counsel for the respondent: “Do any of you work for an insurance company or are you an insurance agent or own stock in any insurance company?” Butler remained silent, although he possessed a license to sell insurance. The motion was overruled. On appeal, the Court of Appeals held that, in light of his false answer to this question, Butler’s presence on the jury was so prejudicial to the respondents as to demand a new trial.

There is some confusion as to the precise wording of the question that was asked of the prospective jurors by counsel for the respondent. As recorded in the bill of exceptions, the question posed was:

Do any of you work for a — any insurance company or do you own any stock in any insurance company?

In an affidavit filed in support of respondents’ motion for a new trial, the court reporter certified that the question asked was:

Do any of you work for any insurance company or are you an insurance agent or own stock in any insurance company?

It was the latter version of the question that the Court of Appeals accepted, and it was Butler’s arguably false answer to that question upon which they predicated their holding. In this, the court below was in error. The version of the question that must be accepted on appeal is that recorded in the bill of exceptions. The transcript of the proceedings contained in the bill of exceptions is conclusive as to matters properly included in it, and may not be contradicted by affidavits submitted in support of a motion for a new trial. See Baldwin v. State, 204 Tenn. 639, 325 S.W.2d 244 (1959); Koehn v. Hooper, 193 Tenn. 417, 246 S.W.2d 68 (1952); Parrish v. Yeiser, 41 Tenn.App. 690, 298 S.W.2d 556 (1955).

Juror Butler’s response to the question posed by counsel for the respondent, as that question is preserved in the bill of exceptions, was completely accurate. It is undisputed that, at the time of the trial, Butler was not employed by an insurance company. There is no indication in the record that he owned stock in any insurance company. The mere fact that Butler possessed a license to sell insurance, absent any showing that he attempted to conceal the same, is not such an indication of bias as to imply that Butler’s presence on the jury was prejudicial to the respondents. Cf. Durham v. State, 182 Tenn. 577, 188 S.W.2d 555 (1945).

The judgment of the Court of Appeals is reversed, and the case dismissed. The costs incident to this appeal will be taxed to the respondents.

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


author: HARBISON, Justice.

text:
    Hazel Irene LETTNER, Individually and as Executrix of George Anderson Lettner, Deceased, Appellants, v. Joel PLUMMER, Commissioner of Safety, et al., Appellees.
    Supreme Court of Tennessee.
    Dec. 27, 1977.

      Robert M. Stivers, Jr., Knoxville, for appellants.
    Michael E. Terry, Asst. Atty. Gen., Nashville, for appellees; Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

HARBISON, Justice.

Appellants seek review of the determination of an Administrative Hearing Officer, affirmed by the Chancellor, that the sum of nine thousand six dollars ($9,006.00) taken from them by police officials was subject to forfeiture under the 1971 Drug Control Act, T.C.A. §§ 52-1408 et seq.

After a full hearing, in which conflicting evidence was introduced on disputed issues of fact, the Administrative Judge held that the money seized had been received by appellants “in consideration for or in exchange for a controlled substance” in violation of the Act. Reviewing this decision under the standards provided in the Uniform Administrative Procedures Act, T.C.A. § 4-523(h), the Chancellor found that there was substantial and material evidence to support the conclusions of the Hearing Officer, and he affirmed the forfeiture of the funds.

The assignments of error of appellants in this Court are identical to those made before the Chancellor. Review in this Court under the Uniform Administrative Procedures Act is governed by essentially the same standards as those applicable in the chancery court. Metropolitan Gov’t of Nashville & Davidson County v. Shacklett, 554 S.W.2d 601, 604 (Tenn.1977); Humana of Tennessee v. Tennessee Health Facilities Comm’n, 551 S.W.2d 664, 667-668 (Tenn.1977).

Appellants were advanced in years, unemployed and without apparent or visible means of support, except for a large illegal drug operation which was clearly established by the preponderance of the evidence. Their home was entered by police officers acting under a valid search warrant, and large sums of cash were found on the person of Mr. Lettner and beneath the mattress in the bedroom of Mrs. Lettner. Also large quantities of controlled substances were found on the persons of appellants and in the premises. Mr. Lettner was armed. Two other persons were present when the officers first entered the premises, and two others appeared while the officers were conducting their search. Three of these persons were identified by the officers, from personal knowledge, as being users of drugs or otherwise identified with illicit drug traffic. Each of the appellants had previously been arrested at least once on drug charges. When cross-examined as to their dealings with the four persons who were upon or who entered the premises during the raid, appellants carefully and meticulously invoked their fifth amendment rights. When questioned by a police officer as to why she and her husband did not get out of the drug business, appellant Mrs. Lettner stated that they intended to do so within a short time.

