author: JAMES RUDDY, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Joseph Robert MAYFIELD, Defendant-Appellant.
    No. 38313.
    Missouri Court of Appeals, St. Louis District, Special Division.
    Feb. 14, 1978.

      Fordyce & Mayne, Leo V. Garvin, Jr., Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   JAMES RUDDY, Special Judge.

Defendant was found guilty by a jury of rape § 559.260 RSMo 1969 and sentenced to fifteen years with the Department of Corrections. He appeals.

The following facts most favorable to the verdict were presented at trial. The victim, H. G., age 27, was asleep in her bed with her eighteen month old child early in the morning of August 7, 1975. She was married but she and her husband were separated. Her four other children were asleep in another room. Between four and four-thirty a.m. defendant entered her bedroom by standing on a trash can and crawling through an open window in the children’s bedroom, and then entering the room. She awakened and found a stranger standing over her. She screamed and he said “holler again and I’ll kill you.” He ordered her to get out of bed and told her he wanted her money and food stamps. She told him she had nothing, and he began looking through her closet, drawers, and in her purse. When he did not find anything, he stated “This is rape.” At that time she noticed that the handkerchief he was holding in his hand had a steak knife wrapped inside. He told her to lie down on the bed. She tried to change his mind by telling him there were lots of other women to be with and that she was seeing a doctor and intercourse would cause a lot of pain and bleeding. He proceeded to have intercourse with her, with the knife laying on the bed beside the baby who was by this time awake. When he was finished, he got up, stating, “I am gone,” and departed through the kitchen door. Mrs. G. ran to her mother’s apartment which was across the hall, and called the police. Two officers arrived and Mrs. G. described her assailant to them, and she was taken to Homer Phillips Hospital.

Either one or two days after the rape, Mrs. G. went to the police station where the officers prepared a composite portrait of her attacker. On August 19 she was asked to view a lineup. She selected defendant from the lineup as the man who raped her. However, defendant was not the original suspect but was in custody on a traffic charge when he was voluntarily placed in the lineup. Mrs. G. also stated she could identify defendant’s voice if she heard it. After she identified defendant from the lineup, some detectives, Mrs. G., and defendant were in a room together. One of the detectives started to walk out. Mrs. G. said, “Don’t leave me in here.” Defendant said “That’s all right, I have did what I wanted to now.” Mrs. G. recognized the voice as that of the man who raped her. The officer who was conducting the lineup asked Mrs. G. if she was positive of the identification. The defendant was then placed under arrest, and was advised of his rights. Defendant indicated that he understood his rights.

Appellant’s defense at trial was alibi. He presented three witnesses: his mother, girlfriend, and his girlfriend’s sister. His girlfriend, Annie, and her sister, Rosie, testified that defendant was with them at a party on the evening of the rape. His girlfriend further testified that she and defendant were asleep together in his bed at the time of the rape. Annie’s sister Rosie stated that defendant was in his apartment at 7:15 a. m. on August 7 and drove her to work that morning.

The jury returned the verdict on May 14, 1976. The court granted the defense additional time to file a motion for new trial. On June 14 leave was granted for attorney Leo V. Garvin to enter his appearance as attorney for defendant in this case (Cause No. 75-2286). However, the trial judge granted this leave on the condition that Mr. Garvin also enter his appearance in another matter concerning defendant (Cause No. 75-2287). That case consisted of three counts: (1) robbery first degree; (2) robbery first degree by means of a deadly and dangerous weapon; and (3) rape. All of these crimes were committed against one R. W. on August 1, 1975, less than one week before the crime at issue in this appeal. On June 21, 1976, the court granted Ben J. Weinberger, who had represented defendant in the trial of the instant case, leave to withdraw.

On June 25, 1976, Mr. Garvin filed a motion for continuance which alleged, inter alia, that defendant was unable to assist in the further defense of the charges against him due to incompetency. The motion further stated that the recently retained attorney was advised by the court that there was not enough time to obtain a transcript of the proceedings to assist in the preparation of a new trial, but that no further extension would be granted. Furthermore, the motion stated that the defense attorneys had obtained an order in connection with the companion case, Cause No. 75-2887 (the robbery and rape charges), permitting defendant to be examined by a psychiatrist, Dr. Edwin Wolf gram of St. Louis. Following this examination, the motion stated that it had been determined that defendant is mentally ill, unable to assist in his defense, and that this condition existed for at least a year prior to the examination. The motion for continuance concluded in the following manner:

“WHEREFORE, defendant prays, by and through his said attorneys, the court issue its order continuing further proceedings herein, pending a hearing on the competency of the defendant to stand trial and otherwise assist in the preparation of his defense.”

On June 25, 1976, allocution, judgment, and sentencing took place. Mr. Garvin stated then that the motion for new trial, prepared by Mr. Weinberger, was to be taken up over his objection. He explained that since he did not represent defendant at trial, and did not have enough time to obtain a transcript after trial, and defendant was unable to assist him because he was incompetent, he had no information from which to prepare a motion for new trial. In order to preserve the incompetency issue for appeal (which was not alleged in the motion for new trial) he filed this motion for continuance.

The trial judge denied the motion for continuance. He stated that defendant had been given a psychiatric examination in connection with this cause while confined at the State Mental Hospital in Fulton, Missouri during December, 1975 and January, 1976. Mr. Garvin stated that Mr. Weinber-ger’s file contained none of this information and that he knew nothing of this prior psychiatric exam. The court imposed a sentence of fifteen years pursuant to the jury verdict. The judge ordered that the companion case, Cause No. 75-2287 concerning the robbery and rape of R. W. be returned to the criminal assignment division for further proceedings.

Defendant presents four points on appeal. We first deal with the challenge relating to defendant’s competency.

Defendant claims that it was plain error for the trial court to deny defendant’s motion for a continuance, pending a hearing on defendant’s competency, when there was, what he asserts to be, sufficient evidence for the judge to suspect that defendant was incompetent to stand trial,

There are two occasions when a hearing on competency is required: (1) when the psychiatric report is contested, as stated in Section 552.020(6) RSMo 1969; See, e. g., State v. Vansandts, 540 S.W.2d 192, 201[1] (Mo.App.1976); and (2) where the circumstances at a criminal trial create a “bona fide doubt” of an accused’s fitness to proceed. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Harkins v. State, 494 S.W.2d 7, 13[2] (Mo.1973). See generally State v. Vansandts, 540 S.W.2d 192, 201[1, 2] (Mo.App.1976). Here the first psychiatric report was not contested so the judge was not required to conduct a hearing under the first theory. Collins v. State, 479 S.W.2d 470, 471[2] (Mo.1972). Furthermore, the record does not disclose any other circumstances which should have caused the trial judge to harbor a “bona fide doubt” of defendant’s competency. The defendant did not behave erratically before the court, nor did his counsel during trial express doubts as to his client’s competency. Miller v. State, 498 S.W.2d 79, 85 (Mo.App.1973). “The test of competency is whether the accused has sufficient ability to consult with his lawyer with a reasonable degree of rational understanding and whether he had a rational as well as factual understanding of the proceedings against him.” Jones v. State, 505 S.W.2d 96, 98[3] (Mo.App.1974); Boyer v. State, 527 S.W.2d 432, 436 (Mo.App.1975). The trial court had every reason to believe defendant met this standard.

Defendant’s theory is that the trial judge should have suspected that the defendant was incompetent at three points in time during the proceeding. The first point would be sometime after the medical report from Fulton State Hospital was received on February 2, 1976. The medical report, signed by Dr. Rohidas Patil, contained the following information. “Mr. Mayfield knows why he is here and realizes the seriousness of the charges against him. Mr. Mayfield states that he is innocent and said he was not involved in the alleged offense. Mr. Mayfield can discuss his legal status in a rational manner and it is considered that he has the capacity to confer with his counsel in preparing and implementing his own defense. His knowledge of courtroom proceedings and functions appear [sic] to be good.” The report further stated:

“There was no evidence of any bizarre behavior. It appears that there was no indication that he was suffering from a psychotic mental disease or defect at the time of the alleged offense.
VIII. FINDINGS
1) That the accused has a mental disease or a defect within the meaning of Section 552.010. There is a schizophrenia, a chronic undifferentiated type, in remission.
2) That the accused has the capacity to understand the proceedings against him and can assist in his own defense.
3) That the accused did know and appreciate the nature, quality and wrongfulness of his alleged conduct and was capable of conforming his conduct to the requirements of the law.
4) That the accused does not require hospitalization pending further proceedings.
IX. RECOMMENDATION
It is recommended that Mr. Mayfield be returned to court for disposition of the charges pending against him. Continue Thorzine Concentrate, 200 mg. A.M. and 200 mg. at h. s.
(Signed) Rohidas Patil, M.D.
Resident in Psychiatry Fulton State Hospital.”

Defendant challenges the validity of the report. He claims that because 40% of it is devoted to a “recitation of the charges against defendant and excerpts from police reports of the incidents from which the charges against the defendant arose”, and because it recommended medication even though stated that defendant did not require hospitalization, that the judge should have been wary of its other findings. To this we cannot agree. Defendant claims that it was plain error for the trial court to proceed with the trial of defendant, and deny defendant’s motion for a continuance, in light of the alleged defects in this report. We have read the entire report and feel that the trial judge was amply justified in relying on its findings. It was a complete and thorough report, and furthermore, its findings were not contested at trial. The judge did not err in failing to grant a hearing. Barbarick v. State, 496 S.W.2d 843, 845[2] (Mo.1973).

