author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Bernard DAVIS, Defendant-Appellant.
    No. 10432.
    Missouri Court of Appeals, Springfield District.
    Oct. 3, 1977.

      John D. Ashcroft, Atty. Gen., Walter O. Theiss, Carson Elliff, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    Bruce W. Simon, Kansas City, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   TITUS, Judge.

Defendant Davis was jointly charged with Michael Wayne Wright in a two-count information with first degree robbery at Porter’s So-Lo Market in Springfield on (Count I) October 19, 1975, and on (Count II) November 29, 1975. See State v. Wright, 558 S.W.2d 321, filed simultaneously herewith. The jury found defendant guilty on both counts. In accordance with the verdicts, defendant was sentenced to consecutive terms of imprisonment of 25 and 15 years.

As noted in State v. Wright, supra, co-defendant Wright was acquitted on Count II. Defendant’s first point relied on is that the “trial court erred in failing to grant judgment of acquittal [for defendant] as to Count II of the information” because the verdict of guilty returned against defendant on Count II was impossible and inconsistent with the verdict finding Wright innocent of Count II.

Defendant’s reliance on State v. Cline, 447 S.W.2d 538, 543[3] (Mo. banc 1969); State v. Akers, 278 Mo. 368, 370[2], 213 S.W. 424, 425[2] (1919), and other cited authorities, is misplaced. For example: In Cline, defendant was charged in one information with burglary and stealing in conjunction therewith in violation of § 560.110, V.A.M.S. The court said that defendant could not be acquitted of burglary and at the same time be convicted of burglarious stealing. In Akers defendant and one McMahon were jointly charged in a two-count petition. Defendant was charged in each count with the identical crime of larceny while McMahon was charged in Count I with being an accessory before the fact and in Count II with being an accessory after the fact. A severance was granted and the jury found defendant guilty under Count I and not guilty under Count II. The court held the verdicts too contradictory to support a judgment of conviction.

The verdict of not guilty for Wright under Count II is not contradictory to nor inconsistent with the verdict finding defendant guilty of Count II. A jury is entitled to believe or disbelieve all, part or none of the testimony of any witness [State v. Wade, 535 S.W.2d 492, 495[4] (Mo.App.1976)], and this includes the right to disbelieve defendant’s alibi witnesses. State v. Vineyard, 497 S.W.2d 821, 830[23] (Mo.App.1973). When there is any difference, as here, in the evidence as between persons jointly tried, the jury may weigh the evidence and make allowance for such difference; and when this is done, the fact that one is acquitted and another convicted is not grounds for reversal of the conviction. People v. Taylor, 25 Ill.App.3d 396, 323 N.E.2d 388, 393 (1974); People v. Newman, 192 Cal.App.2d 420, 13 Cal.Rptr. 305, 307 (1961).

There appears no need to burden this opinion with a detail of all the differences in the evidence as it related to defendant and Wright. It suffices to make the following brief observations. Although the store employee identified Wright as a participant in the second robbery (Count II), she “only got a glimpse of him”; and the store owner could not positively say that Wright had been present at the second robbery. The getaway car employed following the second robbery was identified as belonging to defendant. Also, it was shown that Wright was operated on November 17, 1975, for removal of a ganglion cyst from the dorsal surface of his left wrist and that the sutures and final bandaging of the surgical wound had not been removed until after the second robbery. No evidence was presented that either participant in the second robbery was wearing a bandage. The fact that Wright was acquitted on Count II is immaterial in this proceeding and is no proof that defendant was not guilty under Count II. State v. Sickler, 293 S.W.2d 957, 959[2] (Mo.1956); Chambers v. State, 554 S.W.2d 112, 114[2] (Mo.App.1977).

Rule 84.04(a), V.A.M.R., contemplates that an appellant’s brief be divided into four parts with the third part devoted to “Points Relied On.” Rule 84.04(d) mandates that the points shall briefly and concisely state “what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities thereunder.” These rules are made applicable to criminal cases by Rule 28.18. State v. Orr, 493 S.W.2d 374, 376 (Mo.App.1973).

Apropos of defendant’s second and last point, we observe that it, as the first point, supra, does not comply with the rules for several reasons. The point reads: “The trial court erred in overruling [defendant’s] objection and motion for mistrial when a prosecution witness testified as to photographic display of [defendant] as such evidence was hearsay, inadmissible and highly prejudicial.”

One thing wrong with the point is that it does not come “with citation of authorities.” A point presented without any citation is deemed to have been waived or abandoned. State v. Drake, 514 S.W.2d 653, 657[9] (Mo.App.1974). In addition, the point does not identify the prosecution witness referred to and does not state “wherein and why” his testimony, whatever it may have been, was allegedly hearsay, inadmissible and highly prejudicial. An appellate court is not required to search the argument portion of an appellant’s brief to seine out the authorities relied on, to ascertain the identity of a witness whose testimony appellant complains of or to come by the “wherein and why” appellant is contending the abstractions set forth in his point are error. State v. Mitchell, 500 S.W.2d 320, 323[3] (Mo.App.1973). The point is not for review. State v. Halliburton, 531 S.W.2d 554, 556[3-5] (Mo.App.1975).

In addition to the foregoing, there are other reasons why the point has not been preserved for appellate review. Rule 27.20(a) specifies that the motion for a new trial “must set forth in detail and with particularity . . . the specific grounds or causes therefor.” The motion for new trial, as concerns the point in question states: “3. The Court erred in permitting the State to offer as rebuttal testimony over the objection of the defendant the testimony of Julie Delcourt [sic] and Bob Alexander. 4. The Court erred in failing to grant the Defendant’s Motion for Mistrial when the state offered through its investigator Bob Alexander a recitation of photo identification of the Defendant.”

Neither of the motion assignments preserve anything for review. No reasons are set forth as to why the rebuttal testimony or the photo identification testimony is claimed to have been inadmissible or how or why such testimony was prejudicial. State v. Whittington, 379 S.W.2d 518, 521[4] (Mo.1964); State v. Miles, 364 S.W.2d 532, 536[7] (Mo.1963). Moreover, the complaint in the point relied on and in the motion for new trial anent the trial court overruling defendant’s motion for mistrial in connection with the testimony of witness Alexander is wholly untenable for the simple reason that no such motion was ever made.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: FONES, Justice. HARBISON, Justice,

license: Public Domain

text:
    Dennis FISHER, Petitioner, v. CROMWELL COMPANY, INC., Respondent.
    Supreme Court of Tennessee.
    May 31, 1977.
    Lewis F. Clark, Humboldt, for petitioner.
    Howard M. Taradash, Nashville, for respondent.
   OPINION

FONES, Justice.

Upon further consideration of this case, following our grant of certiorari and oral argument, we are of the opinion that the judgment of the Court of Appeals is correct and should be affirmed.

However, we think it appropriate to observe that had the letter of the general sessions judge been made a part of the record and available for consideration by the appellate courts the result would be the same. No authority exists to grant an untimely appeal, and therefore the letter in support thereof was irrelevant.

The only remedy available, after the time for appealing from the general sessions court to the circuit court has expired, is by certiorari in lieu of appeal. See Caruthers, History of a Lawsuit, 8th edition, §§ 522, 523.

Affirmed. Costs are adjudged against Dennis Fisher.

COOPER, C. J., and HENRY, J., concur.

BROCK and HARBISON, JJ., dissent (see separate opinion).

HARBISON, Justice,

dissenting.

In this case the original plaintiff filed a motion to dismiss the appeal of the defendant from the general sessions court to the circuit court. This motion alleged that the appeal bond filed on behalf of the defendant was not timely under the provisions of T.C.A. § 27-509, which allows a ten-day period for taking an appeal from an adverse decision in the general sessions court.

-To this motion the defendant filed a written response, raising issues of fact not appearing of record, and in effect contending that the judgment in the general sessions court was entered nunc pro tunc on a date later than that appearing of record. The defendant asserted that his appeal bond was filed within ten days from the date of the actual entry of the judgment in the general sessions court.

Rule 43.05 of the Tennessee Rules of Civil Procedure provides as follows:

“When a motion is based on facts not appearing of record, the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.”

In this case one of the regular circuit judges heard the motion and overruled it. His order recites that he considered the response to the motion. According to an amendment to the bill of exceptions filed by plaintiff, when the case came on for trial before a special judge, the motion to dismiss was orally renewed. That judge, also, expressly found that the case was before him “upon timely appeal in accordance with the provisions of T.C.A. § 27-509 . . .

It seems to be undisputed that matters outside the record were considered by at least one of these trial judges, possibly by both. However, the plaintiff, who is assailing their findings that the appeal was timely, has not included in the record on appeal any documents or other evidence considered by the trial judges in deciding the factual issues raised by the motion and the response thereto.

In the absence of a proper bill of exceptions, containing all of the pertinent matters which were before the trial judges, in my opinion the Court should presume that there was sufficient evidence before them to sustain their respective findings that the appeal bond was in fact timely filed.

Since the plaintiff is, in effect, the party attacking these particular rulings, even though it did not assign them as error or perfect an appeal therefrom, it was incumbent upon plaintiff, not upon the defendant, to preserve a proper bill of exceptions, including all matters considered by the trial judges, and this simply has not been done.

In my opinion, this cause should be remanded to the Court of Appeals for consideration of the assignments of error of the defendant upon the merits of the case, which assignments are properly supported by a transcript of the evidence heard at the trial. Justice Brock concurs in this opinion.


author:
HARBISON, Justice.
      HENRY, Justice

text:
    Robert L. JOHNSON, Petitioner, v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY, Respondent.
    Supreme Court of Tennessee.
    June 13, 1977.

      Roy T. Campbell, Jr., Newport, for petitioner.
    Edward F. Hurd, Newport, for respondent.
   OPINION

HARBISON, Justice.

This is an action on an automobile theft insurance policy. The trial court found the value of the vehicle on the date of the theft to be $4,400.00 and allowed judgment for the insured in that amount, plus interest of $270.24, representing the difference between the amount necessary to discharge a mortgage on the vehicle on the date of the loss and the necessary amount on the day of the trial. In addition the trial court allowed a statutory bad-faith penalty of ten percent of the value of the vehicle, pursuant to T.C.A. § 56-1105. Although the insured had sued for loss of the use of the vehicle as provided in the policy, the proof offered on that subject was undocumented and indefinite in amount, so that no recovery was allowed for that portion of the claim.