Each of the appellants testified, and each claimed to have received large cash gifts from relatives during the 1975 Christmas season. The drug raid on their home was conducted on January 25, 1976. Each of the appellants also contended that some of the cash found in their home represented proceeds of two loans received by them during the previous year, these loans having been made ten months and seven months prior to the search.

The credibility of the witnesses and the weight to be given their testimony was, of course, primarily a matter for determination by the hearing officer. Any fact may be established by direct testimony, circumstantial evidence or a combination thereof. The trier of fact may draw reasonable and legitimate inferences from established facts. In a forfeiture case such as this the burden of proof rests upon the Commissioner, who must establish by a preponderance of the evidence, or as the more probable conclusion, that cash such as that found in the present case was received in consideration for or in exchange for a controlled substance.

While the finding of cash with a large quantity of controlled substances does not alone satisfy the burden of proof, as held in previous unreported cases in this state, there are in the present case numerous additional circumstances from which inferences favorable to the contentions of the Commissioner could be drawn. Only by accepting at face value the improbable and somewhat conflicting testimony of the appellants, and by ignoring very strong circumstantial evidence to the contrary, could a fact-finder conclude that the funds seized from appellants represented the proceeds of gifts or legitimate business transactions. We find abundant material evidence to support the conclusion of the hearing officer and of the Chancellor, and overrule the assignments of error of appellants with respect to the sufficiency of the evidence.

Essentially appellants contend that funds are not subject to forfeiture under the Drug Control Act unless they can be traced to specific prior sales. We are of the opinion that the statute is not so restrictive, and we disagree with appellants in their assertion that there was no direct or circumstantial evidence that they had ever in the past engaged in the illicit sale of controlled substances.

Appellants further assign as error the admission into evidence of what they characterize as hearsay testimony involving the reputation of the four persons who were found on the premises or who entered during the course of the police search.

Most of the testimony of the investigating officers was based on their personal knowledge, and not upon hearsay or rumor, with the possible exception of the testimony of one officer as to a telephone call received by him during the course of the raid. Even if the latter testimony were excluded, however, there was abundant additional and competent testimony from the officers as to their personal knowledge of the past history of the persons who were present and as to their association with illegal drug transactions.

Further, under the Uniform Administrative Procedures Act, evidence in contested cases is not strictly limited to that which is admissible in court under traditional rules, but Administrative Officers “may also admit evidence which possesses probative value commonly accepted by reasonably prudent men in the conduct of their affairs.” T.C.A. § 4-515(a).

We find no reversible error in the record and affirm the judgment of the Chancellor, at the cost of appellants.

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


author: HENRY, Chief Justice.

text:
    Merry Paulette Hembree BELLAR, Appellant, v. BAPTIST HOSPITAL, INC., and Underwriters Adjusting Company, Appellees.
    Supreme Court of Tennessee.
    Jan. 3, 1978.
    Franklin D. Brabson, Nashville, for appellant.
    Thomas O. H. Smith, Jr., Smith, Davies, Smith & Cantrell, Nashville, for appellees.
   OPINION

HENRY, Chief Justice.

This is a workmen’s compensation action. Upon appellees’ motion to dismiss or in the alternative for judgment on the pleadings, the trial court entered an order dismissing appellant’s action on the ground that it was barred by the statute of limitations as provided in Section 50-1003, T.C.A. Contending that the action was not barred by the statute and that appellees are estopped to rely on Section 50-1003, appellant has perfected an appeal to this Court.

I

This case was heard on the complaint, motion to dismiss, and argument of counsel. No fact or proof was introduced. For this reason the disposition of this case depends entirely upon the pleadings and attached exhibits.

In her complaint Merry Bellar, the appellant, alleges that on December 30,1973, she injured her back in the course of her employment with appellee Baptist Hospital, Inc. On July 10, 1974, appellant reinjured her back at work. Bellar received medical treatment for both injuries, and temporary total disability payments were made by her employer until January 1976.

Appellant had been treated by Dr. John Brothers in Tennessee from 1973 through 1975, when she moved to Louisiana. After her payments were discontinued, appellant alleges that appellee’s insurance adjuster informed her that the payments would not be resumed until appellant had seen her doctor again. Appellant, therefore, was examined by Dr. Williams Akins in Louisiana; and on March 17, 1976, he informed her that she was suffering from a ten per cent permanent disability to the body as a whole. Bellar asserts that this is the first time she became aware that she was suffering from a permanent disability.

In the meantime, appellant had employed a Louisiana attorney to represent her. On February 19, 1976, he had received a copy of Dr. Brothers’ office notes regarding appellant’s case. In the notes dated May 7, 1975, Dr. Brothers had written, “[a]t this time she [appellant] has a 15 percent permanent physical impairment to the body as a whole.” On February 25, 1976, the Louisiana attorney also received a letter from a claims representative for appellee Underwriters Adjusting Company, referring to Dr. Brothers’ diagnosis of permanent disability.