The next juncture in the trial proceeding to which defendant points occurred after the jury was selected. The following discussion took place outside the hearing of the jury:

“PROSECUTOR: Your Honor, I was going to make a request prior to the swearing of the jury that the Court interrogate the defendant, Ronald Mayfield, in regard to his understanding and the nature of the proceedings that are taking place in this courtroom; based upon a conversation that he had with his attorney, Mr. Weinberger, in his presence last night, I concluded that he did not understand whatsoever as to with regard to what is going on.
“THE COURT: You want to make a comment on that request?
“MR. WEINBERGER: I concur with the State’s attorney and will further advise the Court that I believe that the defendant is a bit confused as to the nature of the proceedings, although he seems to be somewhat oriented, he doesn’t seem to be fully oriented as to what is taking place here, and I believe that he is sort of confused.
“THE COURT: Bring the defendant out. Is your witness in the witness room?
“PROSECUTOR: I believe she should be upstairs.
“MR. WEINBERGER: It doesn’t make any difference if some of my witnesses are present at this point?
“THE COURT: Yes, it does. They will have to go outside. Sir, step up. Mr. Mayfield, step up here. State your name.
“THE DEFENDANT: Joseph May-field.
“THE COURT: Okay. How old are you, sir?
“THE DEFENDANT: Twenty-seven.
“THE COURT: How far did you go in school?
“THE DEFENDANT: Freshman in college.
“THE COURT: What college was that, Mr. Mayfield?
“THE DEFENDANT: UMSL was the last one.
“THE COURT: You did attend UMSL?
“THE DEFENDANT: Yes.
“THE COURT: Do you know the man on your right?
“THE DEFENDANT: Yes, I do.
“THE COURT: What is his name?
“THE DEFENDANT: Ben J. Weinber-ger.
“THE COURT: And who is he?
“THE DEFENDANT: My lawyer.
“THE COURT: Okay. Now, what are we doing here today? You are here for what to happen? What did you come over here for?
“THE DEFENDANT: I’m not really sure today,
“THE COURT: Did your lawyer tell you you were to stand trial today?
“THE DEFENDANT: Yes.
“THE COURT: That you are on trial?
“DEFENDANT: Yes.
“THE COURT: Do you understand what happened yesterday, that we selected a jury to try you?
“THE DEFENDANT: Yes, I do.
“THE COURT: And you understand that the case is suppose to start in a few minutes, this morning. Those people that just left the room are your witnesses, are they not?
“THE DEFENDANT: Yes, they were.
“THE COURT: Okay. Your request will be denied.
“PROSECUTOR: Well, Your Honor—
“THE COURT: Have a seat.
“PROSECUTOR: —I will say at this time — request' the Court inquire as to whether or not Mr. Mayfield is receiving medication that was recommended by the doctors at Fulton, 400 milligrams of Thorazine a day.
“THE COURT: Mr. Mayfield, are you taking your medicine that the doctor gave you?
“THE DEFENDANT: Yes, I am.
“THE COURT: Just have a seat.
“MR. WEINBERGER: Let me ask you a question, Mr. Mayfield: are you under medication now?
“THE DEFENDANT: Yes, I am.
“MR. WEINBERGER: Do you fully understand what we are about to do here this morning?
“THE DEFENDANT: Yes, I do.
“MR. WEINBERGER: Do you know why you’re here now?
“THE DEFENDANT: Yes.
“MR. WEINBERGER: Do you know where you are at now?
“THE DEFENDANT: Yes, I do.
“MR. WEINBERGER: Where are you?
“THE DEFENDANT: In the courtroom 20.
“THE COURT: That’s right. You’re in courtroom 20. I am Judge Tillman. And we’re going to have your trial. I am going to see that you get a fair trial, you understand that?
“THE DEFENDANT: Yes, sir.”

The defendant claims that “the trial court satisfied himself of defendant’s competence by merely interrogating defendant through a line of leading questions.” He claims it was plain error for the trial court to proceed through trial and later deny defendant’s motion for a continuance when defendant had stated he “really wasn’t sure today” why he was in the courtroom. We find that the trial court did not err. From the entire series of questions and answers, and his personal observations of defendant’s demeanor, the trial court could reasonably believe that defendant was competent to assist in his own defense. Boyer v. State, 527 S.W.2d 432, 437[5] (Mo.App.1975).

The third point during the trial that defendant claims should have signalled the trial court that defendant was incompetent was on the day of sentencing. The trial had ended, and on the day of sentencing defendant moved for a continuance “pending a hearing on the competency of the defendant to stand trial and otherwise assist in the preparation of his own defense.” Within the motion for continuance defendant’s counsel asserted that they had obtained another psychiatric exam of defendant in connection with the companion case, and that the new report concluded that “defendant is mentally ill and unable to assist in this defense, and that this condition has existed for at least the year immediately preceding said examination.”

As noted in the recitation of facts, before the trial judge denied the motion for continuance, he pointed out to defense counsel that prior to the trial, defendant had undergone a psychiatric examination in Fulton. Defendant’s counsel professed ignorance of this prior exam, as no record of it was in the file that he received from the attorney who handled the trial of the case.

We conclude that the trial court did not err in denying the motion for continuance of the sentencing pending a competency hearing. The trial court has wide discretion in deciding when to grant a continuance and we will not interfere in the absence of abuse of discretion. State v. Carroll, 543 S.W.2d 48, 49[1, 2] (Mo.App.1976). The trial court did not abuse its discretion in denying the defense counsel’s motion. It was reasonable for him to believe that defendant was competent to stand trial, based on the psychiatric report from Fulton, his personal interrogation of defendant after the jury was selected, and his personal observation of defendant throughout the trial. Defendant’s motion for new trial contained an unverified allegation that there had been another psychiatric exam of defendant. The defendant did not accompany his written motion with a copy of the report, although the trial court asked him if he had “anything additional to the written motion” to present. The court was not required to accept as self-proving the unverified allegation that there was new evidence of defendant’s incompetency. See State v. Purvis, 525 S.W.2d 590, 593[2, 3] (Mo.App.1975).

Defendant has filed with this court a supplemental transcript which contains the text of the February 3, 1977 hearing of the companion robbery and rape case (in which Judge Satz found defendant not guilty due to mental disease), and also contains two psychiatric reports, one dated July 9, 1976, and the other dated December 7, 1976. None of this evidence was before the trial court, either during trial which was from May 12-14, 1976, or in the motion for new trial, filed June 9, 1976, or on the day of sentencing, June 25, 1976, when defendant moved for a continuance. We are limited solely to the record made in the trial court, and do not consider the other evidence. State v. Andrade, 534 S.W.2d 595, 597[1] (Mo.App.1976).

Defendant raises three other points. All of these are portions of the trial alleged to be plain error. Defendant is forced to rely on plain error because no objections were made at trial to the alleged misconduct, nor were any of the three points raised in the motion for new trial. Rule 27.20(c) allows the court to consider points not properly preserved for review when the court deems that “plain errors resulting in manifest injustice or miscarriage of justice” have occurred.

The first of these three alleged errors concerns the assistant circuit attorney’s alleged comment on the defendant’s failure to testify. During closing argument, the defendant’s counsel argued that the victim’s identification of defendant was suspect because she had failed to mention that her attacker had worn “thick, heavy glasses”.

“PROSECUTOR: Your Honor, please, I will object to that. There is no testimony or evidence that he wears heavy glasses.
“THE COURT: The jury is instructed to disregard the last comment.
“MR. WEINBERGER: Mr. Mayfield, face the jury.
“PROSECUTOR: Your Honor, please, I will object to that. Counsel had every opportunity—
“THE COURT: Sustained.
“MR. WEINBERGER: You gentlemen can view this defendant and see for yourselves that — •
“PROSECUTOR: Your Honor, please, I will object to this particular line of questioning. Counsel had every opportunity—
“MR. WEINBERGER: Is Your Honor going to deny me my argument before this court, before the jury?
“THE COURT: I sustained that objection, counsel.”

Defendant contends that the prosecutor’s completed sentence would have been, “Counsel had every opportunity to place defendant on the stand.” Hence, he contends she created reversible error because she made a comment on the failure of the accused to testify.

The cases are clear that only direct and certain, State v. Rothaus, 530 S.W.2d 235, 237[1] (Mo. banc 1975); State v. Hutchinson, 458 S.W.2d 553, 555[3] (Mo. banc 1970), nonambiguous and unequivocal, State v. Frankoviglia, 514 S.W.2d 536, 541[5] (Mo.1974), comments on the accused’s failure to testify will be considered a violation of defendant’s constitutional and statutory privilege against self-incrimination. Only by the most remote stretch of the imagination could one infer that the comment here at issue was directed at the accused’s failure to testify. The point is without merit.

The next point defendant raises is that the trial court erred in permitting the prosecutor to comment on the failure of the defendant to call a witness equally available to both parties. This point is not preserved for review because there was no objection at trial. State v. Harms, 507 S.W.2d 29, 32[8] (Mo.App.1974).

We will assume that defendant was raising the point for consideration as “plain error” but carelessly omitted the word “plain” from his point relied on. The alleged comment by the prosecutor on defendant’s failure to call a witness equally available to both parties took place in the following context:

. he opened the door. Now, that man had to have his fingerprints—
“PROSECUTOR: Your Honor, I will object.
“MR. WEINBERGER: Somewhere and somehow — this is argument.
“PROSECUTOR: There has been no testimony with regard to fingerprints in this case.
“MR. WEINBERGER: I have a right to argue my case.
“THE COURT: Overruled. Go ahead.
“MR. WEINBERGER: There has been no fingerprints introduced in this case, none.
“PROSECUTOR: Your Honor, please, I will once again — counsel could have had the Evidence Technician people in.
He did not so desire.
“THE COURT: Overruled.
“MR. WEINBERGER: I want to preserve my time, and I will ask the Court to admonish counsel from interrupting me.
“THE COURT: I will refuse to do that. Go ahead.”

Defendant claims that the prosecutor’s statement, “counsel could have had the Evidence Technician people in” is an impermissible comment on defendant’s failure to call them as witnesses. We disagree. Rather, the prosecutor was objecting to defendant’s argument of matters not in evidence, and the trial court should have sustained her objection. In overruling it, the court committed error in defendant’s favor. Defendant cannot complain about error committed in his favor. Rule 26.06, State v. Martin, 530 S.W.2d 447, 451[14] (Mo.App.1975); State v. Foster, 490 S.W.2d 662, 663[2] (Mo.App.1973). The point is without merit.

The final point defendant raises is the “abusive, unrestrained language” in the prosecutor’s closing arguments which resulted in “an inflammatory and prejudicial atmosphere and foreclosed the possibility of a fair and impartial trial.” The prosecutor referred to defendant as “some type of monster” and as a “base animal” and told the jury that, “the only way you are going to protect all the H. G.’s in this world is to place that man ... in the penitentiary”

Again, the defendant relies on “plain error”, Rule 27.20(c), since no objection was made below. In the first place, if the remarks resulted in such an inflammatory and prejudicial error, it seems certain that an objection would have been made at trial.

