author: HENRY, Justice.

text:
    AMERICAN INSURANCE COMPANY a/k/a Fireman’s Fund American Insurance Company, Appellant, v. Eugene ISON, Appellee.
    Supreme Court of Tennessee.
    June 1, 1976.

      Robert R. Campbell, Hodges, Doughty & Carson, Knoxville, for appellant.
    James W. Justice, Mann & Justice, Knoxville, for appellee.
   OPINION

HENRY, Justice.

This case involves a workmen’s compensation proceeding in which the only question for our determination is whether there is any material evidence to support the finding of the trial court that the appellee was disabled as the result of an occupational disease for which compensation is afforded by T.C.A. § 50-1101. This case has been involved in an extended litigation, and has already been the subject of one consideration of its merits by this Court. The facts, as relevant to the present appeal, are summarized herein.

I.

On February 2, 1973 Eugene Ison, a pneumatic jackhammer drill operator for the Johnson Drilling Co., Inc., sustained a rib injury and a partially collapsed lung as the result of an accident arising out of and in the course of his employment. During the treatment of these injuries it was discovered that the appellee also suffered from a “chronic obstructive lung disease”, whereupon he was referred to Dr. William K. Swann, a specialist in the treatment of lung diseases. On September 7, 1973 suit was filed in the Circuit Court of Knox County, Tennessee, in which the appellee sought to recover workmen’s compensation benefits for injuries sustained by him in the February 2,1973 accident, as well as benefits for an occupational lung disease allegedly arising out of and during the course of his employment.

After considering an evidentiary deposition taken from Dr. Swann to the effect that Mr. Ison’s chronic obstructive lung disease was either caused or aggravated by his occupational exposure to rock dust, the trial court awarded compensation for permanent and partial disability to the extent of fifty per cent (50%) to the body as a whole by reason of an occupational disease which arose out of and in the course of the appel-lee’s employment.

The case was subsequently appealed to this Court. We reversed the judgment of the trial court and remanded the case for a new trial, indicating certain deficiencies in the appellee’s proof. Specifically, we relied upon the holding of this Court in Knoxville Poultry & Egg Co. v. Robinson, 224 Tenn. 124, 451 S.W.2d 675 (1970), wherein it was stated that:

this record is simply devoid of competent evidence as to (1) whether or not the malady complained of . had its origin and cause in a hazard incident to . employment; and (2) whether that malady is to be medically considered as . closely related, in a causal sense, to one of the specified compensable occupational diseases. (Emphasis supplied). 224 Tenn. at 128, 451 S.W.2d at 677.

Having thus been instructed as to the necessary additional evidentiary proceedings, the parties, by stipulation, agreed on remand to submit the case to the trial court, based solely upon the evidence and relevant pleadings introduced at the first hearing, and a further supplemental deposition given by Dr. Swann. As a result of the new trial it was found that the supplementary deposition of Dr. Swann supplied the evidentiary deficiencies which had been exposed by this Court, and, therefore, that the appellee was entitled to the permanent partial disability of fifty per cent (50%) as determined in the earlier proceeding. Specifically, the trial court concluded that Mr. Ison’s disability was:

closely related to silicosis and that this condition had its origin in the dusty work environment which was a risk connected with and inherent in his employment.

II.

Appellant conceded in its brief and before the Bar of this Court that based upon the supplementary evidence introduced at the new trial it could reasonably be concluded that the pathological effects and symptoms of Mr. Ison’s diagnosed condition were sufficiently related to a com-pensable occupational disease. We are in full accord with this conclusion.

It is well-settled in this State that the reviewing court will not disturb a workmen’s compensation award where there is any material evidence to support the trial court’s findings. See Cassell Bros., Inc. v. Cole, 519 S.W.2d 796 (Tenn.1975), and cases cited therein. The supplemental deposition given by Dr. Swann provides sufficient evidence to support the trial court’s finding that Mr. Ison’s chronic obstructive lung disease was so closely related to silicosis that it should be deemed compensable as an occupational disease under T.C.A. § 50-1101.

III.

The only issue, therefore, to be determined by this appeal is whether the supplementary deposition by Dr. Swann supplied any material evidence that Mr. Ison’s lung disease had its origin and cause in a hazard incident to his employment.

In order to resolve this issue it is necessary for us to examine the portions of Dr. Swann’s supplementary deposition relevant thereto. The following responses were elicited from Dr. Swann upon direct examination.

Q. Now, Doctor, do you have an opinion based on reasonable medical certainty as to which is the more probable, that Mr. Ison’s diagnosed lung condition is or is not related to his employment where he used a jackhammer drilling hard rock over a period of eight years?
A. In my opinion, it is most probable that Mr. Ison’s lung condition is related to his employment as described.
Q. Doctor, do you have any opinion based on reasonable medical certainty as to which is the more probable, that Mr. Ison’s diagnosed lung condition pre-existed his employment where he used a jackhammer drilling hard rock, or came about after he began his employment as a jackhammer operator?
A. The medical history which this man gave me would lead me to believe that his lung condition came about after he began his employment as a jackhammer operator. I have no history of any pulmonary problems arising prior to this employment. (Emphasis supplied).

On the subsequent cross-examination, Dr. Swann responded to questioning, in pertinent part, as follows:

Q. And you testified previously, which you have said here today, that you can say with reasonable medical certainty that the breathing of rock dust or any dust, for that matter, would aggravate chronic obstructive lung disease?
A. Yes.
Q. By the same token, I believe you have testified that you cannot say with reasonable medical certainty that the chronic obstructive lung disease which Mr. Ison had was caused by the work that he gave a history of?
A. I can not say that positively, no. (Emphasis supplied).

Appellant argues that the cumulative effect of Dr. Swann’s testimony, taken in its entirety, is that Mr. Ison’s diagnosed lung disease was merely related to his employment, either causally or by aggravation, and, as such, the requirements set forth by this Court in American Ins. Co. v. Ison, 519 S.W.2d 778 (Tenn.1975), have not been satisfied by the supplementary testimony.

As a general proposition it is true that a workmen’s compensation award is not to be predicated solely upon the mere speculative testimony of medical experts who are unwilling to testify further than to say that it “is possible” or that it “could be” that a causal connection exists between the accident and the compensable injury. Lynch v. La Rue, 198 Tenn. 101, 104, 278 S.W.2d 85, 86 (1955). However, expert medical testimony as to such causation does not require proof to an absolute certainty. Great American Ind. Co. v. Friddell, 198 Tenn. 360, 280 S.W.2d 908 (1955); Lyons v. Holston Defense Corp., 142 P.Supp. 848 (E.D.Tenn.1956). See also 3 Larson’s Workmen’s Compensation Law, § 79.51 (1976). Quite often, by its very nature, medical expert testimony is somewhat speculative. Patterson Transfer Co. v. Lewis, 195 Tenn. 474, 260 S.W.2d 182 (1953).

Speculative expert medical testimony may, nonetheless, still have probative value where there is “other evidence from which the trial judge may reasonably infer that the injury did result from the accident that the experts say ‘could be’ the cause of the injury.” Lynch, supra, 198 Tenn. at 104, 278 S.W.2d at 86. In Patterson Transfer Co., supra, this Court addressed a similar argument that the medical expert testimony was merely speculative and not conclusive as to causation, and concluded that:

[w]e are not called on to draw a line between expert ‘speculation’ and expert ‘opinion’ since the acceptance of the testimony and the credibility of witnesses are foreclosed by the decision of the trial judge. 195 Tenn. at 476, 260 S.W.2d at 183.

As we view the evidence, Dr. Swann’s supplementary deposition is sufficient to justify the trial court’s determination that the appellee’s lung disease was caused by his dusty work environment. The doctor testified that it was “most probable” that Mr. Ison’s lung disease was “related” to his employment as a jackhammer operator. He further testified that based upon Mr. Ison’s previous medical history, it was his medical opinion that the lung disease “came about after ” the appellee began his employment as a jackhammer operator.

While this supplementary testimony is perhaps susceptible of opposing inferences, it is certainly supportive of the trial court’s conclusion that it was “sufficient to supply the deficiencies in proof for which the case was remanded.”

Under such circumstances this Court will not disturb the trial court’s compensation award. Hartwell Motor Co., Inc., v. Hickerson, 160 Tenn. 513, 26 S.W.2d 153 (1930).

The decree of the trial court is hereby affirmed.

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

      . See American Ins. Co. v. Ison, 519 S.W.2d 778 (Tenn.1975).

      . The trial court also awarded compensation benefits for the appellee’s broken rib and collapsed lung sustained during the work-related accident. The appellant, insurance carrier for the employer, admitted the appellee’s accidental injury and does not challenge the portion of the compensation award directly attributable thereto.