Only the insurer appealed from the judgment of the trial court, assigning as error in the Court of Appeals the allowance of interest and penalty. Reviewing the facts of the case, the Court of Appeals concluded that neither the penalty nor the interest should have been awarded, in view of the fact that the insured had not made a definite or formal demand for payment until less than sixty days prior to filing suit. T.C.A. § 56-1105 allows a penalty, in the discretion of the trier of fact, when the insurer refuses to pay “within sixty (60) days after a demand shall have been made by the holder of the policy on which said loss occurred . . . ."

The vehicle in question was purchased by Mr. Robert L. Johnson, the named insured, in March 1974. The purchase price was $5,313.50, not including sales tax. It was a new vehicle and was used primarily by the insured’s wife and his college-age son, and was then taken by the son, Robert D. Johnson, to college with him in January. It was stolen on the night of January 4, 1975, which was during a weekend, and the loss was promptly reported to the insurance carrier at the beginning of the next week.

The proof shows that the insurance carrier took at least two different statements from the insured’s son, but neither of these has been filed in the record, and the dates do not appear. It further does not appear in the record whether a formal proof of loss was filed. The insured’s son testified that he did not make a formal demand, or at least a written demand, upon the insurance company, but did state that he thought the vehicle was worth approximately $5,000.00 on the date of the loss. He said that he never really made any fixed demand but told the insurance carrier that he wanted “the face value of the car.”

The insured’s son testified that the company never met his claim of $5,000.00. However, he advised the adjuster that “if he could get a car comparable to mine I would take that . . . .”

The record reflects that the claim was handled by two different insurance adjusters, one in the area where the insured’s son was attending college, and the other in the area where the insured resided. The insurance carrier did not consider that the vehicle was worth the amount so close to the original purchase price, as suggested by the insured’s son, because it had been used for approximately nine months and had been driven between seven thousand and eight thousand miles.

On March 12, 1975 the insured’s son retained counsel, and a written demand was made by the attorney upon the insurance carrier for settlement. Thereafter the company and counsel for the insured negotiated extensively in an effort to find a replacement vehicle comparable to the stolen automobile. The insurance adjuster testified that he had located three vehicles in Bristol, roughly comparable to the automobile in question, any one of which he could have purchased for $3,650.00. None of the negotiations succeeded, however, and suit was filed on behalf of the insured on April 26, 1975.

At the trial an appraiser testified for the insured, fixing the approximate value of the vehicle on the date of the loss at $4,500.00. The adjuster for respondent testified that in his opinion it was worth between $3,850.00 and $3,900.00.

It is apparent that there was a genuine dispute between the parties in the case as to the fair value of the vehicle on the date of the theft. While there was a delay in the adjustment of the loss, it does not appear that the insurance carrier was consciously indifferent to the claim of the insured or that it acted out of any improper motive. There were genuine efforts to find a replacement automobile which would be mutually satisfactory. Under all of the circumstances we agree with the Court of Appeals that the statutory penalty should not be applied to this case, and we concur in its deletion of the penalty, in the amount of $440.00, from the judgment.

The allowance of interest, however, is in a somewhat different category. While the penalty statute does make reference to interest as well as penalty, interest may be allowed, in proper cases, wholly apart from the penalty statute.

An unliquidated loss on an insurance policy such as the one in question usually does not bear interest as a matter of right under T.C.A. § 47-14-107, but it is well settled that the trier of fact may, in his discretion, allow interest upon an unliqui-dated claim for property damages or breach of contract. In the case of Phoenix Ins. Co. v. Jordan, 28 Tenn.App. 11, 184 S.W.2d 721 (1944), interest was allowed upon a fire loss, the Court holding that if the policy of insurance did not fall within the terms of the statute allowing interest as a matter of right, then its allowance would be discretionary. The Court found no abuse of discretion on the part of the chancellor in awarding it. See also Textile Workers Union of America v. Brookside Mills, Inc., 205 Tenn. 394, 402-403, 326 S.W.2d 671 (1959); Owen v. Holdway, 57 Tenn.App. 713, 718, 425 S.W.2d 623 (1967); Thayer v. Wright Co., 50 Tenn.App. 515, 531, 362 S.W.2d 805 (1961); Akers v. Sedberry, Inc., 39 Tenn.App. 633, 646, 286 S.W.2d 617 (1955).

The rule was recently stated by the Court of Appeals for the Sixth Circuit as follows:

“The fact that the claim does not fall within the terms of the statute making interest mandatory does not preclude the granting of interest; in Tennessee the granting or withholding of interest prior to judgment in cases not falling under the statute is within the discretion of the trial judge.” Farmer’s Chemical Assoc. v. Maryland Cas. Co., 421 F.2d 319, 323 (6th Cir. 1970).

In the present case the trial judge awarded pre-judgment interest because the vehicle was financed and the amount allowed represented the increased obligation of the insured to the mortgagee between the date of the loss and the date of trial. We are unable to say that the trial judge abused his discretion in making this allowance, and accordingly we restore the amount of pre-judgment interest awarded by the trial judge, making the judgment $4,670.24. The entire judgment, of course, bears interest from the date of its entry in the trial court until payment. T.C.A. § 47-14-110.

Judgment will be entered in this Court accordingly, and all costs on appeal will be equally divided between the parties. Costs accrued in the trial court will be taxed to the respondent.

COOPER, C. J., and FONES, J., concur.

HENRY and BROCK, JJ., dissent.

HENRY, Justice

dissenting.

I dissent from so much of the Court’s opinion as affirms the Court of Appeals’ reversal of the trial judge’s award of a ten percent “bad faith” penalty.

The majority ignores the correct standard of review and, in so doing, falls into the same error as was committed by the Court of Appeals of substituting its judgment for that of the trial judge. Sec. 27-303, T.C.A. provides that in “[a]ll cases tried in a court of record without the intervention of a jury”, the hearing in the appellate court “shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the judgment or decree of the trial court, unless the preponderance of the evidence is otherwise.” (Emphasis supplied.) I cannot find from the record in this case that the evidence preponderates against the correctness of the conclusion reached by the trial judge. To the contrary, I find that the record amply supports the trial judge’s conclusion that the insurer was consciously indifferent to the insured’s repeated pleas for a settlement and that once the insurer began negotiations, it conducted them in less than good faith.

The record in this case shows no reason for withholding payment on the Johnsons’ loss. Although the insurer’s Answer denies all allegations except that the company insured the car in question, there was never any doubt that it was stolen and that the insurer was liable on the loss. The insurer’s case before the trial court was aimed at avoiding any interest or penalties on the loss, not on avoiding liability. While the Court of Appeals found that the insurer was not required to pay the loss because the Johnsons had demanded more than the car was worth, the trial court evidently found and the record shows that the figure was an off-hand estimate of the car’s value by Bobby Johnson to an adjustor, not a demand for a specific amount. Even if the estimate were a demand for payment, an excessive demand by the insured does not relieve the insurer of the obligation to bargain in good faith. State Automobile Ins. Co. of Columbus, Ohio v. Rowland, 221 Tenn. 421, 427 S.W.2d 30 (1969). Similarly the majority here finds the insurer justified in withholding payment because of “a genuine dispute between the parties . . . as to the fair value of the vehicle on the date of the theft.” But the trial court found that there could have been no dispute — at least not until the Johnsons became so exasperated at being ignored by their insurer that they hired an attorney to extract an offer from the company. Even after the insurer made the offer, which was $300.00 lower than the company’s own adjustor recommended and $900.00 lower than the “bluebook” price, the insurer made no new offer and broke several appointments to show Bobby Johnson possible replacement cars.

The Majority Opinion concedes that Sec. 56-1105, T.C.A. “allows a penalty in the discretion of the trier of fact . . . .” (Emphasis supplied.) Many years ago this Court, in Daugherty v. Stuyvesant Ins. Co., 169 Tenn. 300, 86 S.W.2d 1095 (1935), speaking through Justice McKinney, spoke of this discretion thusly:

It will be observed that this discretion is conferred upon the trial court and not upon the appellate courts, and the action of the trial court in this matter can only be reviewed or altered where he has abused his discretion. (Emphasis supplied.) 169 Tenn. at 303, 86 S.W.2d at 1096.

The majority, in effect, holds that the trial judge abused his discretion. I disagree.

This insurer’s conduct in such a clear case of liability could properly be found to be “not in good faith.” While the trial court might have refused to so find, I think it inconceivable that we should hold that awarding a ten percent penalty on these facts was an abuse of discretion.

BROCK, J., concurs.


author: PER CURIAM.

text:
    Priscilla P. DAVIS, Appellant, v. RUTHERFORD COUNTY, Tennessee, Eire Strayer Co., Southern Machinery Co., Appellees.
    Supreme Court of Tennessee.
    June 13, 1977.
   PER CURIAM.

OPINION

This controversy is foreclosed by the opinion of this Court in Cooper v. Rutherford County, 531 S.W.2d 783 (1975). Each member of the Court adheres to the views he expressed in that action.

AFFIRMED.


author: HARBISON, Justice.

text:
    David A. SWECKER, Petitioner, v. Larry HUGHEY et al., Respondents.
    Supreme Court of Tennessee.
    Oct. 3, 1977.
    G. P. Gaby, Greeneville, Tom H. Rogan, Rogersville, for petitioner.
    S. Morris Hadden, William C. Bovender, Kingsport, Winfield B. Hale, Jr., Rogers-ville, for respondents.
   OPINION

HARBISON, Justice.

In this personal injury action the trial court directed a verdict for the plaintiff, petitioner here, on the issues of liability against the respondents, a general contractor and a subcontractor. Plaintiff was employed by a supervising engineer and was injured by flying rock and debris from blasting operations conducted by the contractors.