A statement in closing argument will rarely affect the substantial rights of a defendant so as to result in plain error. State v. Brown, 528 S.W.2d 503, 505[2] (Mo.App.1975). And even if the point is preserved, it has been held to be proper for the prosecutor to comment upon the prevalence of crime in the community and he or she may argue for severe punishment as a deterrent to others so long as he or she stays within the record and reasonable inferences to be drawn therefrom. State v. Hill, 539 S.W.2d 521, 529[22] (Mo.App.1976).

Although a prosecutor should not apply unbecoming names to a defendant, State v. Burnett, 429 S.W.2d 239, 246[10] (Mo.1968) not every instance of improper argument requires a mistrial, State v. Raspberry, 452 S.W.2d 169, 173[7] (Mo.1970), or a new trial. Courts have held that such name-calling, while ill advised, is not prejudicial, especially where there is evidence to support such a characterization. Thus, calling a defendant such names as “young punk”, “lying thief”, “desperado”, “hoodlum”, “drunken killer”, and “pimp” has been reviewed by our courts and not resulted in reversal. See State v. Poole, 556 S.W.2d 493, 495 (Mo.App.1977). We have read the text of the closing argument and do not feel that the appellations given by the prosecutor to the defendant in context of the entire argument were “so offensive or of such gravity as to have impaired defendant’s fundamental right to a fair trial”, and thus were not plain error. Cloud v. State, 507 S.W.2d 667, 669[5] (Mo.App.1974).

The judgment is affirmed.

CLEMENS, P. J., DOWD and SMITH, JJ., and WILLIAM M. CORRIGAN, Special Judge, concur.

      . Regarding the question of when a psychiatric exam is required, the United States Supreme Court recently stated: “[E]vidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but . . even one of three factors standing alone may, in some circumstances, be sufficient. There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated. That they are difficult to evaluate is suggested by the varying opinions trained psychiatrists can entertain on the same facts.” Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975). The truth of this last statement is apparent in the record here, where a total of three psychiatrists’ reports are in variance with each other.


source: Caselaw Access Project

author: DOWD, Judge.

license: Public Domain

text:
    Carl E. THOMAS, Plaintiff-Respondent, v. MISSOURI POWER & LIGHT COMPANY, Defendant-Appellant.
    No. 38494.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Feb. 14, 1978.

      Tofle, Mack & Oxenhandler, Ollie R. Mack, Jr., Columbia, for plaintiff-respondent.
    McQuie & Deiter, Walter D. McQuie, Jr., Montgomery City, for defendant-appellant.
   DOWD, Judge.

A jury found defendant-appellant power company had acted negligently in failing to barricade an excavation it had made in a public street, and awarded plaintiff-respondent Carl Thomas $15,000 for injuries sustained when he tripped and fell into the excavation. Defendant appeals.

The facts are undisputed. On September 30, 1973 Carl Thomas of Krekel Street in Wellsville, Missouri was walking home after a visit with his mother. It was about 8:30 or 9:00 at night and completely dark. There are no sidewalks on Krekel Street and pedestrians must walk on the road. Thomas was aware that there was a ditch on the side of the road and had walked by it several times. The ditch was in front of his house, parallel to Krekel Street, about twelve feet long, three feet wide and four feet deep. It had been dug so that defendant-appellant power company could replace an old gas main. There were exposed pipes at the bottom of it. On the ends of the ditch which faced the street there were barricades with reflector tape to illuminate them when automobile lights approached. One side of the ditch faced the road and had a pile of dirt next to it. The other side faced his house. Neither of these two sides were barricaded. As Thomas was walking in the street, he suddenly tripped over an object, lost his balance, and fell headfirst into the ditch. The next morning he returned to the scene to see what he tripped over and the only thing he saw in the area was a curtain rod. He concluded he tripped over the curtain rod. Plaintiff suffered injuries to his neck, ribs, and back; and now wears a back brace.

Defendant raises three points on appeal: (1)The plaintiff failed to prove that defendant was negligent; (2) plaintiff was guilty of contributory negligence; and, (3) plaintiff failed to prove the failure to barricade was the proximate cause of plaintiff’s injuries. Defendant argues that it was therefore entitled to a directed verdict.

Defendant first contends that the plaintiff failed to prove a submissible case of negligence. Defendant argues that the trial court erred in submitting the case to a jury because plaintiff had known of the excavation prior to his falling into it.

To test the submissibility of plaintiff’s case, we review his theory of the case and consider the evidence in the light most favorable to him. Fowler v. Laclede Gas Co., 488 S.W.2d 934, 936[2] (Mo.App.1972).

Plaintiff submitted the case under M.A.I. No. 22.02, which applies to dangerous conditions near public thoroughfares. Plaintiff’s theory, as pleaded, proved, and submitted, under M.A.I. 22.02, was that 1) defendant created an excavation close to a public street, 2) such excavation was so close to a public street that persons using it in the exercise of ordinary care are exposed to a danger of falling in, 3) defendant knew or should have known of the danger, 4) defendant failed to use ordinary care to barricade it, and 5) plaintiff was injured as a direct result. No where in M.A.I. 22.02, is there a requirement that the excavation be hidden from or unknown to plaintiff. Under the facts here, we believe the plaintiff made a submissible case of negligence and the trial court did not err in submitting the case to the jury. Fowler v. Laclede Gas Co., supra at 936[3].

Defendant’s second point is that the trial court erred in submitting the case to the jury since the evidence showed plaintiff was contributorily negligent as a matter of law “since he had known of the excavation in the street for more than a week and saw it in the dark as he approached at the time he was injured, yet took no special precautions for his own safety in walking in close proximity to the dangerous condition.”

Contributory negligence is generally a jury question. Holtmeyer v. Scherer, 546 S.W.2d 29, 32[3] (Mo.App.1976). Plaintiff testified that he walked near the ditch many times before without falling into the excavation. When asked if he took any special precautions, he stated “I knew the hole was there, and I was trying to avoid it.” There were no sidewalks and so plaintiff was required to walk on the road.

A person who proceeds in an area he knows to be out of repair must exercise ordinary care to avoid dangers. Adler v. Laclede Gas Co., 414 S.W.2d 304, 307[3] (Mo.1967). But mere knowledge of a defective sidewalk is not sufficient to charge one who proceeds across the defective place with contributory negligence, unless the defect is so obviously dangerous that no prudent person would attempt to use the sidewalk. Blackburn v. Swift, 457 S.W.2d 805, 807[3] (Mo.1970). Accord, Goldman v. City of Columbia, 211 S.W.2d 541, 543[4] (Mo.App.1948). This principle applies to a defective road where a pedestrian is required to walk.

Furthermore, one can only be charged with contributory negligence for his or her voluntary acts. Kuhlmann v. Rowald, 549 S.W.2d 583, 584[1] (Mo.App.1977). Here plaintiff’s fall into the ditch was not due to the voluntary act of walking too close and falling in, but from his involuntary act of slipping on the curtain rod and stumbling as he attempted to regain his balance. We believe the issue of plaintiff’s contributory negligence was a jury question.

Defendant’s final point is that the trial court erred in submitting the case to jury because “there was no evidence offered or admitted from which the jury could reasonably and lawfully find that respondent’s injuries were legally and proximately caused by appellant’s failure to barricade the excavation since the object in the road over which respondent tripped was in no way connected with appellant or its failure to barricade the excavation and respondent’s injuries would as likely have resulted after he tripped on the object, whether the excavation had been barricaded or not.”

A defendant may be held liable for any injury which, after the occurrence, appears to have been the natural and probable consequence of his act or omission, if he should have reasonably expected some kind of injury would occur. Reckert v. Roco Petroleum Corp., 411 S.W.2d 199, 206[7] (Mo.1966); Foley v. Hudson, 432 S.W.2d 205, 207[2] (Mo.1968). The causal connection between the negligent act or omission and the injury may be inferred from facts and circumstances in the light of ordinary experience and common sense. Lewis v. Esselman, 539 S.W.2d 581, 582 (Mo.App.1976). An intervening act will not break the chain of causation if the original actors should have reasonably foreseen the intervening act in light of the attendant circumstances. Dix v. Motor Market, Inc., 540 S.W.2d 927, 933[12] (Mo.App.1976). The jury could reasonably conclude that appellant should have foreseen that some injury to plaintiff would occur from the appellant’s failure to fully barricade the excavation site. Defendant argues that even if a barricade were present, plaintiff could have been injured by falling against it or over it. However, the jury could have reasonably found that the failure of defendant to have a barricade caused the plaintiff to fall into the ditch and thus injure himself.

The judgment is affirmed.

SIMEONE, C. J., and SNYDER, J., concur.


author: BROCK, Justice. HENRY, Chief Justice,

text:
    STATE of Tennessee, Petitioner, v. Joe Eddie HUDSON, Respondent.
    Supreme Court of Tennessee.
    Feb. 21, 1978.

      Robert A. Grunow, Asst. Atty. Gen., Nashville (R. A. Ashley, Jr., Atty. Gen., of counsel), Nashville, for petitioner.
    Anthony J. Sabella, Memphis, for respondent.
   OPINION

BROCK, Justice.

We granted certiorari in this case to consider recurring problems which arise in the application of two of our criminal statutes, viz., T.C.A., § 39-4914 (using a firearm in the commission of a felony) and T.C.A., § 39-4901 (carrying a dangerous weapon with intent to go armed), to the situation presented when an accused employs a firearm to commit an assault with intent to commit murder (T.C.A., § 39-604) or an armed robbery (T.C.A., § 39-3901), or both, against a single victim on a single occasion.

The victim in this case, Mr. George Thomas Stewart, emerged from a bank in Memphis carrying a bag containing payroll cash in the amount of $5,150.67. He entered his truck and placed the money bag on the seat next to him at which time the defendant appeared at the door, pointed a pistol at him and demanded that he hand over the bag. The defendant reached into the truck and took the money bag; he then stepped back a short distance, fired a .38 caliber bullet into the victim’s leg and fled.