      . The parties, in addition, agreed by stipulation that “some silica particles were present in the air in which the plaintiff worked as a result of his drilling rock as a jackhammer operator.”


source: Caselaw Access Project

license: Public Domain

text:
    Larry Ronald LONES, Appellant, v. BLOUNT COUNTY BEER BOARD, Appellee.
    Supreme Court of Tennessee.
    June 1, 1976.

      Perry P. Paine, Jr., Pelknor, Paine, BeLo-zier & Cunningham, Maryville, for appellant.
    David T. Black, Kizer & Black, Maryville, for appellee.
   OPINION

HENRY, Justice.

This is an appeal from a judgment of the Law and Equity Court of Blount County denying appellant’s application for a permit to engage in the retail sale of beer.

I.

The Blount County Beer Board declined to grant a permit for the sale of beer at an establishment known as Gateway Restaurant. Pursuant to that denial the applicant, Larry Ronald Lones, filed his petition for the writ of certiorari. The evidence adduced before the Beer Board is not contained in the record; however, this is of no consequence since the matter was heard de novo and, therefore, was tried as if it originated in the Law and Equity Court.

At the conclusion of the hearing, the trial judge ordered the issuance of a “license” (presumably he meant permit), subject to conditions and restrictions against sales to intoxicated persons, and permitting intoxicated persons to enter upon the premises. The permit was subject to automatic revocation if any breach of the peace should occur within the first twelve (12) months. To enforce these and other restrictions the court retained the matter on the docket “at least for one year”.

The Court’s opinion was not formalized by decree. A few days following its pronouncement, the applicant’s counsel filed a written motion to review and correct the judgment upon the ground that it was beyond the power and authority of the Court to impose restrictions and conditions upon the granting of a permit. This motion was obviously founded upon the rationale of Flowers v. Benton County Beer Board, 202 Tenn. 56, 302 S.W.2d 335 (1957), wherein it is held that a county beer board in granting or revoking permits for the sale of beer, may not impose any non-statutory restrictions.

The Beer Board moved the Court to review the judgment for the assigned reason that it “has an absolute discretion as to whom licenses and permits are issued.”

The Court, by memorandum opinion, conceded that it could not impose the restrictions and conditions upon the holders of beer permits.

In the same memorandum opinion, the Court sustained the motion of the beer board holding as follows:

The Court is further of the opinion that under the authorities presented, namely State v. Pollard, 22 S.W.2d 74 [189 Tenn. 86, 222 S.W.2d 374] and Young v. Warren County Beer Board, 195 Tenn. 211 [258 S.W.2d 768], that the beer board or county licensing authority has the right to refuse a beer permit even when the applicant has met the requirements of the law. This Court, therefore, is not going to substitute its judgment for that of the Beer Board unless it appears, by a preponderance of the evidence, that the Beer Board has acted arbitrarily or capriciously in its denial of a permit to sell beer. The applicant, in this instance, has failed to carry the burden of proof that the Beer Board acted arbitrarily or capriciously and therefore, this Court will not disturb the Beer Board’s decision in this instance. .

Three days after the filing of this memorandum opinion Lones moved for reconsideration, pointing out that the 1961 amendment to § 57-209, T.C.A. requires a trial de novo, and that under that amendment “the cause is to be tried as if it had originated in such Court and the Trial Judge is required to make an independent judgment of the merits substituting his judgment for that of the beer board”. Citing, Cantrell v. DeKalb County Beer Board, 213 Tenn. 568, 376 S.W.2d 480 (1964).

Apropos the trial court’s finding that a county beer board has the right to refuse a beer permit even when the applicant has met the requirements of the law, counsel for the applicant again cited Cantrell, supra, and particularly the following provision:

An applicant seeking a license or permit to sell beer in a county is required to establish, by proof, his application complies with certain conditions and provisions set out in Section 57-205, T.C.A. This statute now requires, if the conditions and provisions therein be met, a license or permit “shall” be issued: which leaves the judgment to be made on the issue of whether or not an applicant, under the proof, has met all the said conditions and provisions. 213 Tenn. at 572-73, 376 S.W.2d at 482.

The Beer Board answered, taking issue with the applicant’s position and, in addition, filed a written motion asking the Court to consider newly discovered evidence consisting of a restriction in the chain of title to the property applicant proposed to lease, prohibiting the sale of intoxicating beverages upon the premises.

Pursuant to these pleadings the trial judge handed down another opinion, recognizing the legal infirmities in his prior opinion and finding the facts as follows:

The establishment in question has, in the past, been the scene of many altercations and breaches of the peace. That while the complainant worked in this establishment, there was similar trouble there. That there seems to be a concentration of beer taverns and package stores along Highway 73 in the vicinity of this establishment in question. That the lessee of this place of business surrendered his license because of one or more serious incidents (the complainant worked for the former operator as a bartender). That due to the past history of serious trouble occurring at this place of business, both before and while the complainant worked there, and further, due to a concentration of taverns and package stores on Highway 73, and for the further reason that there are restrictive covenants in the deed, from which the present owner obtained title to the property, prohibiting the sale of alcoholic beverages, this Court hereby denies complainant a license to sell beer on the premises in question.

As a result of this finding and the assignments made in this Court, this controversy distills down to three basic issues, viz.

1. Does the reputation or character of the place, premises or physical facilities which an applicant proposes to use in connection with the retail sale of beer have any bearing upon his entitlement to a permit?
2. Does the fact that there is a concentration of retail beer outlets in the vicinity of the proposed location have any bearing?
3. Does the fact that there are restrictive covenants prohibiting the sale of beer on the proposed location have any bearing?

II.

We point out that appeals to this Court in cases involving beer permits are accompanied by a presumption of the correctness of the trial court, unless the evidence preponderates against it, and such judgment may be overturned only by a preponderance of the evidence. Adams v. Monroe Co. Qtry. Ct., 214 Tenn. 270, 379 S.W.2d 769 (1964). We have reviewed the record under this standard.

In the recent case of Howard v. Willocks, 525 S.W.2d 132 (Tenn.1975), we pointed out that under the 1961 amendment to § 57-205, T.C.A. “the Legislature mandated that an applicant for a beer permit, who complies with all the legal requirements, shall be entitled to have such license or permit issued to him,” and that:

[t]his amendment operates to leave the only issue in cases involving the denial of a beer permit as being “whether or not an applicant, under the proof, has met all the said conditions and provisions”. 525 S.W.2d at 136.

There are five basic requirements of § 57-205, T.C.A. The third of these reads as follows:

[TJhat no such beverages will be sold except at places where such sale will not cause congestion of traffic or interference with schools, churches, or other places of public gathering, or otherwise interfere with public health, safety and morals; the county court having the right to forbid such storage, sale or manufacture at places within two thousand (2,000) feet of such places of public gathering in its discretion. (Emphasis supplied).

The Beer Board insists before this Court that the issuance of a permit at this particular location will interfere with public health, safety and morals; otherwise, there is no insistence of any violation of, or failure to qualify under, this or any other portion of § 57-205, T.C.A.

It should be noted at the very outset that this applicant stands in this record as a thirty-one year old citizen of good moral character. There is not the slightest insistence to the contrary and there is affirmative proof to that effect. It should further be noted that the Gateway Restaurant has not enjoyed an unblemished reputation and the record shows that it has been the scene of various acts of lawless conduct, particularly during January and the early part of February of 1975.

The applicant was an employee of the owner of Gateway Restaurant either from “January 1975 to date” according to the application which was dated 5 February 1975, or from 3 February 1975 to 13 February 1975. The record will support either of the two periods. Taking the period to be the entire month of January through February 13, 1975, the applicant was employed there a maximum total of forty-four days. However, the majority of the proof would indicate a lesser period. Irrespective of the period of his employment, there is not a scintilla of proof to indicate that he was anything but a mere employee. There is no proof from which it could be inferred that he occupied any managerial capacity or was in any way or manner, responsible for the operation of the establishment. There is proof, as aforesaid, of acts of lawless conduct — primarily involving intoxication and drunken driving — although this proof is sparse and sketchy. None of the testifying witnesses places him at the scene at the time of any of these occurrences.

Assuming, arguendo, that this place established a bad reputation in a period of some six weeks, we find nothing in the record to associate the applicant with that reputation. We find it difficult to charge a building, which incidentally was vacant at the time of the trial, with having a bad reputation or to fault a physical facility for the conduct or misconduct of prior owners and operators. Persons may have bad reputations and may give a building that imprinter, but a building per se cannot have a reputation existing over, beyond and apart from those having it in custody and under occupancy.

We, therefore, hold that the evidence preponderates against the finding of the trial court with respect to the reputation, character or activities in and around the building being any impediment to the issuance of a permit.