The only issue submitted to the jury by the trial judge was that of damages, and the jury returned a verdict for the petitioner in the amount of eighty thousand dollars. On appeal to the Court of Appeals, each of the respondents contended that it was entitled to a directed verdict, and also that the trial judge had erred in directing a verdict for the plaintiff. It was insisted that an issue of fact was presented on the question of assumption of risk.

All of these issues were resolved in favor of the petitioner by the Court of Appeals and are not before us. The Court of Appeals, however, in a divided decision, suggested a remittitur of twenty-five percent of the verdict, reducing it to sixty thousand dollars. The petitioner accepted the remit-titur under protest and, pursuant to the provisions of T.C.A. § 27-119, filed a petition for certiorari with this Court, which was granted.

While we recognize and agree with the legal authorities cited by the Court of Appeals with respect to its prerogative and duty to suggest a remittitur, our review of the evidence in the instant case leads us to the conclusion that the amount of damages awarded by the jury and approved by the trial judge should not have been disturbed.

The petitioner was a nineteen-year-old college student at the time of the accident. He was working his way through college on a “co-op” program, in which he attended school and worked during alternate years. He had completed one year of engineering studies and was engaged in field work for the supervising engineer on a public utility project when he was injured. The record reveals no prior physical impairment or illness, and the petitioner was earning about $110 dollars per week at the time of the accident.

He was struck and rendered unconscious by a piece of rock, which fractured the right rear portion of his skull, driving debris and bone splinters into the brain. At surgery the broken fragments of skull were removed, together with injured brain tissue, the attending neurosurgeon testifying that the plaintiff was left with a hole in the skull, oval in shape, measuring about three inches by two inches. The portion of brain which was removed measured approximately one and one-half to two inches in circumference and about one inch in depth.

The accident occurred on November 9, 1973, and petitioner was hospitalized for about six weeks. He was placed on anti-convulsive medication which he took three times a day. When he first became ambulatory he experienced clumsiness and weakness in the manipulation of his left arm and leg, the left side of the body being controlled by the right side of the brain. This condition improved, but the petitioner continued to suffer from headaches. He apparently made a good recovery from the surgery, however, and was able to return to work during February 1974. He worked for the next six months and did not require further medical care during that interim, but continued to take Dilantin to prevent post-operative seizures. In August 1974 he was hospitalized again so that a plastic plate or covering could be inserted into his skull, this being affixed to the bony tissue by wire sutures. He was thereafter discharged and resumed normal activities.

During the spring of 1975, however, petitioner began to experience numbness in his left hand, and by the time of trial he testified that he had experienced some ten or eleven periods of numbness, weakness and brief periods of inability to use the left hand. These incidents were described by his physician as post-traumatic epilepsy. The neurosurgeon testified that scar tissue had formed in the area where a portion of the brain had been removed, and that petitioner could be subject to future seizures as the result of pressure from scar tissue. He also said that the removal of a portion of the brain of the petitioner limited certain fine movements or maneuvers in the extremities on the left side. The physician estimated that from all of the injuries and surgery to which petitioner had been subjected, he would retain twenty-five to thirty percent permanent partial disability to the body as a whole. Mortality tables showed a life expectancy in excess of fifty years for an average person of the petitioner’s age and sex. Petitioner incurred approximately five thousand, four hundred dollars in lost wages, medical and hospital expenses.

Neither of the respondents offered countervailing medical testimony, nor did counsel for the respondents argue the issue of damages to the jury.

While it is elementary that there is no exact yardstick or measurement to determine the appropriate size of verdicts in personal injury cases, we are of the opinion that a verdict of eighty thousand dollars for the serious and permanent brain injury sustained by this petitioner is not unreasonable, excessive or so far beyond amounts allowed in other similar cases as to warrant exercise by the appellate courts of their admitted authority to suggest reduction. Both the trial judge and the jury saw and observed the petitioner who, according to the oral argument of counsel, made an excellent impression as a witness, and who, under any view of the evidence, had sustained a most serious and permanent injury. Concededly, he had made a good recovery and the jury would certainly have been warranted in returning a smaller amount than that which they gave; on the other hand, the medical testimony is such that an even larger amount probably could have been sustained.

While in no way wishing to deter the Court of Appeals from the exercise of its important duties and authority in reviewing jury verdicts, we are of the opinion that this verdict should not have been disturbed and, pursuant to the provisions of T.C.A. § 27-119, we feel it appropriate to reinstate the award fixed by the jury.

The judgment of the Court of Appeals is accordingly reversed and the judgment of the trial court is reinstated at the cost of respondents.

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


author: COOPER, Chief Justice.

text:
    Eva WHITSON, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    Supreme Court of Tennessee.
    Oct. 3, 1977.
    Paul T. Gillenwater, H. Douglas Nichol, Knoxville, for appellant.

      John W. Wheeler, Hodges, Doughty Carson, Knoxville, for appellee. &
   OPINION

COOPER, Chief Justice.

In this workmen’s compensation action, the chancellor awarded the employee temporary total disability benefits for the period from March 12, 1976, through April 26, 1976. The employee appealed, insisting that she is permanently disabled as the result of a work-connected injury, and that she is entitled to recover medical expenses incurred by her in the treatment of her injuries. The appellee makes no issue on appeal either as to the adequacy of notice of injury or as to the finding of the chancellor that the employee suffered an injury by accident in the course and scope of her employment, though both issues were strenuously contested in the trial court. We note this to emphasize that this case should not be considered to be authority on these issues.

The record shows that Eva Whitson was employed by Southern Athletic, Inc., on February 2,1976, as a sewing machine operator. In mid-February, Mrs. Whitson began experiencing pain and stiffness in her neck, shoulder, and arms. The pain became progressively worse. On March 10, 1976, without consulting with her employer, Mrs. Whitson went to Dr. Charles Gouffon for treatment of her complaints. Mrs. Whitson reported off from work on March 15, 1976, saying that she “was sick and that [she] couldn’t get an appointment with the Doctor until Thursday, and [she] couldn’t tell her [supervisor] anything until after [she had] talked to the doctor.” On April 8, 1976, counsel for Mrs. Whitson notified Southern Athletic that Mrs. Whitson had sustained injuries to her neck and upper back and was making claim for workmen’s compensation benefits. Mrs. Whitson continued to be treated by Dr. Gouffon until April 26, 1976, when she was discharged to return to work. On April 28, 1976, Mrs. Whitson became a patient of Dr. William F. Gallivan and continued under his care until the date of trial.

The two treating physicians agreed on the nature of Mrs. Whitson’s injury, but disagreed as to the extent and the permanency of the injury. We, of course, are required to accept the trial judge’s findings on contested issues, where there is any material evidence to support his findings. General Shale Prod. Corp. v. Casey, 202 Tenn. 219, 303 S.W.2d 736 (1957). Here Dr. Gouffon testified that Mrs. Whitson had a “chronic strain of the trapezius and para-cervical muscles,” which “would certainly go away if we gave it enough time.” Dr. Gouffon further testified that Mrs. Whitson was physically able to return to work on April 26, 1976, and that she had no permanent disability as the result of her work-connected injury. The chancellor accepted Dr. Gouffon’s testimony, and we must also.

The chancellor denied Mrs. Whitson a recovery of medical expenses incurred in the treatment of her injury, commenting that she had chosen her doctor without first consulting with her employer and that, consequently, her employer was not liable for payment of the medical charges. We disagree.

T.C.A. § 50-1004, provides that:

For not exceeding three (3) years after notice of injury, the employer or his agent shall furnish free of charge to the employee such medical and surgical treatment ... as may be reasonably required . . . . The injured employee shall accept the medical benefits afforded hereunder; provided, that the employer shall designate a group of three (3) or more reputable physicians or surgeons . from which the injured employee shall have the privilege of selecting the operating surgeon or the attending physician .

As noted in Floyd v. Tennessee Dickel Distilling Company, 225 Tenn. 65, 463 S.W.2d 684, 687 (1971), “the statute is clear — after notice of injury the employer must furnish medical treatment to the employee.” In this case, the chancellor found that Mrs. Whitson gave notice of injury to Southern Athletic, Inc. There is nothing in the record to indicate that, thereafter, Southern Athletic tendered or furnished medical treatment as required by statute. It follows then that the appellant is entitled to recover the cost of the reasonably necessary medical care she obtained for herself. Floyd v. Tennessee Dickel Distilling Company, supra. The reasonably necessary medical expenses in this case would be the cost of the necessary services rendered by Dr. Gouffon, which was shown to be $127.00, and necessary hospital expenses incurred by Mrs. Whitson at Dr. Gouffon’s direction. The amount of the hospital expense was not specifically shown in the record, but was included in a general stipulation of expenses. It may be that, having elected to enter into a general stipulation, the parties can agree on the cost of hospitalization of Mrs. Whitson. If so, judgment will be entered in this court for the agreed amount, plus Dr. Gouffon’s charges. In the event the parties can not agree on the cost of necessary hospitalization, an order will be entered remanding the cause to the Chancery Court of Knox County for trial of the issue. In either event, costs of the appeal are adjudged against the parties equally.

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


text:
    Edith Lynn LADD, Appellant, v. ROANE HOSIERY, INC., and Charles E. Graves, Appellees.
    Supreme Court of Tennessee.
    Oct. 10, 1977.

      Gerald F. Largen, Kingston, for appellant.
    J. Frank Qualls, Harriman, for appellees.
   OPINION

COOPER, Chief Justice.

The plaintiff in this cause, Edith Ladd, was employed by Roane Hosiery, Inc. (Roane) from May 16, 1961, until she was released on April 18, 1975. She brought this action against Roane and against Charles Graves, who is employed by Roane as a supervisor, alleging that Graves had induced Roane to breach or terminate her employment contract, that the separation notice issued by Roane was libelous, that Roane was negligent in having discharged her on Graves’ recommendation, and that both defendants were “guilty of the common law tort of outrageous conduct.” On the defendants’ motion, the trial judge dismissed the action.

The defendants’ motion to dismiss was predicated upon the ground that the plaintiff had failed to state a claim upon which relief could be granted. When ruling on such a motion, the facts pleaded and the allegations made must be viewed in the light most favorable to the plaintiff, with every doubt resolved in his behalf. The complaint should be dismissed only if it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 1102, 2 L.Ed.2d 80 (1957). See also Huckeby v. Spangler, 521 S.W.2d 568 (Tenn.1975).