Defendant was separately indicted and convicted in one trial of the following offenses and received the punishments indicated:

(1) Robbery by the use of a deadly weapon, T.C.A., § 39-3901 — 20 years imprisonment;

(2) Assault with intent to commit murder in the second degree, T.C.A., § 39-604 — imprisonment for not less than one nor more than five years;

(3) Use of a firearm in committing a felony, to wit: armed robbery and assault with intent to commit murder, T.C.A., § 39-4914 — imprisonment for not less than one more more than five years;

(4) Carrying a dangerous weapon with intent to go armed, T.C.A., § 39-4901 — imprisonment for six months in the workhouse and a fine of $250.00.

The sentences for the T.C.A., §§ 39-604, 39-3901 and 39-4914 convictions were set to run consecutively, that for the T.C.A., § 39-4901 conviction concurrently.

The Court of Criminal Appeals affirmed the convictions for armed robbery and assault with intent to commit murder in the second degree but reversed and dismissed the other two convictions upon the theory, apparently, that they were merged into the convictions for robbery and assault.

The State concedes in its brief in this Court that insofar as the conviction “for use of a firearm in the commission of a felony” is based upon the defendant’s use of the pistol in committing the robbery it cannot stand because the former offense “merged” into the armed robbery offense, but insists, nevertheless, that the conviction “for use of a firearm in the commission of a felony,” is valid because the defendant also used the pistol in the commission of the offense of assault with intent to commit murder in the second degree, a separate and distinct offense into which the use of a firearm offense does not merge. The State also contends that the offense of carrying a dangerous weapon with intent to go armed does not merge into the other offenses and, thus, that the conviction for that offense may stand.

In State v. Black, Tenn., 524 S.W.2d 913 (1975), this Court reviewed many prior decisions of this Court dealing with problems of double jeopardy, merger of offenses and identity of offenses, and concluded:

“We do not find the formulation of the various ‘tests’ into catch words, such as ‘same transaction’ or ‘same evidence’ to be particularly helpful. As previously stated, each case requires close and careful analysis of the offenses involved, the statutory definitions of the crimes, the legislative intent and the particular facts and circumstances.” 524 S.W.2d at 919.

However, the Court did approve and apply the rule for distinguishing offenses announced in Blockburger v. U. S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), viz., two offenses are distinct and separate if the statutory definition of each requires proof of a fact which the other does not require.

Applying to this case the principles approved in Black, we consider the nature and effect of T.C.A., § 39-4914, which provides:

“Any person who employs any firearm of any character as a means of committing or escaping from a felony is guilty of a felony, and on conviction of first offense shall be punished by imprisonment in the penitentiary for not less than one (1) year nor more than five (5) years, and on conviction of second offense shall be punished by imprisonment in the penitentiary for not less than five (5) years nor more than ten (10) years. The trial judge may in his discretion suspend all or part of the penalty imposed by this section.
“The period of confinement imposed by this section shall be in addition to any penalty provided by law as punishment for any other felony, and shall run consecutively, and not concurrently, with any other period of confinement.”

The obvious purpose of this enactment was to provide additional punishment for one who employs a firearm as a means of committing a felony. It could have been achieved more easily if the legislature had not included the language “ . . . is guilty of a felony, . . . ” It certainly was not necessary to include that language in order to provide such additional punishment. To give a literal interpretation to the quoted phrase results, of course, in the conclusion that this statute creates and defines a new felony that is separate and distinct from the “principal” felony which is committed by means of a firearm. But such a construction would result in a statute that could not be applied as the legislature intended without running afoul of the double jeopardy prohibitions of our state and federal constitutions. Separate convictions for the “principal” felony and the new use of a firearm felony could not stand without violating the double jeopardy clause. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Woofter v. O’Donnell, Nev., 542 P.2d 1396 (1975); Raby v. State, Nev., 544 F.2d 895 (1976). In short, if the statute were so construed it would be self-defeating and nugatory. Accordingly, we conclude that the statute should be given a construction that will render it both constitutional and effective to carry out the obvious legislative intent.

We hold that this statute does not create a new felony, but, instead amends by implication our other felony statutes, with the exception to be discussed, infra, by adding a proviso to each such statute that if such felony is committed by means of using a firearm the offender shall, in addition to the punishment regularly prescribed for such felony, be further punished as set out in this statute, T.C.A., § 39-4914. See State ex rel. Anderson v. Winsett, 217 Tenn. 564, 399 S.W.2d 741 (1965). This Court held in the Winsett case that the legislature did not create a separate or distinct offense by providing increased punishment for the offender who used a deadly weapon in committing robbery. The Court concluded that by thus amending the robbery statute the legislature merely provided for increased punishment because of the presence of aggravating circumstances.

Although amendments of statutes by implication are not favored, they are recognized as a matter of necessity. English v. Farrar, 206 Tenn. 188, 332 S.W.2d 215 (1960); Pritchard v. Carter County Motor Co., 197 Tenn. 222, 270 S.W.2d 642 (1954); Texas Co. v. McCanless, 177 Tenn. 238, 148 S.W.2d 360 (1941). And, it is not necessary that such amending statutes recite the title or substance of the laws amended by implication. State v. Ritzius, 164 Tenn. 259, 47 S.W.2d 558 (1932); Illinois Cent. R. Co. v. Crider, 91 Tenn. 489, 19 S.W. 618 (1892).

Applying to this case the foregoing construction of T.C.A., § 39-4914, we conclude that the conviction for using a firearm in the commission of a felony is void, since that statute does not create a separate offense but provides only for increased punishment.

The form of the indictment, the verdict, and judgment should have been in compliance with the construction of T.C.A., § 39-4914, which we have set out above. The error, however, is rendered harmless if the judgment is revised by deleting the separate conviction for using a firearm in commission of a felony, T.C.A., § 39 — 4914, and revising the judgment for assault with intent to commit murder in the second degree by specifying that the assault was “committed by means of using a firearm, to wit: a pistol,” and by providing that the punishment for that offense shall consist of the two sentences fixed by the jury for the assault and the use of a firearm in committing a felony convictions, those two sentences to run consecutively. So revised, the judgment will comply with the law as we have herein construed it, the verdict of the jury will be implemented, and no right of the defendant will be abridged.

We further hold that T.C.A., § 39-4914, is to be applied only with respect to those felonies for which the law does not otherwise provide an increase in punishment for use of a firearm in committing such felonies. We construe the legislative intent to be that T.C.A., § 39-4914, is not to be applied to those felonies for which the law already prescribes an enhanced penalty for the offender who commits such felonies by means of a firearm. Although the question is not free from doubt since “deadly weapon” obviously may include more than a “firearm,” we conclude that robbery by use of a deadly weapon, T.C.A., § 39-3901, is a felony with respect to which T.C.A., § 39-4914, does not apply. We are not convinced that the legislature meant to twice enhance the penalty for one who commits robbery by means of a firearm. See Cole v. State, Tenn.Crim.App., 539 S.W.2d 46 (1976); People v. Floyd, 71 Cal.2d 879, 80 Cal.Rptr. 22, 457 P.2d 862 (1969); State v. Harris, 337 Mo. 1052, 87 S.W.2d 1026 (1935). Accordingly, the conviction and sentence in this case for armed robbery is correct in its present form and is affirmed.

We come now to the conviction for carrying a dangerous weapon (pistol) with intent to go armed. T.C.A., § 39-4901. We hold that, under the facts of this case, this offense is one which is separate and distinct from the offenses of armed robbery and assault with intent to commit murder in the second degree by means of using a firearm. Grindstaff v. State, 172 Tenn. 77, 81, 110 S.W.2d 309, 310 (1937); Cole v. State, supra. The statutory definition of the offense of a dangerous weapon requires proof of a fact which each of the other statutes does not, and, vice versa; hence, it is a separate and distinct offense according to the rule approved by this Court in State v. Black, supra. See also Blockburger v. U. S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Gore v. U. S., 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). Nor is it a lesser offense included within either of the other two offenses. Grindstaff v. State, supra; Arterburn v. State, 216 Tenn. 240, 391 S.W.2d 648 (1965). Carr v. State, Tenn.Crim.App., 455 S.W.2d 619 (1970), holding to the contrary, is no longer authority. This offense was completed both before and after the other offenses were committed. State v. Parker, 81 Tenn. 225 (1884). The judgment of the Court of Criminal Appeals on this charge is reversed and that of the trial court reinstated.

This cause is remanded to the trial court with instructions to vacate the judgment entered with respect to the convictions for assault with intent to commit murder in the second degree and using a firearm in committing a felony and, in lieu thereof, to enter a judgment for assault with intent to commit murder in the second degree by means of using a firearm and to revise the sentence, as hereinabove set out. The judgment of the trial court with respect to the offenses of armed robbery and carrying a dangerous weapon with intent to go armed is affirmed. Costs incurred in this Court are taxed equally against the State and the defendant.

FONES, COOPER and HARBISON, JJ., concur.

HENRY, C. J., concurring in part, dissenting in part.

HENRY, Chief Justice,

concurring in part, dissenting in part.

I concur in the opinion of the Court except that I would affirm the Court of Criminal Appeals in the dismissal of the charge of carrying a pistol in violation of Sec. 39-4901, T.C.A. This pistol is “white hot” from overuse.

Petitioner has been punished adequately for this offense. First, his punishment was enhanced, under the armed robbery statute. Second, his punishment was enhanced under Sec. 39-4914, T.C.A.; and third, he was convicted of an assault with intent to commit murder with the same pistol. A fundamental regard for fairness demands that a fourth penalty not be exacted. The public policy has already been fully vindicated. No good purpose would be served by a fourth conviction based upon identical public policy considerations.

Quite aside from these evident considerations of fair play, I do not believe this conviction may stand under the double jeopardy clause of the state or federal constitutions. This conviction, in my view, must fall under Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 2913, 53 L.Ed.2d 1054, 1056 (1977), wherein the Court, quoting from In re Hans Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), said:

[A] person [who] has been tried and convicted for a crime which has various incidents included in it, . cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.

The recent case of Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), makes it clear that the Fifth Amendment “forbids successive prosecution and cumulative punishment for a greater and lesser included offense.”