We find the insistence that the permit should not have issued because of’ a concentration of beer taverns and package stores in the vicinity to be equally without merit. There is not the slightest suggestion that this particular outlet will cause congestion of traffic or create any other condition not already in existence. We think it significant that the trial judge, in his initial opinion, rendered immediately following the close of the hearing, did not impose any condition or restriction relating to traffic congestion or attributable in any sense to the proximity of any other retail beer establishments. We find nothing in the statutory criteria which would make the existence of other outlets a controlling or even a permissible consideration, and most assuredly, there is nothing in the evidence which would warrant such a conclusion. In Ewin v. Richardson, 217 Tenn. 534, 399 S.W.2d 318 (1966), the Court made this apt observation:

The courts are without authority to determine if the sale of beer, in general, is harmful or immoral. This is a matter for the General Assembly. The courts do have authority to determine, from evidence in the record, if a particular permit would interfere with public health, safety and morals. (Emphasis supplied). 217 Tenn. at 539-40, 399 S.W.2d at 320.

We find no evidence in this record indicating that this particular permit would interfere with public health, safety and morals, nor do we find any evidence of record indicating any injurious consequences that would flow from the issuance of this beer permit in a locality where other outlets are located and in a building which has for many years been used as a beer establishment. If the beer permittee does not abide the law, § 57-209, T.C.A. provides an ample remedy.

We are not impressed with the insistence made with respect to the restrictions in the chain of title to the property constituting the proposed location. Title deficiencies are - not a legitimate concern of local beer boards. If this applicant is willing to lease premises knowing that there is a restrictive covenant precluding the sale of alcoholic beverages, then this is a matter that addresses itself solely to his judgment and discretion and as to which the Beer Board has no concern.

The matter of these restrictions was not considered by the beer board nor was it considered by the Court of Law and Equity on the main trial, but was raised by motion after the hearing had been concluded. It is fundamental to our law “that a party cannot raise a new issue, or present a new line of proof, on motion for a new trial that was not within the scope of the pleadings and was not presented to the court at the trial of the case.” Serv-U-Mart, Inc. v. Sullivan County, 527 S.W.2d 121, 124 (Tenn.1975).

The judgment of the trial court is reversed and this cause is remanded to the Law and Equity Court of Blount County for the entry of an order directing the Blount County Beer Board to issue forthwith a permit to Larry Ronald Lones, authorizing and permitting the sale of beer in accordance with his application.

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


author: FONES, Justice.

text:
    Eugene GRAY, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    June 1, 1976.

      Walker Gwinn, Asst. Public Defender, Memphis, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, for respondent.
   OPINION

FONES, Justice.

We granted certiorari in this cause to consider criteria to be utilized by the trial courts of this State when sentencing defendants convicted of multiple offenses to consecutive sentences.

On November 19, 1974, petitioner was convicted on two (2) counts of armed robbery committed against an employee and a customer of the Jet Food Store in Memphis. Both of the crimes were committed at the same time and place. The trial judge sentenced petitioner to serve ten (10) years in each case with the sentences to run consecutively. He gave no reasons for the consecutive sentencing, and nothing appears in the record to indicate the rationale for such sentencing.

T.C.A. § 40-2711 provides as follows:

“When any person has been convicted of two (2) or more offenses, judgment shall be rendered on each conviction after the first, providing that the terms of imprisonment to which such person is sentenced shall run concurrently or cumulatively in the discretion of the trial judge; provided, that the exercise of the discretion of the trial judge shall be reviewable by the Supreme Court on appeal.”

Thus, the trial judge has the discretion to determine whether to sentence an individual to concurrent or consecutive sentences, and that decision is reviewable by the appellate courts of this State. There have been, however, no guidelines set out for the trial judge to utilize in exercising his discretion; and there has been no way for this Court to determine if there has been an abuse of discretion, which we are required to review on appeal. As it is mandatory that we review the action of trial judges in determining whether to sentence consecutively or not, by this opinion we will establish objective criteria which will aid the trial judges in sentencing procedures, and which will enable this Court and the Court of Criminal Appeals to review the exercise of discretion by those judges pursuant to T.C.A. § 40-2711.

We reject petitioner’s argument that in determining whether to sentence a defendant to consecutive sentences, the trial judge is required to take into consideration the fact that all of the offenses arose out of one single criminal episode or were inspired by the same general intent and minutely limited in both time and space. See the Model Sentencing Act § 22, and N.Y. Penal Law, § 70.25(2).

Rather than engulf the courts of this State in the tangled labyrinth of the single criminal episode concept, which we feel is irrelevant to a determination of whether to impose consecutive sentencing, we view the situation as demanding an approach which will best protect the interests of society. Essentially, a consecutive sentence should be imposed only after a finding by the trial judge that confinement for such a term is necessary in order to protect the public from further criminal conduct by the defendant.

Types of offenders for which consecutive sentencing should be reserved may be classified as follows: (1) the persistent offender, defined as one who has previously been convicted of two felonies or of one felony and two misdemeanors committed at different times when he was over eighteen (18) years of age; (2) the professional criminal, one who has knowingly devoted himself to criminal acts as a major source of livelihood or who has substantial income or resources not shown to be derived from a source other than criminal activity; (3) the multiple offender, one whose record of criminal activity is extensive; (4) the dangerous mentally abnormal person, so declared by a competent psychiatrist who concludes as a result of a presentence investigation that the defendant’s criminal conduct has been characterized by a pattern of repetitive or compulsive behavior or by persistent aggressive behavior with heedless indifference to consequences; and (5) the dangerous offender, hereinafter defined.

The prior record of the persistent offender will indicate that he is one not likely to be rehabilitated and should be incarcerated under consecutive sentences for the protection of the public. The same may be said for the professional criminal. The prior record of the multiple offender may have been good, but the crimes for which he has been convicted indicate criminal activity so extensive and continuing for such a period of time as to warrant consecutive sentencing. See Sentencing Alternatives and Procedures, § 3.4, Comment C; Model Penal Code, § 7.03. The object is to use consecutive sentencing, where appropriate, to protect society from those who are unwilling to lead a productive life and resort to criminal activity in furtherance of their anti-societal lifestyle.

A defendant may be classified as a dangerous offender if the crimes for which he is convicted indicate that he has little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high. This does not mean that all defendants convicted of several counts of a dangerous offense, such as armed robbery, should be consecutively sentenced. Even though armed robbery is a dangerous offense, there are increased penalties for that crime. The decision to impose consecutive sentences when crimes inherently dangerous are involved should be based upon the presence of aggravating circumstances and not merely on the fact that two or more dangerous crimes were committed. However, this does not preclude the trial court from imposing consecutive sentencing for the commission of dangerous offenses where no aggravating circumstances are present if evidence indicates that the defendant should be sentenced under one of the other classifications.

In the case at bar, the trial judge ordered petitioner’s sentences to run consecutively; however, there is nothing in the record to indicate the factors he considered in exercising his discretion. The case is remanded to the Criminal Court of Shelby County with instructions to the trial judge to include in the record those factors which he considered in ordering petitioner’s sentences to be served consecutively.

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

      . See Sentencing Alternatives and Procedures, § 3.4(b)(IV), American Bar Association Project on Standards for Criminal Justice (1968).

      . The foregoing definitions are consistent with those of the Model Penal Code, § 7.03.


author: HARBISON, Justice. BROCK, Justice

text:
    HENRY COUNTY BOARD OF EDUCATION et al., Petitioners, v. Lorraine R. BURTON and Clarence W. Burton, Respondents.
    Supreme Court of Tennessee.
    June 1, 1976.
    Richard L. Dunlap, Dunlap, Dunlap & Hessing, Paris, for petitioners.
    Marvin P. Morton, Jr., Julian P. Guinn, Paris, for respondents.
   OPINION

HARBISON, Justice.

This case presents the question of the proper form of verdict to be received when two or more plaintiffs have joined in a single action pursuant to Rule 20.01 of the Tennessee Rules of Civil Procedure.

In this case a single complaint was filed on behalf of Clarence W. Burton and wife, Lorraine R. Burton, seeking damages for personal injuries from the named defendants. The complaint alleged that the plaintiffs sustained injuries in an automobile accident, and a separate judgment was demanded on behalf of each plaintiff.

At the conclusion of the trial of the case, a directed verdict was entered in favor of the plaintiffs on the question of liability, so that the only issues presented to the jury pertained to damages.

In his instructions to the jury, the trial judge at several points told the jurors that they could return separate verdicts for each of the plaintiffs, or that they could return a single verdict for both. No exceptions were taken to these instructions, and, after deliberation, the jury returned a single verdict in the amount of $25,000.00, for both plaintiffs, with no allocation or apportionment of any sort.