By October 29, 1976, appellant had retained an attorney in Tennessee. In early March 1977, appellant learned that the insurance company claimed that because the company had made its last voluntary payment on December 31, 1975, the statute of limitations had run and they would make no further voluntary payments for disability. The present action was filed March 16, 1977, over a year after voluntary disability payments had ceased but within a year from the date Dr. Akins had told appellant of her ten per cent permanent disability.

II

Section 50-1003, T.C.A., provides that a claim for compensation must be filed within one year after the accident occurs or voluntary payments of compensation cease.

From the complaint it is clear that appellant was injured in December 1973 and July 1974. She was aware at that time of the nature and cause of her injuries. Compensation was paid until January 1976. The complaint was filed in March 1977 and is barred on its face by Section 50-1003. Union Carbide Corp. v. Cannon, 523 S.W.2d 360 (Tenn.1975).

Appellant argues, however, that the statute did not begin to run until Dr. Akins informed her that her disability was permanent. She asserts that Dr. Brothers never told her personally that she was suffering from a permanent disability. A reading of the complaint reveals, however, that Dr. Brothers’ diagnosis had been conveyed to appellant through her attorney in February 1976. Knowledge of facts learned by an attorney in the course of his employment will be imputed to his client. See Neilson v. Weber, 107 Tenn. 161, 64 S.W. 20 (1901); Bank of Blount County v. Dunn, 10 Tenn.App. 95 (1929).

Appellant next advances the argument rejected by this Court in Bradford v. Dixie Mercerizing Co., 199 Tenn. 170, 285 S.W.2d 136 (1955), that the statute does not begin to run until the exact degree of disability is determined. Such is not the rule. The statute begins to run at that time when the employee, by a reasonable exercise of diligence and care, would have discovered that a compensable injury had been sustained. Reed v. Genesco, 512 S.W.2d 1 (Tenn.1974). Appellant made this discovery in 1973 and 1974.

Relying on Fields v. Lowe Furniture Corp., 220 Tenn. 212, 415 S.W.2d 340 (1967), appellant also contends that the statute is tolled until her last medical treatment is received. Fields involved a situation where an employee was sent by his employer to a doctor selected by the company. In the present case the appellant herself chose and employed the treating physicians; the ap-pellee provided no direct medical services. The statute began to run when the voluntary payments terminated.

Ill

As her final argument, the appellant asserts that the appellees are estopped to rely on the defense of the statute of limitations because their conduct led appellant to believe that her payments had not ceased but would be forthcoming in the future.

In her complaint appellant alleges that certain conduct on the part of the appellees “lulled [her] into a false sense of security.”

First, she avers that in January 1974 the Assistant Director of Nursing at Baptist Hospital advised her that workmen’s compensation would “take care of her medical expenses.” Appellant states that she was told by a claims representative for Underwriters Adjusting Company, soon after payments ceased that she would not receive another check until she “went back to the doctor.” Thereupon she went to Dr. Akins and continued her medical treatment. Medical bills and reports connected with this treatment were forwarded to the insurance company.

Appellant alleges that an officer of the personnel department at Baptist Hospital wrote to her that she would “continue to receive compensation until the settlement is made.” “This,” appellant continues, “led complainant to believe that her temporary total benefits would be reinstated shortly.”

Appellant next alleges that requests by Underwriters Adjusting Company in November 1976, slightly more than a month before the statute ran, that she send them further medical reports and a “breakdown” of hospital expenses incurred during the summer of 1976 were a “misleading and fraudulent attempt to deprive her of her workmen’s compensation benefits.” Appellant asserts that she was never advised that Dr. Akins would not be paid.

A complaint should not be dismissed for failure to state a claim upon which relief may be granted unless it undoubtedly appears that no set of facts can be proved in support of the plaintiff’s claims that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In considering a motion to dismiss the court must construe the complaint liberally in favor of the pleader. Holloway v. Putnam County, 534 S.W.2d 292 (Tenn.1976); Huckeby v. Spangler, 521 S.W.2d 568 (Tenn.1975).

Considering the allegations of the complaint in light of these rules and the doctrine of equitable estoppel as applied in the recent workmen’s compensation case of Giles County Board of Education v. Hickman, 547 S.W.2d 944 (Tenn.1977), we must conclude that the complaint adequately sets forth grounds sufficient to support a claim that the doctrine of equitable estoppel should be applied in this case. Upon remand this issue should be inquired into and proper evidence adduced.

Reversed and remanded.

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