In reaching this conclusion the Court commented at some length on Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which provided a substantial part of the basis for our holding in Black, supra, and in concluding this portion of the discussion said:

For it is clearly not the case that “each statute requires proof of an additional fact which the other does not.” 284 U.S., at 304 . . . As is invariably true of a greater and lesser included offense, the lesser offense — joyriding—requires no proof beyond that which is required for conviction of the greater — auto theft. The greater offense is therefore by definition the “same” for purposes of double jeopardy as any lesser offense included in it. (Emphasis supplied). 97 S.Ct. at 2226; 53 L.Ed.2d at 195.

This conclusion is inescapable under Blockburger, supra, since under its test each case must require proof that the other does not.

I do not believe that carrying a pistol used in an armed robbery or in an enhanced assault is a separate and distinct crime under Blockburger. It must be borne in mind that the Blockburger test commands that “each ” offense require proof that the other does not.

I advert to the quotation from Brown v. Ohio, supra, and apropos thereto would point out that just as proof of auto theft would necessarily make out a case of joyriding, so would armed robbery establish a case of carrying a pistol. The evidence needed to prove the assault to murder and the robbery necessarily encompassed the proof that the defendant was carrying a dangerous weapon with intent to go armed. This case, therefore, fails the Blockburger test.

It is argued by the State, and asserted by the majority, that this “offense was completed both before and after the other offenses were committed.” This is analogous to the argument made in Brown v. Ohio that “the charges against him focused on different parts of his 9-day joyride.” To which the Supreme Court responded:

The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units. 97 S.Ct. at 2227, 53 L.Ed.2d at 196.

As the majority said in Black, supra, at 919:

each case requires close and careful analysis of the offenses involved, the statutory definitions of the crimes, the legislative intent and the particular facts and circumstances. (Emphasis supplied).

The application of these factors in the context of this case requires a dismissal of the charge of carrying a dangerous weapon.

      . “Any person who shall carry in any manner whatever, with the intent to go armed, any razor, dirk, bowie knife or other knife of like form, shape or size, sword cane, ice pick, sling shot, blackjack, brass-knucks, Spanish stiletto, or a fountain pen pistol or gun, or like instrument containing a firing pin capable of shooting tear gas or pistol cartridges, or any pistol or revolver of any kind whatever, except the army or navy pistol which shall be carried openly in the hand, or any other dangerous weapon, shall be guilty of a misdemeanor.
      “Any person guilty of such offense shall be subject to presentment or indictment, and on conviction shall be fined not less than fifty dollars ($50.00) nor more than one thousand dollars ($1,000), and imprisoned in the county jail, imprisonment only in the discretion of the court; provided, the defendant shall give good and sufficient security for all the costs, fine, and any jail fees that may accrued by virtue of his imprisonment.”


author: COOPER, Justice. FONES, Justice,

text:
    S. H. KING, Mayor and Cecil E. Byrd, William B. Hatcher, Bud Allison, William R. (Billy) Moore, Joe J. Faison, Jr., and H. Donald Holman, Aldermen of the City of Fayetteville, in their official capacity as the Board of Mayor and Aldermen of the City of Fayetteville, Tennessee, and Charles Burklin, William R. (Billy) Moore, Gerald Haislip, Sam Ashby, Jr., and T. C. Widner, in their official capacity as the City of Fayetteville Water and Sewer System Board, Petitioners, v. Thomas A. BROOKS, Paul W. Hancock, Sr., and John R. O’Neal in their official capacity as commissioners of the Highland Rim Utility District of Lincoln County, Tennessee and T. V. Faulkner, Bill Farrar and Edward Sullivan in their official capacity as commissioners of the Mulberry Utility District, Respondents.
    Supreme Court of Tennessee.
    March 6, 1978.
    Thomas 0. Bagley, Stevens, Bagley & Stevens, Fayetteville, for petitioners.
    Fred I. Womack, Womack & Mason, Don Wyatt, Fayetteville, for respondents.
   COOPER, Justice.

OPINION

This is a suit for breach of contract. The controlling issue is whether and to what extent an interpretation of the contract provision in dispute made in a prior action between the parties is binding on them in the present suit, and dispositive of the questions presented in it.

In 1965 and 1966, respectively, the City of Fayetteville entered into contracts with the Highland Rim Utility District and the Mulberry Utility District in which the City agreed to furnish water to the districts. The following provision appeared as paragraph four of both contracts:

The rates to be paid by the District for water consumed in each calendar month shall be twenty cents for each thousand (1000) gallons. In the event the City shall increase or reduce the lowest residential rate to all other customers supplied by its water system, then the rate to the district herein provided, shall be increased or reduced in the same ratio as the residential rate is increased or reduced to all other customers.

The rate schedule in effect at that time provided for a minimum charge of $3.25 for the first 300 cubic feet of water used. The rate decreased as the amount of water used increased, reaching a low rate of thirty cents per 100 cubic feet after the consumption of 3,000 cubic feet. In 1974, the City increased the rates, with the new schedule providing for a minimum charge of $2.75 for the first 100 cubic feet, and for graduated reductions down to 27 cents per 100 cubic feet after the consumption of two million cubic feet. The City calculated that the rate increase applicable to the utility districts under paragraph four of the contracts was 46.6 percent, the percentage increase of the 1974 minimum charge over the 1965 minimum charge, and adjusted the rate charged the districts accordingly. The utility districts brought suit against the City, contending that this interpretation of the contract provision was incorrect. The chancellor agreed, noting that the minimum charge used by the City to determine the districts’ rate increase was in fact the highest residential rate, rather than the lowest, which is the proper basis for the calculation of the rate increase applicable to the districts under paragraph four of the contracts. Construing that paragraph, the chancellor found

. that [“lowest residential rate”] was intended to mean the lowest residential rate all customers would pay, taking into account the whole residential rate structure . . . [,]

and that the increase in the rates payable by the utility districts upon an increase in the general residential rate structure should be computed as follows:

[Cjompute the cost of water to be used by a utility district ... at the residential rates shown in the 1965 and [new] schedules as if the district was to pay for the water at these rates. Compute the percentage of change and apply it to the rate mentioned in the contract. Use the changed rate to compute the cost of water to the district.

The chancellor’s decree has become final.

In 1975, a new rate schedule was issued, calling for a minimum charge of $3.25 for the first 100 cubic feet, a charge of $1.10 per 100 cubic feet for the next 900 cubic feet, and a charge of 80 cents per 100 cubic feet after the consumption of the first 1,000 cubic feet. The City determined the percentage increase applicable to the rates paid by the utility districts in the manner set forth in the chancellor’s decree. The utility districts then filed the instant case, contending in substance that the application of the method of determining the increase in the districts’ rates set forth in the chancellor’s decree to the 1975 rate schedule produced an inequitable result. The City moved for summary judgment on a plea of res judicata, asserting that the chancellor’s opinion in the prior suit was controlling. The chancellor granted the motion. On appeal, the Court of Appeals reversed, and remanded the case for trial. The City petitioned for certiorari.

In determining the effect of the prior judgment on the present action, a distinction must be made between the concepts of res judicata and collateral estoppel. See Shelley v. Gipson, 218 Tenn. 1, 400 S.W.2d 709 (1966). The maintenance of the present action is not barred by the doctrine of res judicata, which, strictly speaking, bars the bringing of a suit on a cause of action that has already been the subject of a final judgment in prior litigation. See National Cordova Co. v. City of Memphis, 214 Tenn. 371, 380 S.W.2d 793 (1964). That situation is not presented here, for, although the subject matter of the two suits between the districts and the City is the same, the cause of action that is the basis for each is not: Fayetteville’s alleged present breach of contract gives rise to a cause of action distinct from that which arose as a result of the alleged breach that was the subject of the suit based on the 1974 rate increase. See Copeland v. Cope land, 180 Tenn. 609, 177 S.W.2d 555 (1944). However, although the new action itself is not barred as the result of prior litigation, the relitigation of certain facts determined in the former action is. Under the doctrine of collateral estoppel, when an issue has been actually and necessarily determined in a former action between the parties, that determination is conclusive upon them in subsequent litigation. See Shelley v. Gipson, supra; A. L. Kornman v. Metropolitan Government of Nashville and Davidson County, 216 Tenn. 205, 391 S.W.2d 633 (1965); Pile v. Pile, 134 Tenn. 370, 183 S.W.2d 1004 (1916).

The meaning of paragraph four of the contracts was at issue in the prior suit between these parties. The chancellor was called upon to interpret the provision by determining the meaning of the terms “lowest residential rates.” The chancellor defined “lowest residential rate” by providing a method, or formula, for its computation. The definition of “lowest residential rate” is the essence of the chancellor’s interpretation of the contracts, and the method by which that rate is computed is the essence of that definition — it is the definition of these terms for the purpose of these contracts and these parties, and is conclusive upon them in the present action.

The method by which the “lowest residential rate” is computed may not be altered without altering the chancellor’s definition of those terms, and his interpretation of the contract provision. That we may not do. Although the parties — or, for that matter, this court — may disapprove of the result of the application of the chancellor’s definition to the 1975 rate schedule, that definition may not be questioned at this time and in this action. Any objections should have been raised on appeal of the prior case. They were not, and thus the parties are bound, as are we.

If the chancellor’s definition of “lowest residential rate” and his interpretation of the contract provision at issue, as set forth in his opinion in the prior action, are applied to the present case, it is apparent the Fa-yetteville’s action in raising the rates charged the utility districts was proper under the contracts. Accordingly, the chancellor’s grant of summary judgment to the City was correct.

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

HENRY, C. J., and HARBISON, J., concur.

FONES and BROCK, JJ., dissent.

FONES, Justice,

dissenting.

OPINION

I respectfully dissent.

I agree that the Chancellor’s construction in the first suit, of the ambiguous paragraph tying increases to the “lowest residential rate to all other customers” is binding on the parties in this suit.

I do not agree with the majority’s assertion that the mathematical formula used in the first suit to determine the percent of increase of the 1974 rate schedule over the 1965 rate schedule “is the essence of the Chancellor’s decision.”

In deciding the first case between these parties, the Chancellor noted that Fayette-ville had used only the percentage of increase by which the 1974 minimum charge exceed the 1965 minimum charge, to calculate the rate due by the Utility Districts under paragraph four of the contracts. He correctly observed that the minimum charge was in fact the highest residential rate and that the lowest rate was the last figure in the schedule, applicable after the consumption of 3,000 cubic feet in 1965, 2,000 in 1969, and 2,000,000 in 1974.