On motion for a new trial, among other assignments of error, plaintiffs alleged that it was improper for the trial court to permit the jury to return a single verdict where there were multiple plaintiffs and where separate judgments had been demanded for each. The trial court denied relief. The Court of Appeals reversed and, in a divided decision, held that the procedure followed in the trial court was improper. It ordered a new trial as to damages.

Because of the importance of the question and because of certain comments made by the Court of Appeals concerning Rule 51 of the Tennessee Rules of Civil Procedure, we granted certiorari to give further consideration to the matter.

While the Rules of Civil Procedure permit the joinder of a number of plaintiffs in a single action, there is nothing in the Rules which indicates that anything other than separate verdicts should be returned, particularly in personal injury actions. Rule 20.-01 which permits joinder of plaintiffs, expressly states:

“Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.”

Rule 20.01 is no way changed or modified the provisions of T.C.A. § 25-106, dealing expressly with judgments, as follows:

“Judgments may be given for or against one or more of several plaintiffs, or for or against one or more of several defendants. In such case, the verdict shall be as the right may appear, and shall state separately any amount allowed to or against any of the parties.”

All members of the Court of Appeals concluded, correctly in our opinion, that the trial court was in error in instructing the jury that they could return a single verdict for both of the plaintiffs. The dissenting member, however, felt that the matter was controlled by State ex rel. Coffelt v. Hartford Accident & Indemnity Company, 44 Tenn.App. 405, 314 S.W.2d 161 (1958), and that the respondents (plaintiffs below) had waived the issue of an improper verdict by not objecting to the joint verdict before judgment had been entered. The dissenting member of the Court of Appeals cited T.C.A. § 20-1509, which had also been cited in the Coffelt case.

That statute provides:

“Any defect in entering a verdict where there are different issues, or the verdict is not responsive to the issues, shall be objected to before judgment is entered, or the objection will be considered as waived.”

The problem in the present case did not arise simply with the return of the verdict itself, because, as previously stated, the verdict of the jury was responsive to and consistent with the instructions given by the trial judge. They had been informed several times that in their discretion they could return two separate verdicts or a joint verdict. Their action in returning a joint verdict was, therefore, not strictly a “defect” of their creation, nor was their verdict in any manner inconsistent. See Helm v. Wells, 488 S.W.2d 733 (Tenn.Ct.App.1972).

At this point, probably some examination of the Coffelt case is indicated, because it did indeed present a somewhat similar factual situation.

In that case damages for personal injuries to a minor were sought, together with damages for his mother. A single action had been instituted, seeking both compensatory and punitive damages, with two counts, the first count being for the benefit of the son and the second for the mother. At the conclusion of the evidence the trial judge instructed the jury, but the opinion of the Court of Appeals does not refer to the nature of the instructions given. Apparently the jury were confused, however, and they returned into court where a colloquy ensued between the foreman of the jury and the trial judge. During the course of this colloquy the trial judge told the jurors that he expected them to return a separate verdict for compensatory damages from any amount awarded as punitive damages. The opinion then states that the colloquy continued as follows:

“ ‘The Foreman: The confusion that we were up against was that first one item, in other words, it would be one item covering both him and her?
‘The Court: Yes, it is all together.
‘The Foreman: Thank you. Because she is the one that sues.’ ” 44 Tenn.App. at 412, 314 S.W.2d at 164.

Following this discussion the jury returned a verdict against the defendants in the amount of $500 compensatory damages and $500 punitive damages. This verdict was in favor of the mother only, and judgment apparently was entered accordingly. The mother assigned error as to the form of the verdict, since there was no allocation of the damages awarded to her as distinguished from damages for her son.

It was in this context that the Court of Appeals made the following statement:

“Plaintiff and her learned counsel were present and heard this colloquy and made no request that the jury return separate verdicts, one for the son’s damages and the other for the mother’s damages. Also when the jury brought in one verdict for plaintiff against both defendants for $500 compensatory and $500 punitive damages, neither Mrs. Coffelt nor Thurman Coffelt objected to the form of the verdict. Having failed to make such objection before judgment was entered thereupon, the objection was waived. T.C.A. § 20-1509. So we think Mrs. Cof-felt is in no position to complain now as to the form of the judgment.” 44 Tenn. App. at 412, 314 S.W.2d at 164.

The Court pointed out that the son, Thurman Coffelt, had not appealed, so that any error in the verdict insofar as he was concerned simply had not been preserved for review.

While similar, the factual situation in the present case varies to some extent. Here, the award was to both plaintiffs, instead of just one. Both plaintiffs assigned error in the form of the verdict in their motion for a new trial and appealed to the Court of Appeals. In Coffelt, the one plaintiff who obtained the verdict was held not to be prejudiced, and the other plaintiff did not appeal. But while the facts are not identical, the question of waiver by the plaintiffs is present in the instant case as it was in Coffelt.

The majority of the Court of Appeals felt that the Coffelt ease could and should be distinguished because of the adoption of Rule 51.02 of the Tennessee Rules of Civil Procedure. We cannot agree with that conclusion.

Rule 51.01 deals with the matter of written requests for jury instructions. It expressly provides that the trial judge shall inform counsel of his proposed actions upon the requests before final arguments are made to the jury. The rule then provides that the charge of the court shall follow these final arguments.

Rule 51.02 is as follows:

“After the judge has instructed the jury, the parties shall be given opportunity to object, out of hearing of the jury, to the content of an instruction given or to failure to give a requested instruction, but failure to make objection shall not prejudice the right of a party to assign the basis of the objection as error in support of a motion for a new trial.”

The record in the present case does not indicate whether the trial judge gave counsel an opportunity to object to his instructions after they had been given. It does reveal that counsel for the plaintiffs filed a number of special requests, which will be discussed later.

The second portion of Rule 51.02, to the effect that failure to object does not constitute waiver of errors in the instructions, is entirely consistent with and in fact preserves the pre-existing practice in this state, prior to the adoption of the Rules of Civil Procedure. It has long been the rule in this state that positive error in jury instructions could be assigned for the first time on motion for a new trial, regardless of whether objection had been made or a special request submitted. See McClard v. Reid, 190 Tenn. 337, 343, 229 S.W.2d 505 (1950); Caruthers History of a Lawsuit § 407 (8th ed., Gilreath, 1963). The comparable federal rule of civil procedure is to the contrary, but the Advisory Committee, in its comments on the Tennessee Rules, stated that it was deliberately not recommending adoption of the federal rule.

The Court of Appeals, therefore, was in error, in our opinion, in undertaking to distinguish the Coffelt case on the basis of the adoption of Rule 51.02. Some changes in previous practice had been incorporated in Rule 51.01, with respect to the appropriate time for tendering special requests for jury instructions, but Rule 51.02 neither contemplated nor accomplished any change in previous practice with respect to assignments made on a motion for new trial.

This is not to suggest that the doctrine of waiver has no application in this and in other areas of trial practice. Counsel are expected to assist the trial court at all stages of litigation. Both the rules of waiver and considerations of harmless error, announced in cases decided prior to the adoption of the Rules of Civil Procedure, still obtain. We approve the following statement by this Court made many years ago:

“. . . counsel engaged in a trial should aid the court by calling his attention to an abstraction or an inadvertence in delivering his instructions to the jury, and, where they fail to do so, this court will not reverse unless convinced that the party complaining has [been] prejudiced by such instruction, or that justice is about to miscarry.” Carney v. Cook, 158 Tenn. 333, 340, 13 S.W.2d 322, 325 (1929).

We consider that the error in the present case was a very serious one, because it is obvious that many highly complex problems could be created by failure to allocate an award of damages among separate personal injury claimants. Indeed, in any case where there are many facets or aspects to a claim for damages, failure to obtain a proper allocation and itemization by the jury can result in great difficulty. See Brewer v. Occidental Fire and Casualty Company, 219 Tenn. 584, 412 S.W.2d 210 (1967); Maryland Casualty Company v. Gordon, 52 Tenn.App. 1, 371 S.W.2d 460 (1963). These difficulties can be enhanced and magnified when there are separate plaintiffs, seeking separate awards of damages, and there is an attempt to return a single verdict in favor of all parties.

Such difficulties do not arise in all cases, however, and there obviously may be situations in which the principle of waiver or of invited error would cure any defects. For example, in the case of Gilson v. Gillia, 45 Tenn.App. 193, 321 S.W.2d 855 (1958), suit was brought against two landlords by three different complainants, consisting of two separate corporations and the principal stockholder therein. A single verdict for property damage was rendered in favor of all of the complaints. No request had been made by the defendants to have either the jury or the trial court allocate the award among the various claimants. Under these circumstances the Court of Appeals held that the defendants had waived the issue.