On appeal, the plaintiff has abandoned all claims for relief stated in her complaint other than that for the wrongful procurement of the breach or termination of her contract of employment. As a party to a contract cannot be held liable for procuring its own breach or termination of that contract, it follows that the plaintiff at present does not purport to state a claim for relief against Roane. See, e.g., Allison v. American Airlines, 112 F.Supp. 37 (N.D.Okl.1953); Annot., 26 A.L.R.2d 1227, 1269-1271 (citing cases). Accordingly, the dismissal of this action with respect to Roane is affirmed.

The plaintiff’s remaining claim is against defendant Graves for “procurement of the breach of [her employment] contract.” In her complaint she alleges that Graves “induced the corporation to terminate or breach the contract of employment between [her] and the corporation.” She further alleges that Graves “had neither reason, nor excuse [for doing so], and was actuated only through a spirit of vindictiveness and malice . . .” The trial judge held that this was insufficient to state a claim for relief against Graves.

An individual has a property interest in his labor, and the right to work without unjustified interference. Large v. Dick, 207 Tenn. 664, 343 S.W.2d 693 (1960). One who intentionally interferes with this right, causing the employee to be discharged, is liable in tort for the resulting damages. Dukes v. Brotherhood of Painters, 191 Tenn. 495, 235 S.W.2d 7 (1950). The essential allegations of such a claim are that the defendant intentionally and without justification procured the discharge of the employee in question. Dukes v. Brotherhood of Painters, supra; 57 C.J.S. Master & Servant § 630.

The allegations of the complaint, as set forth above, are sufficient to set forth a claim that Graves unlawfully and without justification procured the discharge of the plaintiff by Roane. This may not have been the precise theory upon which the plaintiff intended to base her claim when she framed her complaint. However, where, as here, the facts are sufficient to set forth a valid claim for relief under some theory of recovery, it is immaterial that this theory is not the one originally envisaged by the plaintiff. The complaint is still sufficient to withstand a motion to dismiss for failure to state a claim upon which relief can be granted. See, e.g., Bramlet v. Wilson, 495 F.2d 714 (8th Cir. 1974).

Furthermore, although the defendants urge to the contrary, the plaintiff has alleged nothing in her pleadings to indicate that she will be unable to establish her claim for relief at trial. While her employment contract may have been terminable at the will of Roane this does not absolve defendant Graves from liability if he wrongfully induced that termination. Schwab v. Int. Ass’n of Bridge, etc., Loc. 782, 482 S.W.2d 143 (Tenn.App.1972). Neither does her allegation that defendant Graves was “a supervisor” employed by Roane serve to defeat her claim. It is possible that Graves would not be liable for procuring the dismissal of the plaintiff if that action was within the scope of his duties at Roane. See, e.g., Lyon Ford, Inc. v. Ford Marketing Corp., 337 F.Supp. 691 (E.D.N.Y.1971); Annot., 26 A.L.R.2d 1227, 1267 (citing cases). However, at no point in her pleadings does the plaintiff admit that Graves’ acts were within the scope of his duties, and the mere possibility that such a defense may be established at some point does not justify the dismissal of the plaintiff’s claim at this stage of the proceedings.

Therefore, in light of the liberal construction that must be given a complaint tested by a motion for judgment on the pleadings under T.R.C.P. 12.03, the dismissal of the plaintiff’s action against Graves for his allegedly wrongful procurement of her discharge by Roane was improper, and is reversed. In all other respects the judgment below is affirmed. The case is remanded for further proceedings not inconsistent with this opinion. The costs will be divided equally between the plaintiff and defendant Graves.

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


text:
    Charles T. DAWSON and wife, Alice Dawson, Appellants, v. ADVANCE MORTGAGE CORPORATION, Appellee.
    Supreme Court of Tennessee.
    Oct. 11, 1977.
    Robert H. Green, Maryville, for appellants.
    J. W. Baker, Knoxville, for appellee.
   OPINION

PER CURIAM.

Appellants brought this suit against the holder of a retail installment contract, seeking to recover one of the statutory penalties for violation contained in T.C.A. § 47-11-107(b) and (c). Appellee had purchased the contract from the retail seller at some time after the instrument was executed on September 5, 1975. The contract provided for 120 monthly installments commencing October 5, 1975.

Pursuant to the provisions of T.C.A. § 47-11-107(d), appellants gave written notice to appellee of an alleged violation of the time-price differential provisions of T.C.A. § 47-11-103(d), this notice having been given by letter dated November 19, 1976. The complaint alleged that more than thirty days elapsed without correction of the alleged violation, and suit was thereafter instituted on January 3, 1977.

Appellee interposed a number of defenses not pertinent here, but by its amended answer it pled the statute of limitations of one year for the recovery of statutory penalties as provided in T.C.A. § 28-304. It further relied upon the provisions of T.C.A. § 28-102, to the effect that when a right of action exists, but a demand is necessary to entitle the plaintiff to sue, the statute of limitations “commences from the time the plaintiff’s right to make the demand was completed, and not from the date of the demand.”

It is clear both from the language of the statute and from the cases construing it that the penalties here sued for are statutory penalties within the purview of T.C.A. § 28-304, and it is also clear that written notice to the alleged violator of the Retail Installment Sales Act is a condition precedent to the maintenance of an action to recover such penalties. See Southland Tractors, Inc. v. H & N Constr. Co., 52 Tenn.App. 664, 377 S.W.2d 789 (1963), holding that failure to give the requisite written notice was fatal to a claim for the penalty.

The trial judge sustained appellee’s motion for judgment on the pleadings, based upon the one-year statute of limitations, and we are of the opinion that he was correct in doing so. Appellant properly points out that suit was instituted within one year after the lapse of thirty days from the date of written notice, but the violation of the Retail Installment Sales Act complained of occurred, if it occurred at all, on the date when the contract was executed. There is no allegation in the complaint indicating any reason why demand could not and should not have been made immediately for correction of the alleged violation; consequently there are no allegations to remove the claim from the operation of T.C.A. § 28-102, above quoted, and the one-year statute of limitations applicable to claims for a statutory penalty. There is no suggestion of any disability on the part of appellants to make the requisite demand, of fraudulent concealment of the cause of action, or of any other basis for tolling the statute of limitations or completion of appellant’s “right to make the demand” under T.C.A. § 28-102. We find nothing either in the terms of the latter statute or the cases construing it limiting its operation to demand promissory notes, as suggested by appellants.

There was no effort made to amend the complaint in the trial court, either before or after the appellee’s motion for judgment on the pleadings was ruled upon.

In this Court appellants assert, apparently for the first time, a claim that there was a continuing violation of T.C.A. § 47-11-103(d), in that each monthly payment contained a portion of the illegal or excessive charges, and that the acceptance of each payment by appellee “constituted a separate and recurring violation” of the statute.

There are several difficulties with this theory. Even if such a claim were tenable in a suit for a specific penalty, it is not the basis upon which this complaint was filed. The complaint simply states that the contract “on the face of it” is in violation of the statute “as the finance charge therein exceeds the maximum allowed . . . .” This seems to be an allegation that the violation occurred when the contract was executed. Further, there is no reference whatever in the complaint to any monthly payments having been made by appellants or received by appellee, nor were any allegations of an alleged continuing violation and renewal of the alleged cause of action contained in the original complaint or supplied by amendment. Nothing in the written notice given to appellee suggested any such theory, the notice simply stating that the contract “is in violation of the Tennessee Retail Installment Sales Act specifically Tennessee Code Annotated section 47-11-103(d).” The suit was filed exclusively and specifically to recover one of the statutory penalties plus counsel fees. There was no alternative relief sought, such as reformation or recovery of the excess charges. There was no demand for equitable or general relief.

The judgment of the trial court is affirmed at the cost of appellants.


author: TODD, Judge.

text:
    Mary Frances Schmitt LIGON, Plaintiff-Appellee, v. Ronald Sanders LIGON, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    April 1, 1977.
    Certiorari Denied by Supreme Court Aug. 22, 1977.
    Abridged for Publication Oct. 13, 1977.

      Maclin P. Davis, Jr., George Wesley Bishop, III, Waller, Lansden, Dortch & Davis, Nashville, Tenn., for plaintiff-appellee.
    Charles H. Warfield, Parris, Evans & Warfield, Nashville, Tenn., for defendant-appellant.
   TODD, Judge.

ABRIDGED OPINION

In this divorce case, the defendant-husband has appealed from a decree awarding to the plaintiff-wife an absolute divorce, custody of three minor children, household goods and furniture, the right of occupancy of a residence during minority of the youngest child, alimony in solido of $600,-000.00 subject to certain limitations, and $60,000.00 attorney fee. Other provisions of the decree will be set in detail as required.

The appellee has moved for dismissal of the appeal on the ground that the $250.00 bond filed by appellant is insufficient. The motion concedes that a broad, general appeal was granted by the Trial Judge; but it is pointed out that the appellant’s assignments of error are not directed at the award of divorce, but solely at the award of alimony and attorneys fees, for which reason (it is insisted) the appeal bond should be for $660,000.00 because of T.C.A. § 27-313 which provides as follows:

“27-313. Bond on appeal of money decree. — Where decrees are for a specific sum of money and against the party in his own right, the appeal bond shall be for the amount of the decree and damages and cost. [Code 1858, § 3164 (deriv. Acts 1831, ch. 49, § 1); Shan., § 4896; Code 1932, § 9045.]”

This provision has reference to decrees or judgments in the chancery courts. Bilbo v. Allen, 51 Tenn. (4 Heisk.) 31 (1871); Markham v. Haddad, 2 Tenn.App. 370 (1926).

This statute is applicable to decrees or judgments for alimony in the Chancery Court. Going v. Going, 144 Tenn. 303, 232 S.W. 443 (1921) (a chancery case).

The present case was not tried in Chancery Court, but before the Circuit Court of Williamson County.