Construing paragraph four of the contract, the Chancellor held as follows:

“It is deduced that the lowest residential rate as used in the contracts was not intended by the parties to mean either the lowest rate mentioned in the schedule or the minimum rate. It is concluded instead that it was intended to mean the lowest residential rate all customers would pay, taking into account the whole residential rate structure. The contracts are speaking of the lowest residential rate ‘to all other customers’ and these customers pay rates based on the amount of water used from a minimum to a maximum.”

In his memorandum opinion, the Chancellor approximated the “composite increase” applicable to Mulberry on a consumption of 70,000 cubic feet per month to be about fifty (50%) percent and about thirty (30%) percent applicable to Highland Rim, on 600,000 cubic feet per month, and directed the parties make the necessary calculations.

In the final judgment, entered May 2, 1975, a formula to compute the rate to charge the Utility Districts in any given month was expressed as follows:

“ . . .to determine if a change has been made in the ‘lowest residential rate’ as used in the contracts, compute the cost of water to be used by a utility district in any given month at the residential rates shown in the 1965 and 1974 schedules as if the district was to pay for the water at these rates. Compute the percentage of change and apply it to the rate mentioned in the contract. Use the changed rate to compute the cost of water to the district.”

In the second case, Fayetteville filed an answer and the affidavit of the manager of the water system, setting out the 1975 residential rate schedule and a detailed calculation of the rate to be charged Highland Rim and Mulberry for the month of July, 1975, using the formula prescribed in the final decree of May 2, 1975. Fayetteville’s motion for summary judgment on the ground the 1975 rate increase had been applied in accord with the construction of the contract made by the Court in the prior suit was sustained.

It is necessary to distinguish between the Chancellor’s interpretation of paragraph four, as expressed in his memorandum opinion, which is a part of the final decree in the first suit, and the formula applied to the 1974 rate schedule. That formula produced a result that was in accord with paragraph four, when applied to the 1974 rate schedule, but it can be readily seen that it does not do so when applied to the 1975 schedule. It is paragraph 4 of the contracts that controls computation of the increased rate to be charged Highland Rim and Mulberry, not the formula used to compute the 1974 rates. The application of that formula to the 1975 rates appears to have produced a result inconsistent with the intent of the contracts.

The gravamen of the second action was that the formula applied to the 1975 schedule resulted in an increase of Highland Rim’s rate from 19.35 cents to 39.9 cents per 100 cubic feet, in excess of one hundred (100%) percent, and an increase of Mulberry’s rate from 23.06 cents to 39.18 cents per one hundred (100) cubic feet, in excess of seventy (70%) percent; that the 1975 rates have increased the cost of water to residential users only eleven (11) to thirteen (13%) percent; that the 1975 schedule does not have a proportionate “across the board” rate of increase, but volume commercial users are charged as low as thirty-eight (38) cents per one hundred (100) cubic feet while the lowest rate in the formula applied to the Utility Districts’ contracts is eighty (80) cents. Plaintiffs alleged that the 1975 schedule was deliberately structured and designed to produce that inequitable result, in combination with the formula used in 1974, because of Fayetteville’s dissatisfaction with the Utility District contracts.

The record before us reflects that the 1975 rate schedule was structured in a manner that represented a substantial departure from the three (3) prior rate schedules issued during the life of the contracts. Pri- or schedules contained reduced rates as volume increased, the 1974 schedule reducing from eighty (80) cents per one hundred (100) cubic feet after the first one thousand (1,000) cubic feet to a low of twenty-seven (27) cents per one hundred (100) cubic feet.

The 1975 schedule, the subject of this suit, did not reduce any after reaching its lowest rate of eighty (80) cents per one hundred (100) cubic feet after the first one thousand (1,000) cubic feet. However, a commercial rate schedule was simultaneously issued that carried a scheduled reduction downward to its lowest rate of thirty-eight (38) cents per one hundred (100) cubic feet. The complaint of the utility districts alleges that 1975 was the first rate schedule to contain a commercial rate schedule and, so far as the record before us reflects, that is true.

In my opinion, the utility districts were entitled to a trial on the merits of their allegations that Fayetteville deliberately and in bad faith designed a 1975 rate schedule that, when computed by the 1974 mathematical formula, produced a disproportionate increase to them, as compared to residential users, in violation of paragraph four (4) of the contract. Therefore, I would affirm the result reached by the Court of Appeals and remand the case for trial.

I am authorized to state that Justice BROCK concurs in this dissent.


author: FONES, Justice.

text:
    DAVIDSON AND GRAHAM CONSTRUCTION COMPANY, Appellant, v. Ray S. McKEE, Appellee.
    Supreme Court of Tennessee.
    March 6, 1978.
    W. Frank Brown, III, Breazeale & Brown, Chattanooga, for appellant.
    Russell J. Bean, Bean, Bean & Bean, Chattanooga, for appellee.
   FONES, Justice.

OPINION

Defendant, Davidson and Graham Construction Company, appeals from the decree of the trial court awarding workmen’s compensation benefits for a ninety (90%) percent permanent partial disability of plaintiff’s left eye.

Defendant insists that the statute of limitations began to run on May 8, 1975, the date of the accident and injury to plaintiff’s eye; that the filing of this action on January 11, 1977, more than one (1) year later, was barred.

The trial judge expressly found that plaintiff did not know there would be any permanent retinal damage to his eye until so informed by Dr. Dahrling in April, 1976, and that the suit was timely filed.

Plaintiff, Ray S. McKee, was working as a lead carpenter framing cornices on the back of a house. While he was nailing the frame overhead, a sixteen penny nail flipped from under his hammer and stuck in his left eye. He pulled the nail out, drove home and then to Memorial Hospital where he was referred to Dr. Arnold, an ophthalmologist. After examination at Dr. Arnold’s office, he was admitted to Erlanger Hospital. Doctor Arnold testified that McKee sustained a laceration of the sclera, that it was punctured, and some fluid leaked out. Surgery was performed at the hospital to repair the laceration and excise the iris prolapse. Plaintiff was discharged on May 12, 1975.

Plaintiff was seen by Dr. Arnold on May 15, 19, and 26, 1975. On the May 26 office visit, vision in his left eye was 20/20. He was examined by Dr. Arnold on June 7, and 16, and was told he could return to work.

Plaintiff testified that he had headaches and flashes of light and that sometime around September, 1975, he developed a hazing in his left eye. However, he did not see a doctor from June, 1975, until he returned to Dr. Arnold’s office January 5, 1976.

Doctor Arnold found his vision to be 20/60 in the left eye and 20/30 in the right eye. He testified that he could not find anything wrong with plaintiff’s eyes, so he referred him to Dr. Dahrling, an ophthalmologist who specializes in disorders of the retina.

Doctor Dahrling testified that when he examined plaintiff on January 14, 1976, his retinas looked good, and he explained to plaintiff that, “we really didn’t see anything wrong, that we felt that perhaps he was suffering some of this distortion from traction on the retina by the vitreous and told him that we’d like to check him again in three months.”

Plaintiff returned to Dr. Dahrling on April 5, 1976. The doctor testified that he became a bit concerned about what was going on because he didn’t find anything wrong to explain plaintiff’s problem. He sent plaintiff back to Dr. Arnold to make certain there was nothing in the front part of the eye, the cornea, or the lens, that could account for plaintiff’s problem, and he also instructed plaintiff to return to his office in three (3) months. However, plaintiff returned in May complaining of pain in the left eye of two (2) days duration. Doctor Dahrling found that he had cells in the vitreous, indicating an inflammatory reaction. Plaintiff was given an injection of celestone and put on cortisone drops. On his next visit, late in May, his vitreous was much clearer. Doctor Dahrling also saw plaintiff in July, September and November. Again Dr. Dahrling became concerned because he could find no condition that would explain plaintiff’s loss of vision and visual field and he sent plaintiff to Dr. Ira Long for examination. Doctor Long’s report, dated December 16, 1976, stated that he could not discover any organic cause for plaintiff’s visual problems.

The only diagnosis of an organic condition made by Dr. Dahrling was vitreitis, a posterior vitreous detachment, and he found it difficult to account for the degree of loss of vision and the visual field loss on the basis of vitreitis. At one point in his testimony he described the degree of plaintiff’s loss as “surprising if one tries to relate to the vitreitis.” He indicated that vitreitis can usually be controlled by cortisone type preparations. Doctor Dahrling explained that plaintiff’s visual field was less than five degrees in the left eye, which gave rise to concern about the possibility of neurologic problems in the optic nerve. However, he said that any injury to the optic nerve would be indicated by a whitening of the nerve within two (2) to six (6) months and that no evidence of nerve damage had yet appeared.

In Griffitts v. Humphrey, 199 Tenn. 528, 288 S.W.2d 1 (1955), the Court resolved the question of whether the date of the accident or the date of known disability triggers the statute of limitations. The conflict arising from the use of the word “accident” in Tennessee Code Annotated § 50-1003 and “injury” in Tennessee Code Annotated § 50-1017 and the conflicting interpretations of those statutes in Graham v. J. W. Wells Brick Co., 150 Tenn. 660, 266 S.W. 770 (1924), and Ogle v. Tenn. Eastman Corp., 185 Tenn. 527, 206 S.W.2d 909 (1947), were discussed at length. In overruling Graham and approving the result of Ogle, the Court gave as its principal reason for adopting the date of the injury rather than the date of the accident as the beginning date of the statute of limitations, the rationale of Salt Lake City v. Industrial Commission, 93 Utah 510, 74 P.2d 657 (1939). The crux of that rationale is found in the following excerpt from the lengthy quote in Griffitts:

“Not until there is an accident and injury and a disability or loss from the injury does the duty to pay arise. A mere accident does not impose the duty to pay. Accident plus injury therefrom does not impose the duty. But accident plus injury which results in disability or loss gives rise to the duty to pay. When the employer refuses or ceases to pay compensation, the cause of action against him arises.” 288 S.W.2d at 4.