The problem in the present case, as we see it, is one of waiver or consent, because we believe that error otherwise reversible was committed by the trial judge in the form of verdict which he permitted to be returned. A new trial should properly be awarded unless the plaintiffs acquiesced in the action of the trial judge and, in effect, consented thereto.

Our examination of the record convinces us that this did in fact occur. As previously stated, the only question submitted to the jury concerned the amount of recovery to be allowed to the plaintiffs. The instructions given were brief. The entire charge centered upon damages and the verdict to be returned. Counsel for the plaintiffs submitted a total of five special requests. Each of these refers to a single verdict for both plaintiffs. Each of them was denied, but illustrative of the wording of the special requests is the second one, which is as follows:

“PLAINTIFFS’ SPECIAL REQUEST TO CHARGE NO.-
“Gentlemen of the jury, I do further charge you that if you should find the plaintiffs are entitled to a verdict, you will award them a sum which will compensate them reasonably for (1) any pain, suffering and mental anguish already suffered by them and proximately resulting from the injuries in question; and (2) for any pain, suffering and mental anguish, which you find from the evidence in the case that they are reasonably certain to suffer in the future from the same cause.”

Each of the other special requests is similarly worded. The first one is lengthy, but it refers to one verdict to be awarded to the plaintiffs, and at no point is there any indication in it or in any of the other special requests that counsel was requesting an individual or separate award to each of the plaintiffs.

It is apparent from the phraseology of the special requests submitted that one award, or a total lump sum, was being sought by counsel for the plaintiffs. While the trial judge did not grant verbatim any of the special requests, his general instructions as to damages did incorporate many of the principles contained in them.

The thrust of the motion for a new trial filed on behalf of the plaintiffs, and their principal assignment of error in the Court of Appeals, concerned the alleged inadequacy of the verdict, and only secondarily its form.

Accordingly, although we believe that error was committed by the trial court, and we do not approve of the practice which was followed in this case of awarding a single amount to separate personal injury claimants, we believe that the plaintiffs in the present case did invite and acquiesce in the procedure which was followed, and that they are not now in position to complain thereof.

In view of the disposition which was made of the case by the majority of the Court of Appeals, all assignments of error of the plaintiffs except as to the form of the verdict were pretermitted. We therefore remand the case to the Court of Appeals for consideration of the other assignments of error made on behalf of the plaintiffs, which were not considered by that court. Costs incident to the petition for certiorari will be taxed to the respondents. All other costs will be adjudged by the Court of Appeals.

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

BROCK, J., dissents.

BROCK, Justice

(dissenting).

I fully agree with the conclusion of the Court that the trial judge committed error in his instructions to the jury that they could render a joint verdict for both plaintiffs and in his acceptance of such joint verdict, but I must dissent from its further holding that this error could be and was waived by the plaintiffs. In my view, the error was so fundamental that this Court should hold that it could not be the subject of waiver. I would hold that the decisions in State ex rel. Coffelt v. Hartford Accident & Indemnity Co., 44 Tenn.App. 405, 314 S.W.2d 161 (1958) and Gilson v. Gillia, 45 Tenn.App. 193, 321 S.W.2d 855 (1959) should be restricted to the peculiar facts there involved. Furthermore, the Court’s reliance upon T.C.A. § 20-1509 is, I believe, misplaced; that statute is contained in a chapter of the code styled “Formal Defects In Proceedings” and originated in an Act of the General Assembly dealing with a number of purely formal, as distinguished from fundamental, errors in procedure. See Chapter 152, Public Acts of 1851-2. As I construe the statute, it presupposes a valid verdict and provides only for waiver of formal defects in recording such verdict. But, such is not the case here, where we have two separate, distinct civil actions of two individuals suing for damages for personal injuries suffered by each and in which each plaintiff demanded and is entitled to an individual verdict. “In such case, the verdict shall be as the right may appear, and shall state separately any amount allowed to or against any of the parties.” (Emphasis added.) T.C.A. § 25-106. Yet, the jury, as expressly authorized by the trial judge, has not rendered a verdict in either of the two cases; there is no verdict for Lorraine R. Burton or for Clarence W. Burton. Instead, the jury has purported to render a joint verdict for the plaintiffs as if they jointly owned and prosecuted a single cause of action. In my opinion, the trial judge has a non-delegable, non-waivable duty to keep the jury together until they render separate verdicts in the case of each plaintiff when, as here, several distinct civil actions are tried together. Nunamaker v. New Alexandria Bus Co., 371 Pa. 28, 88 A.2d 697 (1952); Dauenhauer v. Sullivan, 215 Cal.App.2d 231, 30 Cal.Rptr. 71 (1963). Failure to object to an invalid verdict will not preclude a party from subsequently attacking it. McInturff v. White et al., supra; Measeck v. Noble, 9 A.D.2d 19, 189 N.Y.S.2d 748 (1959); Baxter v. Tankersley, 416 S.W.2d 737 (Ky.1967); Shultz v. Monterey, 232 Or. 421, 375 P.2d 829 (1962); Saucier v. Walker, 203 So.2d 299 (Miss.1967); Helm v. Wells, Tenn.Ct.App., 488 S.W.2d 733 (1972). Accordingly, I would hold that the error of the trial judge in his instructions to the jury and in his acceptance of the purported verdict of the jury could not be waived. I would affirm the judgment of the Court of Appeals that these cases be remanded to the trial court for a new trial.

       The request refers to “a verdict” for the plaintiffs and throughout references are made to the loss of time by the plaintiffs, their earnings, their health and their future earning capacity, all indicating a joint consideration of the claims and, seemingly, a lump sum award.


author: HARBISON, Justice.

text:
    CAVALIER INSURANCE CORPORATION, Appellant, v. Cathy V. OSMENT, Appellee.
    Supreme Court of Tennessee.
    June 1, 1976.

      John T. Wilkinson, Jr., Memphis, for appellant.
    Leonard V. Hughes, Jr., Hoffman, Hughes, McWhorter & Wener, P. C., Memphis, for appellee.
   OPINION

HARBISON, Justice.

The issue presented in this case is whether an insured may demand arbitration with his uninsured motorist insurance carrier, when the insured has been unable, after diligent efforts, to obtain personal service of process upon the uninsured motorist.

The essential facts of the case are stipulated. Appellee, Cathy V. Osment, was injured in an automobile accident in Shelby County on February 21,1971. Her automobile was struck by a vehicle being operated by Patricia Taylor McCullar, a nonresident of Tennessee.

Appellant, Cavalier Insurance Corporation, was the liability insurance carrier for appellee. Its policy contained standard uninsured motorist coverage, as provided by T.C.A. § 56-1148 et seq. Approximately one week after the accident, appellee notified appellant of the collision. At that time, however, it was apparently believed by appellee and her counsel that either Patricia Taylor McCullar, the driver of the other vehicle, or the owner of that vehicle, Doris Hall, had liability insurance coverage through Government Employees Insurance Company. This information later proved to be inaccurate, and it is now stipulated that there was no liability insurance coverage on the vehicle or the operator thereof involved in the collision with appellee.

Approximately eleven months after the accident, on January 19,1972, appellee filed suit against Patricia Taylor McCullar in the Circuit Court of Shelby County. A copy of the complaint and summons in the action were served upon appellant, pursuant to T.C.A. § 56-1153, making it apparent that appellee intended to rely upon the uninsured motorist coverage provisions of her policy. Service of process upon the uninsured motorist, Mrs. McCullar, was attempted through the Secretary of State, at an address in Mississippi which was the address of her mother. The attempted service was ineffectual, however, and the Secretary of State so reported, indicating that the addressee had moved, leaving no forwarding address.

The Circuit Court action lay dormant for several months. On September 18, 1972 appellee made demand upon appellant for settlement of her claim for personal injuries and property damage, since she had been unable to effect service of process or obtain any recovery through her circuit court action. No written reply was made to this demand.

One week later, on September 25, 1972, the insurance carrier, through its attorney, filed a motion to dismiss the circuit court action for failure of appellee to obtain service of process upon the uninsured motorist, and for failure to obtain issuance of new process pursuant to Rule 3 of the Tennessee Rules of Civil Procedure. On October 6, 1972 counsel for appellee entered an order of nonsuit in that action. They promptly attempted to renew the action, and thus keep it alive pursuant to Rule 3, however, by filing a new suit on October 10, 1972. Again appellant, as the uninsured motorist carrier, was served with a copy of the process and complaint in this second action, but attempts to serve process upon the motorist, Mrs. McCullar, again proved unsuccessful. There is filed in the record an affidavit of counsel for appellee that they had employed an investigator and had made extensive efforts to find and serve Mrs. McCullar with process, all without avail. It is stipulated in the record that counsel for appellee, Mrs. Osment, “have made diligent effort to ascertain the whereabouts of Patricia Taylor McCullar in order that she might be duly served with process, but they have been unsuccessful.”