It might be plausibly argued that there is no difference between a divorce decree in circuit and the same decree in chancery. It might be argued with equal force that § 27-313 should apply to all described cases, whether in chancery or circuit; but the appeals statutes must be applied as enacted by the legislature and not as the courts or counsel may conceive they should have been enacted.

In Troutt v. Troutt, 35 Tenn.App. 617, 250 S.W.2d 372 (1952) (a circuit case), this Court held that divorce proceedings, to all intents and purposes, are chancery proceedings, but are sui generis, and differ in many respects from equity cases. In the same case, it was held that a husband who had posted bond for costs was entitled to a review of the entire decree, including alimony and attorneys fees.

Appellee insists that, since appellant assigns error only as to the award of alimony, this is a limited appeal relating to a money judgment and therefore subject to § 27-313. Jurisdiction having been transferred to this Court by general appeal, it is difficult to conceive that the scope of review by this Court would be limited and the amount of appeal bond belatedly increased by the failure of appellant to assign error as to all aspects of the judgment. If this were true, this Court would be limited to assignments of error in its “de novo review” required by statute (§ 27-303, T.C.A.). It is generally conceded that this Court has authority to notice and correct errors whether assigned or not. Rule 13(4) Rules of Court of Appeals.

No authority has been cited or found for the dismissal of the appeal on the ground stated, hence the motion to dismiss is respectfully overruled.

The appellant-husband has filed five assignments of error and the appellee-wife has filed three assignments of error, all of which question the provisions of the decree in regard to alimony and other provisions for the support of the wife and children.

The parties were married in 1958. They have three sons, born in 1962, 1964 and 1967. In June, 1974, defendant removed from the home of the parties and established a separate residence. In August, 1974, defendant sued for divorce, but his suit was dismissed in October, 1974. In the present case, filed by the wife in 1975, the Trial Judge found that defendant has been guilty of cruel and inhuman treatment, as alleged in the original complaint.

During the marriage, the defendant has been successful in business and has accumulated substantial holdings. His income has been and is substantial; and, prior to the inception of marital difficulty, the family lived on a handsome scale. There is evidence that the expense of maintaining such a manner of life was and is $4,876.00 per month.

Defendant’s auditor testified that, in 1975, defendant’s salaries and other compensation for services amounted to $78,-786.00 before taxes. Other items of rent, interest, etc., are shown to have increased his total income for 1975 to about $110,-000.00. For the first six months of 1976, defendant’s net income is shown to be $40,-008.14.

The foregoing is sufficient to establish a factual basis for a liberal allowance to provide for the support of defendant’s wife and children in accordance with the standard of living established by him prior to the separation. This conclusion is not seriously disputed on appeal.

The real issue on appeal is the form of provision of support, that is, whether same should be by transfer of assets in solido or by periodic payments. Defendant insists that provision should be made by periodic payments without transfer or encumbrance of assets so that he (defendant) may be permitted to continue to deal freely with all his assets in order to derive a profit therefrom. Plaintiff, on the other hand, prefers the security of a present allocation of property and/or the encumbrance of property to assure periodic payments.

The financial dealings of defendant and his holdings are so intricate, that it is difficult to arrive at an accurate and comprehensive understanding of same. According to his December 31, 1975 balance sheet, defendant’s net worth was $973,077.14. However, plaintiff was successful in showing that certain assets were not shown at their true and actual value on the balance sheet.

In sum and substance, it is shown that defendant’s net worth on December 31, 1975, was approximately $2,000,000.00 more than the $988,354.85 shown on his balance sheet and that his true worth was approximately $3,000,000.00. The Trial Judge found defendant’s actual net worth to be approximately $2,400,000.00.

The facts being as stated, the question remains what financial provision should be made for the plaintiff-wife and her children.

The Trial Judge disposed of this issue as follows:

1. Plaintiff-wife was awarded all of the furnishings and personal effects in the home, with certain exceptions. On appeal, no question is made of this award.

2. Plaintiff was granted the right to occupy the residence situated on the farm belonging to defendant until the 18th birthday of the youngest child (1985). Defendant was required to pay taxes and insurance on said residence but was permitted to mortgage the farm including the possessory interest granted to plaintiff.

3. Defendant was required to hold plaintiff harmless from any liability on various debts of defendant on which she was liable. This provision is not questioned on appeal.

4. Plaintiff was awarded judgment in the amount of $600,000.00 for alimony in solido, provided no execution should issue thereon so long as defendant should pay interest at eight per cent in monthly installments.

5. Plaintiff was awarded judgment for $60,000.00 attorneys fees payable with eight per cent interest in three annual installments.

6. A lien was declared upon all property of Christus Biblical Gardens, Inc., to secure the two aforesaid judgments.

7. Defendant was required to pay directly all of the medical, dental and educational expenses of the children. This provision is not questioned on appeal.

This Court concurs generally with the conclusions of the Trial Judge as to the amount of periodic payments which should be made and the provision of alimony in solido. Specifically, this Court agrees that the eight per cent interest upon the $600,-000.00 judgment ($4,000.00 per month) is a reasonable periodic payment to be required of defendant. Also, the amount of $600,-000.00 alimony in solido is deemed reasonable.

However, this Court considers that the general intent of the decree of the Trial Judge would be more effectively carried out by modification of certain details of the decree, particularly by allocating the $4,000.00 monthly payments to specific purposes, i. e., periodic alimony, child support, and installments of alimony in solido. Also, a more specific and secure provision for a home for the mother and children and a more flexible provision for lien security is in order.

A reasonable resolution of the home problem would be to vest in the plaintiff absolutely the homeplace and surrounding lawn with the option in defendant to repurchase same within eight years for its actual present value plus eight per cent interest thereon until purchase. The extent of lawn and value of the house and lawn should be determined by the Trial Judge after hearing further evidence. This solution would assure plaintiff of the use of the home or funds to buy another of equal value, and would reserve to defendant the opportunity to retain or sell the farm and home as a unit.

The next question for resolution is the amount of child support. As noted above, the Trial Judge provided $48,000.00 per year or $4,000.00 per month for support of both plaintiff and children, but income taxes (both federal and state) would reduce the net benefit of this provision to less than $3,000.00 per month, and the entire payment would be deductible from defendant’s taxable income.

If one-half of the $4,000.00 per month, or $2,000.00 be assigned to plaintiff as periodic alimony, this amount would be excludable from defendant’s taxable income and taxable to plaintiff.

If the other half of the $4,000.00 per month, or $2,000.00 should be assigned to child support, this amount would not be excludable from the taxable income of defendant and would not be taxable to plaintiff. On this ground, the $2,000.00 might reasonably be reduced to $1,500.00 per month, that is, $500.00 per child. The $500.00 thus excluded from child support, as well as future reductions as the children reach majority, will enable defendant to make corresponding installment payments on alimony in solido.

It therefore seems reasonable to provide in the decree for payment of $2,000.00 per month periodic alimony so long as plaintiff remains unmarried and at least one of the children remains a minor.

It also seems reasonable to require payment to plaintiff of $500.00 per month support for each child during his minority, subject to the statutory reservation of authority to change custody or amount of support.

Alimony in solido should include the homeplace, or value thereof, as heretofore provided, together with a cash provision of $500,000.00 payable $500.00 per month until the eighteenth birthday of the oldest child, $1,000.00 per month thereafter until the eighteenth birthday of the middle child, and $1,500.00 per month thereafter until the eighteenth birthday of the youngest child at which time the entire unpaid balance of said $500,000.00 alimony in solido shall be paid in full to plaintiff.

The next problem for solution is that of security for the payment of alimony and support and performance of other provisions of the decree. Because of the varied business interests of defendant, he seems to have a credible reason why none of his assets should be encumbered. This, however, is not a valid reason why his wife and children should not be assured of his support. This is especially true because of his behavior in respect to support after his departure from the home.

Nevertheless, it is considered that defendant, himself, should select the properties, funds, or other means of security, subject to the approval of the Trial Judge. Said properties, funds, or other security, should be sufficient in value and/or assured income to provide income equal to $4,000.00 per month (the aggregate of periodic alimony, child support and installments of alimony in soli-do) and to assure final payment of alimony in solido as mentioned above.

Until defendant provides such fund or other security satisfactory to the Trial Judge, a lien should be declared against the farm and capital stock of Christus Biblical Gardens, Inc., to assure performance of the decree. A suitable injunction should restrain the impairment of present net worth of the corporation, which is wholly owned by defendant.

As to the amount of counsel fee, this Court is without evidence, either in the record or otherwise, to make a determination.

Contrary to widespread belief and the arguments in brief, there is no rule in Tennessee that the attorney who represents a wife in securing a divorce is entitled to recover from the husband a fee equal to 10 per cent of the amount of alimony granted to the wife.

Ordinarily, if the wife is financially able to procure counsel, there is no occasion for fixing the amount of her counsel’s fee which should be a matter of contract between attorney and client.

If the wife is financially unable to procure counsel, then it is in order for the Court to require the husband to pay such fees pendente lite as are necessary to secure the services of counsel for her.

If, in the final decree, the wife is awarded alimony in solido adequate for her needs and attorneys fees, there is again no occasion for the Court to fix a fee, which should be set by agreement of counsel and client. This principle does not, of course, deprive the Trial Judge of the discretion to fix attorneys fees in proper cases.

Where, however, the final decree does not provide funds out of which counsel may reasonably be paid, it is in order for the Court to award to the wife as additional alimony such amount as will reasonably enable her to pay reasorable compensation to her counsel. Such is the situation in the present case.

Where a court undertakes to fix an amount to be paid by the husband to the wife for payment of her counsel, consideration should be given to the amount of time spent in the representation of client and the usual, recognized, charge for the time spent. Of course, the seriousness of the matter being handled, the experience and reputation of the attorney involved, and other matters mentioned in DR 2-106, Code of Professional Responsibility, are also entitled to consideration.

Upon remand, opportunity should be afforded for the introduction of evidence to establish a reasonable basis for fixing an amount to be awarded to plaintiff for payment of her attorney.