The Griffitts decision has been consistently followed by this Court. Of particular significance here, the Court in Imperial Shirt Corporation v. Jenkins, 217 Tenn. 602, 399 S.W.2d 757 (1966), quoted with approval from Larson on Workmen’s Compensation, Volume 2 § 78.41 page 261, the following:

“A fortiori, his claim should not be barred when qualified physicians have been unable to present him with a diagnosis of his condition within the period of limitations.”

Defendant, in insisting that the statute began to run on May 8,1975, relies upon the fact that plaintiff had problems with a flashing effect in his left eye almost continually after the injury, and he developed a hazing problem in September, 1975. From these conditions, defendant seemingly insists that plaintiff should have known that he would have a permanent disability in his left eye.

Plaintiff testified that Dr. Arnold told him the flashing in his left eye would clear up. While Dr. Arnold, whose deposition was taken two (2) weeks before trial, was not expressly asked whether or not he told plaintiff the flashing would clear up, it is unmistakable from his testimony that when he saw plaintiff on June 16, 1975, he thought plaintiff had made an uneventful recovery from his injury, could see 20/20 with his left eye, and further that, “his eye looked good.”

When plaintiff returned to Dr. Arnold’s office on January 5, 1976, complaining of flashing, hazing and reduced vision, Dr. Arnold could not find any organic condition to account for these problems. With respect to that visit, he was asked on cross-examination, and answered:

Q. This flashing condition he stated that he had for some time, that he had had since the surgery, did this condition or this revelation to you, did that bother you so far as his previous recovery was concerned?
A. He looked all right at the time when I saw him. Of course, his vision apparently was down. He was complaining of this. That’s why I thought we would get a retinal specialist to look at it.
Q. Did you make any statement or give any explanation as to why the reference was given?
A. I don’t recall, but I probably said that since he is complaining of flashes of light, and I didn’t see anything wrong, I would send him up and let somebody else look at him.

Doctor Dahrling testified at the trial of this case. After the lawyers had completed their examination of the witness, the trial judge asked him if plaintiff was first advised in April, 1976, that he had a retina problem. The witness said that he advised plaintiff of retinal symptoms on April 6, 1976, and had a notation on his record to that effect. He added that it was possible that he could have mentioned it earlier, because of a .ritual that he usually goes through, but on the other hand that he usually made a note on his chart when he did that.

It is immaterial to the result of this case whether Dr. Dahrling mentioned the possibility of a retina problem that could result in permanent disability at the April 6, visit or earlier. He first saw plaintiff January 14,1976, and this suit was filed January 11, 1977. Further, from our careful examination of Dr. Dahrling’s testimony, we think it implicit that he entertained the hope and expectation that plaintiff would not have a permanent disability when he saw plaintiff in January, and April of 1976, and perhaps for several months beyond April. In fact, there is no express testimony in the record that Dr. Dahrling ever told plaintiff that his “retina symptoms” could or might result in permanent disability. There is merely an implication that he may have told plaintiff of the potentiality of permanent damage. It is clear that as late as December, 1976, neither Dr. Arnold, Dr. Dahrling nor Dr. Long had been able to find any organic condition that could account for plaintiff’s loss of vision. It is reasonable to assume that all three (3) doctors continued to be surprised that plaintiff had visual problems of the scope and permanency that he continued to evince. There is no evidence whatever that plaintiff did not share their optimism and we, of course, cannot attribute knowledge to the plaintiff of his prognosis superior to that of the doctors.

Defendant’s reliance upon Reed v. Genesco, Inc., 512 S.W.2d 1 (Tenn.1974), and Taylor v. Clayton Mobile Homes, Inc., 516 S.W.2d 72 (Tenn.1974) is misplaced, in our opinion. In Reed, plaintiff was advised by his physician more than one (1) year prior to filing suit that he had a detached retina and should have surgery. In Taylor, employee sustained a fracture of the sacrum and an injury to her cervical spine in an accident that occurred on September 21, 1971. She recovered from the fracture of the sacrum without any permanent disability, or loss of time from work and her medical expenses for that injury were paid. She filed suit on August 23, 1973, for the injuries to her cervical spine that resulted in a laminectomy in February, 1973. Ms. Taylor testified that for the first two months after the accident the pain in her sacrum was so severe that she paid no attention to the discomfort in her neck; that she went to Dr. Smith in July or August, 1972, and he hospitalized her on August 21, 1972, for conservative treatment of her cervical spine and she was discharged without obtaining any substantial relief.

In the Taylor case, plaintiff’s testimony revealed the presence of continued and persistent pain in the cervical area from the date of the accident, plus hospitalization more than one year prior to filing suit, for treatment of that condition without beneficial results. The trial judge found that she had sufficient knowledge of a compensable injury more than one year prior to filing suit and this Court found material evidence to support his judgment.

In the instant case, the evidence supports a finding that plaintiff and his doctor thought he had made a complete recovery from the injury to his left eye, in June, 1975. He had 20/20 vision and his “eye looked good.” Doctor Arnold found nothing on January 5, 1976, to reverse that opinion. Whatever apprehension the doctor may have entertained because McKee’s vision was less than 20/20, he did not reveal to McKee when he sent him to Dr. Dahr-ling. On January 14, 1976, Dr. Dahrling told plaintiff that he “really did not see anything wrong.” Thus, the distinguishing feature of this case is that plaintiff had been led to believe that, medically, he had made a full recovery, and a fortiori, had no compensable injury. It was not until April, 1976, that his doctors gave him any information to the contrary.

The trial judge has rejected defendant’s insistence that the mere fact that he had problems with his vision between June, 1975, and January, 1976, was sufficient to charge him with knowledge of a compensa-ble injury. We think there is material evidence to support a finding that McKee was entitled to rely on the full recovery status of his eye in June, 1975, until a date beyond January 11, 1976, one year prior to the filing of this suit.

There is no merit to defendant’s contention that the award of ninety (90%) percent disability was erroneous because it was not causally connected to the injury. Doctor Dahrling testified that it was so connected.

Affirmed. Costs are adjudged against defendant, Davidson and Graham Construction Company. The cause is remanded to the trial court for the enforcement of the decree.

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


author: HARBISON, Justice.

text:
    CAPITOL NEWS COMPANY, INC. and Borchert Enterprises, Inc., Appellants, v. The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Tennessee, Appellee.
    Supreme Court of Tennessee.
    March 6, 1978.

      Joel H. Moseley, Nashville, for appellants.
    J. R. Slobey, Metropolitan Atty., Nashville, for appellee.
   OPINION

HARBISON, Justice.

In this case appellants challenge the constitutionality of an ordinance of the Metropolitan Government enacted in October 1976, prohibiting the willful sale or commercial distribution of explicit sexual and pornographic materials to minors. After an evidentiary hearing the Chancellor upheld the ordinance. We affirm his decision.

Insofar as the record reveals, under the ordinance one arrest has been made of personnel of appellants. The facts incident to that arrest are uncontradicted. Some time after the ordinance had been enacted and businesses having magazines and newsstands had been advised thereof, police officers went into a neighborhood grocery store operated by Borchert Enterprises, Inc. There they found some explicitly sexual materials being openly displayed for sale and others being displayed on racks behind covers or blinders. They observed a seventeen-year-old boy looking through an “adult” magazine, conceded to be such by the president of the company. This official had given instructions concerning the sale and display of “adult” literature of this nature, but he testified that his instructions apparently had not been followed in this instance. The arresting officer purchased a copy of a magazine which, by any standards of which we are aware, would be deemed hard-core pornography, entirely unsuitable for sale to minors, and displayed openly on racks within a few inches of the floor, in the same area where the minor was observed. The officer testified that there were a number of other magazines of this type on the same rack.

The president and the operator of the market were charged with violation of the ordinance, and part of the transcript of the hearing before the General Sessions Court was introduced as evidence in the present case.

There is no issue in this case of the guilt or innocence of the owner or its employee in the incident above described, nor is there an issue as to the obscenity of any particular magazine or publication. The present suit was brought for declaratory and incidental relief on three grounds. It is alleged that the ordinance is unconstitutional for vagueness, that it authorizes punishment without a jury trial greater than that permitted by state law, and that it deals with a subject which has been pre-empted for exclusive regulation by the General Assembly.

To raise these issues, little or no evidentiary material was necessary. Apparently, however, appellants also sought to demonstrate that the ordinance was being enforced in such a manner that compliance with its terms was difficult, if not impossible, by persons engaged in the distribution and sale of magazines and other publications. If this was the purpose of the evidence offered, it was insufficient. In our opinion the record does not establish any unconstitutional application or enforcement of the ordinance, if the same is otherwise valid.

The ordinance itself is quite brief and is not a model of legislative draftmanship. Nevertheless its intent is clear. It prohibits persons from willfully engaging in the business of selling or otherwise distributing to minors under eighteen years of age materials, “the cover or content of which exploits, is devoted to or is principally made up of descriptions or depictions of illicit sex or sexual immorality or which is lewd, lascivious or indecent” or which depicts nudity “in a manner to provoke or arouse lust or passion or to exploit sex, lust or perversion for commercial gain.” Likewise prohibited are the possession of materials with intent to engage in such business or the displaying of such materials at newsstands or other places of business which are patronized by minors or to which minors are invited as customers.

There is a series of definitions which are quite specific in giving content to the terms “description or depiction of illicit sex or sexual immorality,” and “nude or partially denuded figures.”

The ordinance also contains a definition of the term “knowingly,” as actual or constructive knowledge of the nature of the materials purveyed. The word “knowingly” is not otherwise found in the text of the ordinance, but the term “willful” is used, and the draftsman apparently intended this to include the requirement of scienter.

Violation of the ordinance is punishable by a fine of fifty dollars. The language used is that the fine shall be “not less than” fifty dollars. However, since there is no other penal sanction, such as a jail sentence or a greater fine, we have no difficulty in construing the ordinance to impose a fine in the amount of only fifty dollars and not to authorize a penalty of any greater or different kind. The courts should construe an ordinance so that it complies with constitutional provisions, if it is susceptible thereof.