Having been unable to obtain service of process upon the uninsured motorist, and having had no response to their demand upon the uninsured motorist carrier for settlement of their claim, counsel for appellee, on January 13, 1973, undertook to institute arbitration proceedings by filing a demand for arbitration with the American Arbitration Association, Inc. An arbitrator was appointed by the association, and he scheduled a hearing on the claim. Appellant, however, denied that the arbitration clause of the insurance policy was enforceable, and at all times refused to enter into the arbitration proceedings. Ultimately it filed this action in the form of a declaratory judgment suit, seeking to enjoin the arbitration proceedings and to declare that appellee had no right to seek relief under the arbitration provisions of the policy.

Appellee filed an answer and counterclaim, asserting that she had no other viable or practical remedy than arbitration. In the alternative, she sought damages against the insurer for breach of its contract.

The chancellor filed an opinion to the effect that appellee was entitled to enforce the arbitration provisions of the insurance policy, upon the authority of Price v. State Farm Mutual Automobile Insurance Co., 486 S.W.2d 721 (Tenn.1972). He further ruled that if the appellant refused to arbitrate the matter, appellee might, by motion, seek a reference to the Clerk and Master to determine damages. He also permitted either party to demand a jury trial if preferred.

Appellant sought and was allowed an interlocutory appeal before any further proceedings were had, pursuant to the provisions of T.C.A. § 27-305. Its basic assignments of error are to the effect that the chancellor erred in not enjoining the arbitration proceedings and that he erred in permitting what, in effect, amounts to a direct action against the uninsured motorist carrier under the counterclaim.

Appellant insists that it has not been shown conclusively that service of process upon the uninsured motorist, Mrs. McCul-lar, can never in fact be obtained. It insists that such personal service of process is necessary in order for the insured, Mrs. Osment, to proceed against her own insurance carrier.

Appellant relies heavily upon the recent decision of this Court in the case of McCall v. Maryland Casualty Co., 516 S.W.2d 353 (Tenn.1974). In that case the Court held that a claimant could not maintain a direct action for damages against his uninsured motorist carrier, and that it would be necessary for the insured to obtain personal service of process upon the uninsured motorist before being entitled to proceed in a circuit court damage suit. The Court noted the inequitable and regrettable situation in which the insured was cast in a case where service of process could not be accomplished. Following the release of that opinion, the General Assembly amended the uninsured motorist statutes so as to provide for a direct action against the insurance carrier in such cases. See T.C.A. § 56-1153 (Supp.1975).

The McCall case, however, did not deal with the subject of arbitration directly, and clearly nothing therein was intended to cut off or defeat any right which the insured might have to seek arbitration. Indeed, in the course of the opinion, the Court stated:

“The insured does have the right to demand arbitration in the manner provided by the policy provisions.” 516 S.W.2d at 355.

The uninsured motorist statutes, since their adoption in 1967, have contained the following provision:

“The uninsured motorist provision shall not require arbitration of any claim arising thereunder nor shall the insured be restricted or prevented in any manner from employing legal counsel or instituting legal proceedings.” T.C.A. § 56-1153.

In the case of Schleif v. Hardware Dealer’s Mutual Fire Insurance Co., 218 Tenn. 489, 404 S.W.2d 490 (1966), a direct action was brought against the insurance carrier by the insured in a hit-and-run case. The case arose before enactment of the statute above cited and involved construction of the policy only. A direct action upon the policy was permitted in hit-and-run cases, and the Court held that the statute of limitations of six years, rather than the one year personal injury statute of limitations, was applicable. In that case neither party had demanded arbitration. The Court noted that in some states the arbitration provisions of uninsured motorist policies were not enforceable, but it stopped short of making such a declaration as to the law of this state. It simply held that under the circumstances of the case, a direct action on the policy itself could be maintained.

In the course of summarizing the provisions of the uninsured motorist statutes in the case of Glover v. Tennessee Farmers Mutual Insurance Company, 225 Tenn. 306, 468 S.W.2d 727 (1971), this Court referred to the arbitration provisions contained in T.C.A. § 56-1153. The Court said:

“This code section invalidates insurance contract provisions for arbitration of uninsured motorist claims, and sets out the course of procedure whereby an insured can reduce an uninsured motorist claim to judgment.” 225 Tenn. at 309, 468 S.W.2d at 728.

The actual holding in the Glover case was that the statutes do not authorize the insured to maintain a direct action for damages against the uninsured motorist carrier, and that such action will not lie unless authorized by a provision of the policy. The language concerning arbitration was, at most, dictum, and it was substantially modified, if not overruled, by the separate opinion, concurred in by all of the members of the Court, in the ease of Price v. State Farm Mutual Automobile Insurance Company, 486 S.W.2d 721 (Tenn.1972).

In that case, it was held that the insurance carrier was estopped by its conduct from relying upon the one-year statute of limitations for personal injuries, and that the insured was entitled to demand arbitration. The suit in that case had been instituted by the insurance carrier for a declaratory judgment.

In a separate concurring opinion prepared by Mr. Justice Humphreys, the Court said:

“I am not unmindful of the provision of T.C.A. § 56-1158 respecting arbitration, nor of what was said in Glover v. Tennessee Farmers Mutual Ins. Co., Tenn. [225 Tenn. 306], 468 S.W.2d 727. Glover, however, had nothing to do with arbitration, and, although it took notice of the statute provision in regard thereto, it did not attempt to interpret the statute. So, we are free to do that here. The statute must mean, since it simply provides that uninsured motorist provisions shall not require arbitration, and that the insured shall not be prevented by arbitration provisions from employing counsel and instituting suit, that such an arbitration provision cannot be made a condition precedent to suit. Having in mind that the purpose of this provision of the statute is to prevent the use of arbitration agreement provisions to prevent a suit by the insured under the general statute, there is no reason to hold that the statute prevents the insured from suing for and receiving the benefits he would have received if he had received the arbitration the insurer provided for. In sum, I hold that T.C.A. § 56-1153 does not deny the insured the right to the arbitration the insurer has agreed to afford him, and, when this right is denied by the insurer he may have its equivalent in court; and that as to this, the statute of limitation is six years.” 486 S.W.2d at 725.

We believe that the foregoing is an accurate analysis of the meaning and effect of the arbitration provisions of the statute, T.C.A. § 56-1153. It is clear from the language of the statute that the insured may not be prevented by contract provisions from seeking recovery through the courts, in a damage suit against the uninsured motorist. Where, however, the insured is unable to obtain service of process or otherwise prosecute his action for damages against the uninsured motorist, as in the present case, the insured may invoke the arbitration provisions of the policy.

We recognize that ordinarily provisions in private contracts for the arbitration of future disputes are not enforceable under the general arbitration statutes of this state, T.C.A. § 23-501 et seq. See Meirowsky v. Phipps, 222 Tenn. 112, 432 S.W.2d 885 (1968). It has generally been held that such provisions may not be used to prevent parties from seeking their legal remedies in the courts. Ordinarily, a party may revoke an agreement to arbitrate prior to entering into an actual submission agreement and filing this of record.

It has been noted many times, however, that the uninsured motorist features of liability insurance policies pose unusual and difficult questions, both substantively and proeedurally. In one sense, the insured’s own insurance carrier is placed in the role of a liability carrier for the uninsured motorist. Yet the insured has a direct contract with the insurance carrier for the payment of his damages. The uninsured motorist features are incorporated directly into or are appended to a liability insurance policy covering scheduled motor vehicles belonging to the insured.

It was clearly the intention of the General Assembly to permit the insured to pursue, insofar as possible, his ordinary tort remedy against the uninsured motorist, and at the same time to have the benefit afforded by the “family protection” or uninsured motorist coverage of his own insurance policy, up to its limits. The procedure for doing this was prescribed in some detail in T.C.A. § 56-1153. It was further the intention of the General Assembly not to permit the insurance carrier to cut off or preclude the right of the insured to seek relief through the courts by making arbitration a condition precedent. It was undoubtedly in this context that the statement was made in the Glover case that the statute “invalidates” the arbitration features of the policy-

On the other hand, the policy provisions are prepared by the insurance carriers, and presumably are approved by the Commissioner of Insurance. We see no prejudice or unfairness to the insurance carrier in permitting the insured to invoke arbitration where the insured, in all good conscience and after diligent efforts, is unable, through no fault of his own, to obtain service of process upon the uninsured motorist. Deprived of this legal remedy, the only recourse the insured has is to utilize the arbitration features of the policy.