In summary, the decree of the Trial Judge is modified as follows:

The provision for occupancy of the residence by plaintiff and maintenance thereof by defendant, the award of judgment of $600,000.00 for alimony in solido and $60,-000.00 for attorneys fees and the lien upon the properties of Christus Biblical Gardens, Inc. (items 2, 4, 5 and 6, supra) are deleted and, instead, the decree will provide as follows:

a. Payment to plaintiff of child support of $500.00 per month for each minor child, to continue so long as plaintiff retains principal custody of such child and said child remains a minor, all subject to further orders of the Trial Court.
b. Payment to plaintiff of periodic alimony of $2,000.00 per month, to terminate upon her remarriage or the eighteenth birthday of the youngest surviving child, whichever occurs first.
c. Payment to plaintiff of alimony in solido of $500,000.00 at the rate of $500.00 per month until termination of oldest child’s support, $1,000.00 per month thereafter until termination of middle child’s support, $1,500.00 per month thereafter until termination of youngest child’s support and remainder at the termination of youngest child’s support.
d. The award to plaintiff of the residence of the parties and surrounding lawn as determined by the Trial Judge on remand, the evaluation of said residence and lawn by the Trial Court, and the option of defendant to repurchase said tract within eight years for the value so determined plus eight per cent interest from date of determination of value.
No interest shall be chargeable upon alimony in solido except after default in payment at the times stated herein, and then only upon the amount in default and for the period of default.
e. A lien upon the capital stock of Christus Biblical Gardens, Inc., and the remainder of the farm of defendant to guarantee performance of all of the provisions of the decree, provided that such lien may be released upon defendant providing a secure trust fund or other security approved by the Trial Judge sufficient to assure performance of all provisions of the decree.
f.The matter of provision of compensation for counsel for plaintiff is reserved for determination by the Trial Court after hearing further evidence.

As modified, the decree of the Trial Judge is affirmed. The costs of this appeal are taxed against defendant-appellant. The cause is remanded for further eviden-tiary hearings and rulings made necessary by this opinion, for implementation of the decree as modified and other appropriate proceedings.

Modified, Affirmed and Remanded.

SHRIVER, P. J., and DROWOTA, J., concur.


author: NEARN, Judge.

text:
    Margaret Olene Kendrick WELLS, Appellant, v. Arthur David WELLS, Appellee.
    Court of Appeals of Tennessee, Western Section.
    April 14, 1977.
    Certiorari Denied by Supreme Court Oct. 11, 1977.

      Pierce Winningham, Jr., Jackson, for appellant.
    James P. Diamond, Jackson, for appellee.
   NEARN, Judge.

Plaintiff, Margaret Wells was awarded a divorce below and a property division was made by the Chancellor. Plaintiff is dissatisfied with the Court’s division of the property and has appealed from that portion of the decree only. The marriage dissolved by the Chancellor is the second marriage to each other by the parties.

The Chancellor awarded the plaintiff all the real property of the parties, all the furniture contained in the residence, a 1975 Cadillac automobile, stock in H.F.S. Corporation, A. T. & T. stock which plaintiff obtained while employed at A. T. & T., and all funds in the Tellico Credit Union joint account of the parties. The defendant was ordered to maintain $20,000.00 in life insurance for the benefit of his children and to pay $2,000.00 alimony in solido as attorney fees to plaintiff’s lawyer.

During this marriage of the parties, the. defendant purchased a 49 percent partnership interest in a liquor store. During the pendency of the divorce, defendant sold that interest for the sum of $52,500.00. The Chancellor refused to award plaintiff any part of that sum and that is what this appeal is all about.

In addition to leaving defendant’s interest in the $52,000.00 undisturbed, the Chancellor awarded the defendant a 1965 Buick automobile, a 1974 Caprice automobile, a 1968 pickup truck, and 32 shares of A. T. & T. which he obtained while employed by A. T. & T.

It is contended by counsel for appellant that plaintiff is entitled to one-half of the $52,000.00 because the 49 percent partnership interest in the liquor store was acquired by defendant under an express oral trust with the plaintiff being the beneficiary of one-half of defendant’s interest. It is argued that the proof will so show.

We concur in the Chancellor’s finding that there was no express trust ever intended. The parties materially differed on this point in their testimony and where an issue must be determined solely on credibility of witnesses, an appellate court should not disturb the finding of the trier of that issue who had the opportunity, not afforded us, of observing the manner and demeanor of the witnesses. Linder v. Little (1972 Tenn.App., M.S.) 490 S.W.2d 717 and numerous cases cited therein.

Counsel for appellant also argues that if the proof fails in showing an express trust, the Chancellor erred in not finding that defendant held his business partnership interest under either a constructive or resulting trust. This argument is without merit. Constructive or resulting trusts are judge-created trusts or doctrines which enable a court, without violating all rules of logic, to reach an interest in property belonging to one person yet titled in and held by another. In this case the Chancellor could have reached the $52,000.00 held by the defendant by a much more direct route had he cared to do so. See T.C.A. § 36-821 (alimony) or § 36-825 (adjustments of interest in jointly held property).

In his findings of fact, the Chancellor found that:

“_ both parties placed their income into the family budget, . . . During the operation of the Package Store the parties paid the mortgages, which were made for the purchase money for the interest in the Package Store. These payments were made from commingled funds of the parties; however, the Court finds that these obligations were satisfied through earnings from the Package Store and the sale of a parcel of real estate located on Whitehall Street in Madison County. The Whitehall Street property sold for $30,000.00. The Court finds that Mrs. Wells received cash benefits of approximately one-half of the sale price of said real estate. The Court concludes from the evidence that the parties did not intend that Mrs. Wells would be a partner or hold any legal interest in the Package Store. It was conceded by Mr. Wells that all the property owned by each of them was treated as ‘their’ property. The Court, therefore, concludes that there is no basis to impress any trust upon the proceeds from the sale of the liquor store, but will consider all the properties owned by the parties in making a property settlement between them.”

Thus, it may be seen that the Chancellor found partnership interest as well as real property and other interests were accumulated by the joint efforts of the parties while they were husband and wife. This is a finding that the property was jointly held property within the meaning of T.C.A. § 36-825. Langford v. Langford (1967) 220 Tenn. 600, 421 S.W.2d 632. The Chancellor was evidently aware of that feature of the law for he first held that plaintiff held no legal interest in the package store. He then noted that Mr. Wells conceded that all the property was “their” property; followed by the statement that therefore, there was no need to impress any trust on the liquor store proceeds, as he would consider all the properties in making a property settlement. We believe the Chancellor properly considered the disputed property under T.C.A. § 36-825 as jointly owned property. Simply because he did not award any of the liquor store proceeds to Mrs. Wells does not mean that he felt he was unable to do so. We believe the findings of the Court clearly show that the Chancellor was aware of his powers. He simply did not believe an equitable adjustment required that Mrs. Wells receive any part of the liquor store proceeds.

We concur in the Chancellor’s distribution of assets and believe that in this case the Chancery Court did what it was created to do — equity.

All Assignments of Error are overruled and the decree below is affirmed with costs adjudged against appellant and surety.

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

CARNEY, P. J., and MATHERNE, J., concur.


text:
    J. D. NORMAN, Appellant, v. LIBERTY LIFE ASSURANCE COMPANY, Appellee.
    Court of Appeals of Tennessee, Western Section.
    May 12, 1977.
    Certiorari Denied by Supreme Court Oct. 11, 1977.
    Joe M. Haynes, Tyree B. Harris, Nashville, for appellant.
    Charles C. Trabue, III, Nashville, for ap-pellee.
   NEARN, Judge.

The legal issue is whether or not there was coverage under a group disability insurance policy issued by Liberty Life Assurance Company of Boston.

J. D. Norman, an employee of Newspaper Printing Corporation was an insured under the terms of defendant’s policy, which policy became effective on January 1,1972. In 1973, Norman underwent a coronary bypass operation. The insuror denied that the policy afforded coverage and this suit resulted.

The policy contains the following provision:

“PRE-EXISTING CONDITIONS — No account shall be taken of any day of disability because of an injury or sickness on account of which any treatment shall have been given, or any charge shall have been incurred, or the protected person shall have been absent from work, within the period of 3 months immediately preceding the effective date of insurance with respect to the protected person, which day precedes the elapse of a period of 3 months, entirely subsequent to such date, during which period such person shall have received no treatment, shall have incurred no charge, and shall have not been absent from work on account of such injury or sickness.”

It is agreed that the provision means that if an employee on January 1, 1972, was suffering from an injury or sickness on account of which any treatment had been given or any charge incurred within three months prior to January 1, 1972, no coverage would be afforded for that injury or sickness unless after January 1, 1972, the insured went for a period of three months during which he received no treatment for the initially uncovered injury or sickness and had not been absent from work. In the latter event, coverage would be afforded.

The fact issue was whether or not Norman underwent treatment during the prohibited period for the disease for which claim was made. A jury was demanded, but at the close of plaintiff’s proof the Trial Judge granted defendant’s motion for a directed verdict.

The appellate issue is whether there was any material disputed evidence from which the minds of reasonable men might conclude that plaintiff was not under treatment as meant in the policy provision. If there is such evidence present, the matter must be submitted to the jury. In making this determination, both this Court and the Trial Court must look at all the evidence, take the strongest legitimate view of it in favor of the opponent of the motion and allow all reasonable inferences from it in his favor; discard all countervailing evidence and if then there is any dispute as to any material determinative evidence or any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied. Goings v. Aetna Casualty & Surety Co. (1972 Tenn.App., W.S.) 491 S.W.2d 847.

The facts in their light most favorable to plaintiff are that in 1970 Norman became ill and was placed in a hospital. His condition was diagnosed by Dr. High, Norman’s physician, as “arteriosclerotic cardiovascular disease with ischemic heart disease denoted by probable subendocardial myocardial infarction.” Ischemia denotes an inadequacy of blood supply. The doctor did not advise Norman that he had or might have had a heart attack. Dr. High placed Norman on a diet, advised him to quit smoking, recommended walking two miles per day and prescribed Isordil to be taken by Norman on a daily basis to increase the blood supply to the heart and Valium as a tranquilizer. Also, Norman took nitroglycerin tablets whenever he had angina pector-is or heart related chest pains. Norman returned to Dr. High at two or three month intervals for examination. Usually an electrocardiogram reading was taken at each visit. From 1970 until shortly before the coronary bypass operation, Norman stayed on his diet, cut down on his smoking, continued walking (at least until the chest pains became too bad) and continued taking Valium, Isordil, and nitroglycerin tablets and continued with his visits to Dr. High.