The foregoing interpretation eliminates any alleged conflict with Article I, Sections 6 and 14 of the Tennessee Constitution, providing for jury trial and the answering of criminal charges by presentment, indictment or impeachment. Although the ordinance may be criminal rather than civil in nature, petty offenses punishable with fines up to fifty dollars are not embraced within these constitutional provisions. Likewise the ordinance, so construed, does not violate Article VI, Section 14, prohibiting the imposition of fines in excess of fifty dollars except by a jury. See Trigally v. Mayor and Aldermen of Memphis, 46 Tenn. 382 (1869); Howard and Von Drake v. State, 143 Tenn. 539, 227 S.W. 36 (1920); Metropolitan Government v. Miles, 524 S.W.2d 656 (Tenn.1975). The ordinance is entirely unlike that involved in the unreported opinion of the Court of Appeals in the case of City of Cookeville v. Amonette, relied upon by appellants, where, in addition to a fine, there was provision for a jail sentence of eleven months and twenty-nine days without opportunity for a jury trial. The Court of Appeals held that the provisions of that ordinance were in contravention of the general state law and of the constitutional provisions cited above.

Accordingly we overrule the assignment of error challenging the penal provisions of the ordinance.

One of the principal contentions of appellants is that the ordinance is unconstitutionally vague and that it restricts freedom of expression under the First Amendment to the United States Constitution. We have examined the ordinance in light of the cases relied upon by the appellants, and we are not able to agree with these contentions.

The ordinance in question deals with the limited subject of sales or display to minors. It is not a general obscenity ordinance. The cases seem clear that special standards, more stringent and restrictive, may be embodied in legislation aimed at controlling dissemination of erotic or pornographic materials to minors than in regulations dealing with adults. See Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975).

In attacking the ordinance for vagueness, appellants rely principally upon the factors discussed in Hynes v. Mayor and Council of Oradell, 425 U.S. 610, 622, 96 S.Ct. 1755, 1761, 48 L.Ed.2d 243 (1976). There the Court found an ordinance imper-missibly vague, holding that: (1) the coverage of the ordinance was unclear; (2) the ordinance did not sufficiently specify what those within its reach must do in order to comply — it could “trap the innocent by not providing fair warning”; (3) the ordinance did not “provide explicit standards for those who apply it.”

Appellants insist that the ordinance could be construed in such a manner that it would be violated by any person “who might conceivably sell, lend, give away, show, adver- - tise for sale or distribute any motion pictures, live show, still picture, photograph, book, pocketbook, pamphlet or magazine of a nude or partially denuded figure . . .”

We do not believe that the ordinance is reasonably susceptible to such a broad or sweeping interpretation or that the courts would permit abusive prosecutions based upon a strained or extreme construction of its provisions. It prohibits persons from willfully selling or distributing explicit sexual materials to minors, and defines in words which are simple and easy to understand what is meant by the depictions of illicit sexual conduct or nudity. Further)"! display of nudity is only prohibited when it \ occurs in a manner designed to provoke or arouse lust or passion or to exploit sex, lust or perversion for commercial gain. We find entirely unpersuasive the contentions of appellants that incidental displays of nude or partially nude figures in magazines of general circulation, such as the National Geographic, Cosmopolitan or Vogue, copies of which were filed in the record, violate this ordinance. The ordinance is clearly directed at the sale of pornography to young persons, and there is a requirement of scien-ter, in that it only applies to persons who willfully engage in the display and sale of this sort of material to minors.

We find no lack of clarity in the ordinance in this respect or any insufficiency of warning given to those who knowingly engage in the distribution and sale of such materials in places where minors are invited as customers. The ordinance covers only persons who knowingly engage or intend to engage in such distribution as a commercial enterprise or business, and we find untenable appellants’ contentions that its terms prohibit such activities as the televising of films relating to breast cancer.

A primary insistence of appellants is that the ordinance fails to specify what they must do to comply. Of course the ordinance only prohibits the knowing and intentional distribution of the proscribed materials to minors. It does not deal with sale or distribution to adults. There is a state statute, T.C.A. § 39-1018, which requires the display of predominately sexual materials in drug stores, grocery stores and similar business establishments on racks or shelves five and one-half feet above the floor. In addition the witnesses offered by appellants testified that their business practices and rules required blinders or opaque covers over materials which they deemed to be “adult” in nature. There is no evidence that careful compliance with the foregoing statute and with these company policies would still leave the owners or employees of newsstands exposed to prosecution under the Metropolitan ordinance. Indeed, the contrary is indicated, but in the one instance where an arrest was made, the store employee failed to follow the directions of his own employer as to how such materials should be handled within the store. There is no showing that the police have arrested or harassed any individual who took any reasonable precautions whatever to prevent the deliberate and intentional sale or exhibition of the proscribed materials to minors.

We find no lack of specificity in the ordinance as to what standards should be applied for determination of guilt. The ordinance is not obscure in this regard, and, as previously stated, does not involve mere inadvertent or negligent distribution or display, or prohibit anything except the deliberate, willful and knowing selling or displaying for commercial distribution of pornography to young people.

We do not find the ordinance to be imper-missibly vague as was the canvassing ordinance dealt with in the Hynes case. On the contrary we find that it can and should be construed, interpreted and applied within constitutional limitations and requirements.

The final insistence of appellants is that the ordinance regulates a subject which has already been preempted by a set of general state statutes, T.C.A. §§ 39-1012 et seq. This, of course, involves an examination of these statutes and a determination of legislative intent.

In one of the leading cases on the subject in this state, Southern Ry. v. City of Knoxville, 223 Tenn. 90, 98-99, 442 S.W.2d 619, 622 (1968), the Court quoted with approval the following:

“ ‘The mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements. So long as there is no conflict between the two, and the requirements of the municipal by-law are not pernicious, as being unreasonable or discriminatory, both will stand, but municipal authorities, under a general grant of power, cannot adopt ordinances which infringe the spirit of a state law or are repugnant to the general policy of the state.
“ ‘As a general rule, additional regulation to that of the state law does not constitute a conflict therewith. The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith, unless the statute limits the requirement for all cases to its own prescriptions.’ ”

There is nothing in the statutes referred to, dealing with the sale or exhibition of pornographic material to minors, to indicate that the General Assembly intended to prohibit municipal corporations from adopting local ordinances on the same subject. Both the statutes and the present ordinance are prohibitory. They are not at cross purposes, where one undertakes to permit conduct in an area prohibited by the other.

Other state statutes authorize municipal corporations to enact by-laws and ordinances under their police power, including power “to prohibit indecent exhibitions” within their limits. T.C.A. § 6-202(11).

Statutes dealing with metropolitan governments give them broad legislative authority, but specifically prohibit them from adopting ordinances regulating certain activities which are made exclusively subject to state law. Those are enumerated in the statutes, and include the offenses of driving while intoxicated, leaving the scene of an accident, driving on a revoked license and drag racing. See T.C.A. § 6-3725. Nothing in the general statutes prohibits metropolitan governments from adopting ordinances dealing with the sale of pornographic materials to minors.

We are aware that in some cases comprehensive statutes dealing with the entire field of criminal obscenity have been construed to prohibit local ordinances on the same subject. See Whitney v. Municipal Court of San Francisco, 58 Cal.2d 907, 27 Cal.Rptr. 16, 377 P.2d 80 (1962); People v. Llewellyn, 401 Mich. 314, 257 N.W.2d 902 (1977); Dimor v. Passaic, 122 N.J.Super. 296, 300 A.2d 191 (1973).

In the case of City of Tacoma v. Naubert, 5 Wash.App. 856, 491 P.2d 652 (1971), a specific statute dealing with the sale of erotic material to minors was held to preempt local authority. In that case, however, there was language in the statute expressly making its provisions exclusive. Also stressed were provisions that only the prosecuting attorney, a state official, could institute prosecutions.

The general Tennessee obscenity statutes, T.C.A. §§ 39-3010 et seq., expressly provide that the distribution of obscene materials to minors shall be governed by the more specific provisions of T.C.A. §§ 39-1012 et seq., and that in case of any conflict the provisions of the latter statutes shall control. T.C.A. § 39-1016 prohibits the issuance of process for violation of part of these sections unless it is sued out upon application of the District Attorney. This restriction, however, does not apply to prosecutions instituted in juvenile courts. Nor does it apply to T.C.A. § 39-1017, banning certain moving picture advertisements, nor to T.C.A. § 39-1018, prohibiting the sale and display in drugstores, grocery stores, etc., of predominately sexual materials except at a prescribed height. Violations of these provisions can be prosecuted by local as well as state officials.

Further indication that the provisions of T.C.A. § 39-1012 are not intended to be exclusive is found in the provisions of T.C.A. § 6-647 et seq., authorizing municipalities in larger cities of the state to create motion picture regulatory boards. These boards are authorized to classify commercial films for viewing by minors, and ordinances may be adopted providing fines for violations. Injunctive and other relief may be obtained for the improper exhibition of motion pictures deemed “unsuitable for minors.” T.C.A. § 6-650. Thus, it is clear that local ordinances and regulations on that subject are both authorized and contemplated despite the fact that there are penal and injunctive remedies provided for violation of the state statutes on exhibition of erotic or pornographic films and other materials to minors in T.C.A. §§ 39-1013, 1016 and 1017.

While the wisdom or desirability of having a local ordinance dealing with the same general subject as that contained in state statutes may be debatable, we do not find any expression of legislative intent in the provisions under consideration, T.C.A. §§ 39-1012 — 1018, that the state statutes shall be exclusive or pre-emptive in the field. The General Assembly has provided for such pre-emption in certain instances, and could easily do so in the area here under consideration if it should see fit. In our opinion it has not at the present time prohibited local governments from adopting ordinances dealing with the sale or display of obscene materials to minors.

The assignments of error are overruled and the judgment of the trial court is affirmed at the cost of appellants.

HENRY, C. J., COOPER and BROCK, JJ., and DAUGHTREY, Special Justice, concur.

      . It is stated in the brief of appellee that the Metropolitan Charter expressly authorizes it to adopt ordinances on pornography and related subjects. The charter itself is not in evidence, nor are some other ordinances which are cited. These are matters of which courts ordinarily may not take judicial notice. See Metropolitan Government v. Shacklett, 554 S.W.2d 601, 605 (Tenn.1977).

      . T.C.A. § 39-3013(B).

      . For discussion of such review boards and some of the local ordinances adopted pursuant to T.C.A. §§ 6-647 et seq., see Note, Film is a Four Letter Word, 5 Mem.St.L.Rev. 41 (1974).