The policy provision in the present case is as follows:

“If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this Part, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this Part.”

It should be noted that the arbitration clause embraces both the question of whether the uninsured motorist is liable at all to the insured and the amount of damages sustained by the insured. In the present case appellant, the insurance carrier, insists that there is no liability on the part of the uninsured motorist to its insured under the facts of the accident. It accordingly insists that the chancellor was in error in ordering a reference to the Clerk and Master to ascertain damages, when the question of liability has not been established.

As to this, we are in agreement with the insurance carrier. If it does not agree to the arbitration procedures under its contract, we are of the opinion that the question of liability should be ascertained before any reference is executed as to the issue of damages. If the issue of liability is resolved in favor of the insured, then, of course, it will be appropriate to have proof taken on the degree and extent of personal injury and related expenses.

The insurance carrier insists that the chancery court does not have jurisdiction to entertain a tort action for damages. This, of course, is correct, under the provisions of T.C.A. § 16-602. Appellant has, however, itself invoked the jurisdiction of the chancery court over the very insurance contract here involved, in seeking a declaratory judgment and injunctive relief. The chancellor has given appellant an option to comply with the arbitration provisions of its own contract of insurance. Only as an alternative, in the event appellant does not agree, has the chancellor taken steps to give the insured an “equivalent in court”, as stated in the Price case, supra. The counterclaim of the insured, therefore, is not a tort action against the uninsured motorist, but is a claim under the policy of insurance issued by the appellant, an action which clearly lies within the jurisdiction of the chancery court.

We do not find it necessary to depart from the general rules in this state, above referred to, that ordinarily arbitration clauses are not enforceable as to future disputes and that a provision for arbitration may be revoked prior to the filing of record of an actual submission agreement. Because of the special and unusual relationship between the insurer and insured in uninsured motorist cases, however, we are of the opinion that, as indicated in the Price case, supra, it is appropriate to permit enforcement of policy provisions regarding arbitration, at the option of the insured. This result is expressly provided by statute in some jurisdictions, and it is consistent with the Tennessee uninsured motorist statute as interpreted in Price. Of course, in given cases equitable principles such as es-toppel, laches, or waiver could operate to deny the insured recourse to arbitration, despite the six-year statute of limitations otherwise obtaining. In this case, however, we find nothing in the conduct of the insured inconsistent with her demand for arbitration or prejudicial to the rights of the insurance carrier.

The assignments of error are overruled, and the judgment of the chancellor, as modified, is affirmed. The cause is remanded to the chancery court for further proceedings consistent herewith. Costs incident to the appeal will be taxed to appellant.

COOPER, BROCK and HENRY, JJ., concur.

FONES, C. J., not participating.

      . Consistent with the Tennessee statute, however, the policy has an endorsement expressly providing that “the insured shall not be required to arbitrate disputed claims . . under the uninsured motorist coverage (emphasis added). For the use of similar endorsements in other states, see Pretzel, Uninsured Motorists § 41.2 (1972).

      . See discussion generally in Chapter 6, “Arbitration of Uninsured Motorist Claims”, especially §§ 6.7, 6.14, Widiss, A Guide to Uninsured Motorist Coverage (1969).

      . E. g., Louisiana Rev.Stats. § 22:1406(D)(5) (Supp.1976). See Commercial Union Ins. Co. v. Milazzo, 265 So.2d 298 (La.App.1972).


text:
    COMMERCE UNION BANK, Appellant, v. George M. TIDWELL, Commissioner of Revenue, State of Tennessee, Appellee.
    Supreme Court of Tennessee.
    June 14, 1976.
    Alfred E. Abbey, Charles C. Trabue, Jr., William E. Bishop, Trabue, Sturdivant & DeWitt, Nashville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Everett H. Falk, Deputy Atty. Gen., Nashville, for ap-pellee.
    Milton P. Rice, Special Counsel, of Counsel: Robins H. Ledyard, General Counsel, on Amicus Curiae brief for National Life and Acc. Ins. Co.
   OPINION

FONES, Justice.

The sole question presented in this direct appeal is whether computer “software” is tangible personal property and taxable under the State Sales and Use Tax provisions of T.C.A. §§ 67-3001, et seq.

The Chancellor held that the computer software purchased by the plaintiff-appellant did not constitute nontaxable services, but was tangible personal property and subject to taxation. We reverse.

The applicable Code section reads in part as follows:

67-3003. Levy of tax — Rate.—It is declared to be the legislative intent that every person is exercising a taxable privilege who engages in the business of selling tangible personal property at retail in this state, or who uses or consumes in this state any item or article of tangible personal property as defined in this chapter, irrespective of the ownership thereof or any tax immunity which may be enjoyed by the owner thereof, or who is the recipient of any of the things or services taxable under this chapter, or who rents or furnishes any of the things or services taxable under this chapter, or who stores for use or consumption in this state any item or article of tangible personal property as defined in this chapter, or who leases or rents such property, either as lessor or lessee, within the State of Tennessee. (Emphasis added)

Tangible personal property is defined by T.C.A. § 67-3002(1) as “personal property, which may be seen, weighed, measured, felt, or touched, or is in any other manner •perceptible to the senses.”

Pursuant to T.C.A. § 67-3003, the Commissioner of Revenue assessed a tax deficiency against appellant in the amount of $26,336.32, which was paid under protest. In this appeal only the amount of $4,094.54 remains at issue which represents the total tax, penalty, and interest assessed on the sales and leases of computer software.

Basically, there are two types of software programs. The first is an operational program which controls the hardware and actually makes the machine run; it is fundamental and necessary to the functioning of the computer hardware itself. Secondly, there is an applicational program which is a type of program designed to perform specific functions, such as preparation of the employee payroll, preparation of a loan amortization schedule, or any other specific job which the computer is capable of performing. Applicational programs instruct the central processing unit of the computer to perform the fundamental computations, comparisons, and sequential steps required to take incoming information and compute the desired output. All of the programs involved in this lawsuit, except two, are of the applicational type.

Rather than develop all of its own programs, appellant purchases specialized programs from outsiders. This is the general practice in the computer field. It appears that some of these programs are standard in their design and may be modified to fit the peculiar application of the individual user, while others are unique. The modifications may be minor or complex, depending on the program and its application, and may be performed by the vendor or the user, or both.

The information contained in these programs may be introduced into the user’s computer by several different methods. It could be programmed manually by the originator of the program at the location of the user’s computer, working from his own instructions; it could be programmed by a remote programming terminal located miles from the user’s computer, with the input information transmitted by telephone; or, more commonly, the computer could be programmed by punch cards, magnetic tapes or discs, containing the program developed by the vendor. Often, accompanying the computer program, the vendor will provide manuals, services, and consultation designed to instruct the user’s employees in the installation and utilization of the supplied program.

After a program supplied on punch cards has been placed in appellant’s computer, the cards are destroyed. The cards cost about $1.30 per thousand, and approximately 4,000 to 6,000 cards are required for a program. When magnetic tapes are utilized as the transmitting device, they are returned to the vendor after the information contained on them has been stored in appellant’s computer. Costs for the tape is approximately $11.00 for a reel of tape 200 feet in length. The total cost for programs purchased by appellant has ranged from $700 to almost $60,000.

Appellant argues that while the intellectual processes may be embodied in tangible and physical material, such as punch cards and magnetic tapes, the logic or intelligence of the program is an intangible property right; and it is this intangible property right which is acquired when computer software is purchased or leased.

Appellee views the purchase of software as analogous to the purchase of a phonograph record or the purchase or lease of a motion picture film. He argues that this case is governed by Crescent Amusement Co. v. Carson, 187 Tenn. 112, 213 S.W.2d 27 (1948). There, a tax was levied on the rental of motion picture films. This Court rejected appellant’s contention that the rental of the film is merely the extension of a license to use and exhibit a copyrighted production which amounts only to the use of an intangible property right. The Court then went on to discuss the eohesiveness of tangible goods and the thought processes, skill, and labor that go into the production of those goods:

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

The examples given in the Crescent case differ from the situation in the case at bar in that no product is created. What is created and sold here is information, and the magnetic tapes which contain this information are only a method of transmitting these intellectual creations from the originator to the user. It is merely incidental that these intangibles are transmitted by way of a tangible reel of tape that is not even retained by the user.

In Crescent the tax was levied on the rental of a motion picture film. The film is inherently related to the movie; without the film there could have been no movie. Therein lies the crucial difference. Magnetic tapes and cards are not a crucial element of software. The whole of compúter software could be transmitted orally or electronically without any tangible manifestations of transmission. See, Heinzman, Computer Software — Should It Be Treated as Tangible Property For Ad Valorem Tax ? The Journal of Taxation (September, 1972).