Counsel for appellant argues that Norman did not know that he had had a heart attack in 1970, if in fact he had one, and that the “treatment” suggested by Dr. High was not treatment within the meaning of the policy but was prophylactic or preventative in nature and not treatment for a “heart attack” and the jury could have so found. We think not.

Whether Norman knew he had suffered a heart attack in 1970 is completely irrelevant to the issue. Norman made no representation one way or the other to obtain coverage. The existence of a state of facts, not knowledge of them, controls this case.

Neither does it make any difference whether or not Norman had actually suffered a “heart attack” in 1970. The record in this case reveals that a “heart attack” is an event which occurs when there is an insufficient supply of blood to the heart muscle. A myocardial infarction is the medical term for what laymen call a heart attack. A myocardial infarction is the death of all or a portion of the tissue of the heart muscle, usually caused by an insufficient blood supply. Angina pectoris is the manifestation of chest pains triggered by a growing blood deficiency to the heart. Increasing the blood supply will generally stop the pain of angina and no heart tissue death or myocardial infarction results.

Dr. High’s testimony is to the effect that Norman was being treated for ischemic heart disease or a heart blood deficiency which treatment began prior to the inception date of the policy and continued until the coronary bypass operation which operation had as its purpose the correction of that blood deficiency to the heart. All of the treatment was prescribed to aid the heart blood supply and in an attempt to eliminate or alleviate the blood deficiency.

We find no error, overrule the Assignment of Error and affirm the judgment below.

Costs of appeal are adjudged against appellant and surety.

Done at Nashville in the two hundred and first year of our Independence and in the one hundred and eighty-second year of our Statehood.

MATHERNE and DROWOTA, JJ., concur.


author: BYERS, Judge.

text:
    Daniel RUCKER, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    July 6, 1977.
    Certiorari Denied by Supreme Court Oct. 11, 1977.

      Thomas Noel Phillips, Nashville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Jack Seaman, Asst. Atty. Gen., Thomas H. Shri-ver, Dist. Atty. Gen., Sterling P. Gray, Asst. Dist. Atty. Gen., Nashville, for appellee.
   OPINION

BYERS, Judge.

The Appellant appeals from the summary dismissal of a Petition for Writ of Mandamus.

The Appellant is incarcerated in the penitentiary serving a life sentence, on an offense unidentified in this record, and he is also serving a sentence of five (5) years on a conviction for an attempt to commit armed robbery while he was an escapee from the penitentiary. The Board of Pardons and Paroles has not established a parole eligibility date for the Appellant on the two sentences. In his petition, the Appellant seeks an order from this Court directing the Board to establish a parole date. The primary insistence made by the Appellant in this proceeding is that an order entered by the trial court of Davidson County in a previous proceeding is binding on the Board of Pardons and Paroles and that we should order the Board of Pardons and Paroles to comply with the order.

Prior to filing the petition in this case, the Appellant filed a Petition for Habeas Corpus questioning the manner in which the life sentence and sentence for attempted robbery should be served. On April 28, 1976, an agreed order was entered in the trial court wherein it was ordered by that court that the Appellant would not be required to serve any more time on the life sentence and that he would be eligible for parole on the five (5) year sentence after serving the minimum time required by law for the sentence. The Board of Pardons and Paroles apparently did not follow this determination, thus the initiation by the Appellant of the petition in this case. Upon reviewing the present petition, the trial court, in an order entered October 1, 1976, ordered the five (5) year sentence to run consecutive to the life sentence. The trial judge, by this order, appears to have abrogated the agreed order of April 28, 1976.

The sum and substance of the Appellant’s complaint herein is to have this Court order the Board of Pardons and Paroles to follow the order of the trial court entered on April 28, 1976, wherein the trial court declared the life sentence fully served. Additionally, he asks that he be given an evidentiary hearing in the trial court on his petition.

The Appellant attempted to commit an armed robbery while he was an escapee from the penitentiary where he was serving a life sentence. T.C.A. § 41-726 requires that any sentence imposed against a person for committing a felony while he is an escapee from the penitentiary shall be served consecutively to the sentence on which he is being held when he escapes. The five (5) year sentence of the Appellant runs, therefore, consecutively to the life sentence, and this sentence shall not commence to be served until the expiration of the life sentence.

A sentence for life does not expire but continues so long as a person serving such sentence lives, or, until a pardon has been granted. Doyle v. Hampton, 207 Tenn. 399, 340 S.W.2d 891 (1960).

A commutation would also terminate a life sentence. The granting of parole does not terminate a sentence but merely suspends the execution of the penalty thereon. Doyle v. Hampton, supra. Therefore, so long as the life sentence remains in effect, service of the five (5) year sentence shall not commence and eligibility for parole does not exist.

The courts have no authority or jurisdiction to terminate a valid sentence of confinement. The authority to grant pardons and commutations of sentences rests solely with the executive authority of this State. Article III, Section 6 of the Constitution of Tennessee, T.C.A. § 40-3501—§ 40-3508. The granting of parole is vested exclusively in the Board of Pardons and Paroles. T.C.A. § 40-3613. Therefore, the agreed order entered in the trial court on April 28, 1976, was void and had no binding effect on the Board of Pardons and Paroles.

The trial court order of October 1st, 1976, recognized the imperative provisions of T.C.A. § 41-726 and abrogated the order of April 28, 1976.

The petitioner is not entitled to the relief sought. The Board of Pardons and Paroles is not bound by or required to follow the agreed order of April 28, 1976, which was entered in the trial court.

The papers and pleadings filed in this cause show the petitioner is not entitled to any relief as a matter of fact or law and no evidentiary hearing was required.

The judgment of the trial court in dismissing the petition for a Writ of Mandamus is affirmed.

O’BRIEN and DUNCAN, JJ., concur.


text:
    Gerald W. PATTY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    July 14, 1977.

      William E. Farmer, John William Martin, Lebanon, for appellant.
    Brooks McLemore, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Baxter Key, Dist. Atty. Gen., Gainsboro, John C. Knowles, Asst. Dist. Atty. Gen., Sparta, R.David Allen, Asst. Dist. Atty. Gen., Lebanon, for appellee.
   OPINION

BYERS, Judge.

The Appellant was convicted of kidnapping and sentenced to serve ten (10) years and he was convicted, also, of bank robbery and sentenced to serve twenty (20) years and one (1) day. The sentences were ordered to be served concurrently.

The evidence shows that on December 13, 1973, the Appellant entered the West Wilson Branch of the Lebanon Bank located at Mt. Juliet and by the use of a sawed-off shot gun, took from the employees there approximately twenty one thousand dollars ($21,000.00). As he left the bank, he took with him, as a hostage, Sherri McCulloch, one of the employees. The Appellant did not contest the fact that he robbed the bank but rested his defense upon insanity at the time of the commission of the offense.

In assignments of error one (1) and two (2), Appellant asserts that the trial court erred in not granting his motion to quash the indictments because both indictments were insufficient on their face and did not give proper and legal notice to Appellant concerning the charges of kidnapping and bank robbery which were brought against him. We disagree.

Appellant cites State v. Witherspoon, 115 Tenn. 138, 90 S.W. 852 (1906), where the Supreme Court held that an indictment must be sufficiently definite in its aver-ments, (1) to give a defendant notice of the particular crime with which he is charged and the nature of the elements thereof, (2) to the information of the court, that it may see a definite offense on record to apply the judgment and the punishment prescribed by law, and (3) must so describe and identify the offense that the judgment in the case could be relied on in another prosecution for the same offense upon a plea of former acquittal or jeopardy. See also State v. Overton, 193 Tenn. 171, 245 S.W.2d 188 (1951); Wheeler v. State, 220 Tenn. 155, 415 S.W.2d 121 (1967). Contrary to Appellant’s contentions, the indictments in the present case meet these tests.

T.C.A. § 39-2601 defines kidnapping as follows:

Any person who forcibly or unlawfully confines, inveigles, or entices away another, with the intent to cause him to be secretly confined, or imprisoned against his will, or to be sent out of the state against his will, must, on conviction, be imprisoned in the penitentiary for not less than two (2) years nor more than ten (10) years, (emphasis added).

The indictment for kidnapping charged that on December 13, 1974, the defendant did,

Unlawfully, feloniously, and forcibly imprisoned Sherri McCullouch against her will and contrary to the statute and against the peace and dignity of the State of Tennessee, (emphasis added).

An indictment for a statutory offense need only describe the crime in the words of the statute or through words substituted which are equivalent to the words used in the statute or of more extensive signification. Riddle v. State, 50 Tenn. 401 (1871); State v. Smith, 119 Tenn. 521, 105 S.W. 68 (1907). The meaning of the statute was effectively conveyed to Appellant by the words used in the indictment.

The indictment tells Appellant when the alleged crime occurred. It tells against whom it was perpetrated. The language of the indictment that Appellant “[Unlawfully, feloniously, and forcibly imprisoned Sherri McCullouch against her will”, is sufficient to apprise the Appellant that kidnapping is the offense he is called upon to answer. This indictment could be relied upon in another prosecution for the same offense upon a plea of former acquittal or jeopardy. See Cowan v. State, 208 Tenn. 512, 347 S.W.2d 37 (1961).

The same rationale applies to the indictment charging Appellant with bank robbery.

T.C.A. § 39-3902 defines bank robbery as follows:

It shall be unlawful for any person to feloniously enter any banking house or place where moneys are kept on deposit and securities of any value deposited for safekeeping and by violence or putting in fear any person therein charged with the custody, care, or keeping of such money or securities of any value, to feloniously take and remove or attempt to take and remove from such banking house any such moneys or securities of any value; and any person so doing shall be deemed guilty of the crime of bank robbery.

The indictment for bank robbery charges that on December 13, 1974, the defendant did,

“Unlawfully and feloniously enter West Wilson Branch of Lebanon Bank where money was on deposit for safekeeping and did by violence therein feloniously, take and steal valuable personal property contrary to the statue (sic) and against the peace and dignity of the State of Tennessee.”

The indictment sufficiently apprises the Appellant that he is charged with robbing the West Wilson Branch of the Lebanon Bank on December 13, 1974. This indictment could clearly be relied upon in another prosecution for the same offense upon a plea of former acquittal or jeopardy.

Both indictments are also sufficient for the information of the trial court so that it could see a definite offense on record to apply the judgment and the punishment prescribed by law. No problems appear on the record to have been encountered by the trial judge in this regard.

Assignments of error one (1) and two (2) are overruled.

The Appellant says the trial court erred in not allowing him to introduce the recorded testimony which was given in a hearing on August 20, 1975, before another judge.

The hearing referred to was conducted to determine if the Appellant required hospitalization in Central State Hospital. We find nothing in the bill of exceptions which shows that the Appellant attempted to offer the transcript of the August 20, 1975, hearing into evidence at the convicting trial which was conducted December 16 and 17 of 1975. In the technical record is a motion filed by the Appellant asking that he be allowed to present the transcript. This was filed December 5,1975. There is nothing to indicate that the trial judge either granted or denied the relief sought in the petition.

The trial court did not rule on the motion filed by the Appellant to introduce the transcript of the testimony given at the previous hearing. The mere presence of the motion in the record is of no legal efficacy, in the absence of a minute entry showing the judge’s ruling on such motion. Jones v. State, 197 Tenn. 667, 277 S.W.2d 371 (1955); Shye v. State, 506 S.W.2d 169 (Tenn.Cr.App.1973).

The Appellant did not attempt to introduce the transcript at the trial. An Appellant cannot complain or appeal about matters not raised in the trial court. Manning v. State, 500 S.W.2d 913 (Tenn.1973).

In conjunction with this claim the Appellant further says when the trial court did not allow him to use the transcript of the former hearing, the court erred in not granting a continuance to the next term of court to allow him to take the deposition of the psychiatrist at the Federal Hospital in Missouri. We are confronted again with a record that is totally void of anything to show that such relief was sought in the trial court. Counsel for Appellant cites pages in the transcript and bill of exceptions in support of the assignment. However, those portions of the record deal with a requested continuance on totally different grounds.

The Appellant made an additional assignment of error on the basis that a continuance should have been granted because the psychiatrist whom he subpoenaed was to be in another court on a day subsequent to the day the trial commenced.

The motion was made and ruled on by the trial court. The Appellant says the failure to grant a continuance forced him to use the witness out of order which was prejudicial to him. In the argument on the motion at the commencement of trial, the judge advised counsel that the witness, being under subpoena and present, would be required to remain until the completion of the trial. The Appellant could have used the witness at any time he chose. The use of the witness in the order presented was the choice of the Appellant.

The granting or denial of a continuance is within the discretion of the trial judge. Certainly there was no reason to grant a continuance on this basis.

Assignment of error is made on the trial judge’s refusal to allow the introduction of the records from the Federal Hospital in Missouri and from Central State Hospital at Nashville concerning previous hospitalization of the Appellant.

The state objected to these records because they contained diagnoses made by persons not present to testify. The trial judge sustained the objections on this basis.

Hospital records are admissible under the Business Records Act, T.C.A. 24-714, if all of the prerequisites of the Act are complied with. Neas v. Snapp, 221 Tenn. 325, 426 S.W.2d 498 (1968); New Jersey Zinc Co. v. Cole, 532 S.W.2d 246 (Tenn.1975); Graham v. State, 547 S.W.2d 531 (Tenn.1977). In Graham, our Supreme Court said:

“The Business Records Act is itself an exception to the hearsay evidence rule. It is designed to avoid the unnecessary expense, inconvenience and sometimes impossibility of calling witnesses, particularly in — but not limited to — those instances wherein the matter sought to be established is routine or uncontroverted. In the case of hospital records, without the act, it could conceivably take numerous witnesses — doctors, technicians, nurses and attendants who joined forces to make a complete and composite history of a patient’s hospital treatment.”

In Graham the court held that hospital records were not subject to blanket objection on the basis of hearsay. The records are admissible under the Business Records Act if offered in accordance with the rule in Neas and Graham. In this case, the Appellant offered the records from each hospital through Dr. Cyrus Higgs the Assistant Superintendent of Central State Hospital. Dr. Higgs testified that he had custody and responsibility for the records of Central State Hospital.

We are of the opinion that the trial court was correct in excluding the records from the Federal Hospital in Missouri. Dr. Higgs stated only that these records were forwarded to Central State Hospital by letter from the Federal Hospital. Dr. Higgs was not able to relate the method of preparation or whether these were made in the regular course of business. Dr. Higgs was not the custodian of the Missouri records, nor did he qualify as another qualified witness who could properly authenticate the records for admission under the Business Records Act.

We are of the opinion, however, that the trial court was in error in rejecting the testimony of Dr. Higgs concerning the records from Central State Hospital at Nashville. Dr. Higgs testified that the Appellant was a patient at Central State Hospital on more than one occasion. He testified that records of previous hospitalization, treatment and diagnoses were important in reaching a diagnosis of the present condition of the Appellant. He further testified that as Assistant Superintendent he was responsible for the records and had them in his custody. Dr. Higgs was either the “custodian or other qualified witness” whose testimony made the records prima facie admissible. The state insists that Dr. Higgs could not introduce these records because they were made prior to his employment at the hospital. However, we are of the opinion that to apply this theory would be unduly restrictive and would thwart the purpose of the act unnecessarily without any compelling reason to do so. Records of hospitals, courts and businesses of all descriptions remain long after those who have prepared them or who have custody of them are gone. We are of the opinion that if the witness offered to validate the records is the custodian of the records or an otherwise qualified person, and he can testify with a reasonable degree of certainty that the records are a part of the records of the business and they are maintained in the normal course of the business and that they reasonably appear to have been made in the normal course of business, then such records would be admissible, even though the records were prepared prior to his arrival at the business. This opinion should not be construed, however, as allowing the use of a successor custodian or other witness to introduce business records where a more qualified witness is available for that purpose.

As in Graham, we hold that the records of the Appellant’s hospitalization at Central State Hospital were not subject to a blanket disqualification on the basis that they were hearsay. Any part of the records which the trial judge might find to be precluded by other rules of evidence would of course be excluded by those rules. See Graham, supra. However, a diagnostic finding is not excludable merely because it is the opinion of another treating physician, if the physician or expert witness who is testifying as to a patient’s present condition relied upon the diagnosis to reach a current conclusion.

We hold that the Appellant is entitled to a new trial because the trial court excluded the records of Central State Hospital which showed Appellant’s previous hospitalization at that institution.

The Appellant sought to show by an assistant United States attorney that an order had been entered in the Federal District Court dismissing the federal prosecution against the Appellant on a charge of bank robbery arising out of this occurrence because of a finding of incompetency to stand trial.

This assignment is without merit. Apparently a motion was made by the government in the federal prosecution to dismiss the federal charges on the basis of incompetency to stand trial. The district judge granted the motion and entered an order accordingly. This decision by another court had no bearing on the issue of the Appellant’s mental condition at the time of the commission of the crime. See Covey v. State, 504 S.W.2d 387 (Tenn.Cr.App.1973).

The granting of a change of venue sought by the Appellant lay within the discretion of the trial judge. Swain v. State, 219 Tenn. 145, 407 S.W.2d 452 (1966). Unless there is an abuse of this discretion his determination to deny such motion will not be disturbed on appeal. Where, as here, no evidence at all is introduced to support this motion the denial for a motion for a change of venue is not error. Norris v. State, 127 Tenn. 437, 155 S.W. 165 (1913).

The Appellant complains that the assistant district attorney general testified without being sworn as a witness.

This assignment is based on a question asked on cross-examination. When the Appellant’s attorney objected to a question by the assistant attorney general on the basis he was giving testimony, the assistant attorney general responded that he could testify during cross-examination of a witness.

Our examination of the record convinces us that in the context of the testimony the question asked was proper. It was a leading question based on testimony given by the witness. Such a question is permissible in cross-examination. We overrule this assignment but point out that cross-examination does not permit the examiner to testify or introduce evidence. Brown v. State, 498 S.W.2d 920 (Tenn.Cr.App.1973).

The Appellant complains that the trial court allowed the state to read portions of testimony given by Dr. Higgs in a previous hearing but did not allow the Appellant to introduce the entire previous testimony of the doctor before the jury.

The record reveals that the trial judge ruled that the Appellant's attorney could read the entire statement to the jury. Whether this was done we are unable to say from the record. At any rate, the Appellant’s attorney had opportunity to do this if he wished.

The Appellant complains that he should have been allowed to read his military citations into the record. The trial court allowed testimony from the Appellant concerning his military record. This included testimony concerning citations earned in combat. The recitations of accomplishments contained in the citations were not material or relevant to whether the Appellant committed the crimes for which he was being tried, nor were they relevant on the issue of insanity.

The Appellant complains that the trial court erred by instructing the jury on insanity under the M’Naghten rule which was the applicable law at the time of this trial. Graham is not applicable to the trial of this case because no appropriate objection or special requests were made during the trial nor was this raised in the motion for a new trial. Graham is not applicable to completed trials unless appropriate special requests were submitted during the trial or the issue was fairly raised therein. Neither of these requirements were met. However, on retrial of this case, in the event the defense is based upon mental incapacity at the time the offense was committed, the Graham case will be applicable.

We note that the judgments entered prohibited the Appellant, upon conviction, from voting or testifying as a witness in any judicial proceeding unless testifying on his own behalf. These disqualifications are not a part of our present law and should not be a part of the judgments in the event of a conviction on a retrial of this case. T.C.A. § 40-2712.

We further note that the exhibits are made a part of the technical record rather than a part of the bill of exceptions. To be considered on appeal, they must be made a part of the bill of exceptions.

The judgment of the trial court is reversed and a new trial is granted.

O’BRIEN and DUNCAN, JJ., concur.