It does not appear that appellee has attempted to tax computer programs purchased by appellant which were transmitted to its computers from outside the State by way of telephone lines. That method of transmission, without question, constitutes the purchase of intangible personal property. The principle is the same, only the method of transmitting the information differs.

Appellee maintains that the sale of a phonograph record, which is taxable as tangible personal property, and the sale of a computer program on a reel of magnetic tape are analogous. One who buys a phonograph record intends to obtain possession of a tangible item. Granted, the sound which emanates from the record when it is played is the object of the purchase; but the purchaser has no other viable method of bringing the music of, say, Caruso into his living room. The phonograph record remains in the possession of the purchaser after its purchase, both during periods of use and non-use.

The instant case presents a different situation. A magnetic tape is only one method whereby information may be transmitted from the originator to the computer of the user. That same information may be transmitted from the originator to the user by way of telephone lines, or it may be fed into the user’s computer directly by the originat- or of the program.

When the information is transferred from the tape to the computer, the tape is no longer of any value to the user; and it is not retained in the possession of the user. The information on the tape, unlike the phonograph record, is not complete and ready to be used at the time of its purchase. It must be translated into a language understood by the computer. Once this information has been translated and introduced into the computer and the tapes returned or the punch cards destroyed, what actually remains in the computer is intangible knowledge; this is what was purchased, not the magnetic tapes or the punch cards. District of Columbia v. Universal Computer Associates, Inc., 151 U.S.App.D.C. 30, 465 F.2d 615 (1972). Transfer of tangible personal property under these circumstances is merely incidental to the purchase of the intangible knowledge and information stored on the tapes. See, Washington Times-Herald, Inc. v. District of Columbia, 94 U.S.App.D.C. 154, 213 F.2d 23 (1954). There the newspaper had purchased from an artist the right to reproduce his cartoons. These cartoons were transferred to the newspaper and were physically embodied in mats which were then used to reproduce the cartoons in the newspaper. The Court held that what the newspaper had purchased was the right to reproduce the cartoons, and not the material upon which the cartoons were impressed.

In a closely analogous, Dun & Bradstreet, Inc. v. City of New York, 276 N.Y. 198, 11 N.E.2d 728 (1937), the New York Court of Appeals held that financial informational services rendered to clients of Dun & Bradstreet were nontaxable even though reference books containing financial information were delivered to the subscribers. No separate charge was made for the books, and they could not be obtained without subscribing to the service. Also, in that case, as here, the same service could have been rendered without transferring the reference books, but the cost of the service would have been much higher.

We hold that the sale of computer software does not constitute the sale of tangible personal property for the purposes of T.C.A. §§ 67-3001 et seq.

The decree of the Chancery Court of Davidson County is reversed and a decree will be prepared and entered in this Court awarding judgment to appellant for the stipulated sum. Costs are assessed against the Commissioner.

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

HARBISON, J., not participating.

      . Generally, “hardware” refers to the tangible parts of the computer itself, while “software” refers to information and directions loaded into the machine which dictates different functions for the machine to perform. What triggers these functions are referred to broadly as “programs,” and are often accompanied by magnetic tapes and discs, punch cards, manuals, flow charts, and expert engineering assistance to comprise what is known in the industry as computer software.

      . In 1951 the Legislature changed the result of this case by exempting theaters which pay the 2% privilege tax from operation of the Sales and Use Tax. T.C.A. § 67-3013.


author: DANIEL, Justice.

text:
    Ex parte Robert DUSTMAN, Petitioner.
    No. B-5850.
    Supreme Court of Texas.
    June 9, 1976.
    McGlasson & Cox, Gene McGlasson, Jr., Canyon, for relator.
    Dee D. Miller, Amarillo, for respondent.
   DANIEL, Justice.

This is an original habeas corpus proceeding. Relator, Robert Dustman, has been adjudged in contempt by the 47th District Court of Randall County for failure to make payments for the support of his minor children as required by a divorce judgment entered by that court on November 28, 1972. The contempt decree assessed a fine of one dollar against Dustman and ordered that he be committed to jail until he purges himself of the contempt by paying $4,710 in delinquent child support plus court costs amounting to $22. We order relator discharged.

Under the 1972 divorce decree, Dustman became obligated to pay child support payments of $150 per month. It appears from the record that as of October 31, 1975, only one such monthly payment had been made. Article 1911a, V.A.T.S., authorizes punishment for contempt by a fine of not more than $500 and by confinement in county jail for not more than six months. We are not concerned here with the power of the trial court to impose punishment within these limits. Rather, our consideration relates to the coercive portion of the contempt decree, the indefinite confinement of relator until payment of the $4,710 and court costs.

The evidence bearing upon relator’s ability to pay the arrearage at the time of the contempt hearing on October 31,1975 is not controverted. He testified that he desired to pay the $4,710 as soon as possible but was unable to pay it at the time of the hearing; that he was employed by a swimming pool company; that his work week ranged from ten to forty hours per week due to the seasonal nature of the work; and that he wished to pay off the arrearage over a period of time but simply did not know how he would do so. In his petition for writ of habeas corpus, Dustman makes the following sworn statements concerning his ability to pay, which statements remain uncontradicted:

[H]e is unable to comply with the Order of the Court to pay FOUR THOUSAND SEVEN HUNDRED TEN AND NO/100 ($4,710.00) DOLLARS by virtue of financial inability . . . . [H]e only grossed THREE THOUSAND FIVE HUNDRED THIRTY-FOUR AND 50/100 ($3,534.50) DOLLARS during the year of 1975. [H]e is unable to borrow the said sum to secure his release. [He] has no property he could mortgage to raise said sum.

The duration of Dustman’s incarceration is some corroboration of his uncontra-dicted testimony. Ex parte Fiedler, 446 S.W.2d 698 (Tex.Civ.App.1969, no writ). He was held in contempt on October 31, 1975. On November 6, 1975, the order of commitment was issued, and on the same day Dustman was taken into custody. From that time until March .3, 1976, when he was released on bond pursuant to this Court’s order, he remained in the county jail in Randall County. In Ex parte Fiedler, where the relator had been incarcerated for only seven days before filing a writ of habeas corpus, this period of seven days was considered corroboration of relator’s testimony concerning inability to pay the outstanding child support. Dustman, however, remained in the Randall County jail almost four months before being released on bond. Certainly, the duration of his incarceration is some corroboration of his inability to purge himself of the contempt by paying the $4,710 plus court costs.

An original habeas corpus proceeding in this Court is a collateral attack upon the contempt order, and the relator may be relieved of that order’s impositions only if the order is void. Ex parte Thetford, 369 S.W.2d 924 (Tex.1963). Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953). An order of contempt imposing a coercive restraint is void if the condition for purging the contempt is impossible of performance. Ex parte Smyers, 529 S.W.2d 769 (Tex.1975). Ex parte Rohleder, 424 S.W.2d 891 (Tex.1967). Ex parte Wagner, 368 S.W.2d 185 (Tex.1963). Ex parte Townsley, 156 Tex. 402, 297 S.W.2d 111 (1956). Ex parte DeWees, 146 Tex. 564, 210 S.W.2d 145 (1948). Unless he has the means by which he may purge himself of the contempt, the relator must be discharged from jail. Otherwise, as stated in Ex parte DeWees, the effect of denying the writ of habeas corpus when the relator is unable to purge himself would be to authorize the trial court to confine the relator for the balance of his natural life.

The testimony of Dustman falls within the exception giving conclusive effect to testimony of an interested party where “it is clear and positive, and there are no circumstances in evidence tending to discredit or impeach such testimony.” McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (1943). The record before us conclusively establishes that it is not within the power of Dustman to perform the act which would result in his release from the continuing imprisonment imposed upon him by the contempt decree. We hold, therefore, that the trial court exceeded its power in ordering that relator be imprisoned until the $4,710 plus court costs is paid. Ex parte Gonzales, 414 S.W.2d 656 (Tex.1967). Ex parte Rohleder, supra.

The relator is discharged.


author: GREEN, Commissioner.

text:
    Terry Lee TOWNSLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 51746.
    Court of Criminal Appeals of Texas.
    July 7, 1976.
    Frank Maloney and Kenneth E. Houp, Jr., Austin, for appellant.
    Robert O. Smith, Dist. Atty., and Stephen Capelle, Asst. Dist. Atty., Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before the court without a jury on a plea of not guilty, appellant was convicted of involuntary manslaughter. See V.T.C.A., Penal Code Section 19.05(a)(1). Punishment was assessed at five years probated.

Appellant initially contends that the court erred in overruling his motion to quash the indictment, arguing that it did not comply with the requirements of Article 21.15, V.A.C.C.P.

The indictment contained two counts, and prior to the commencement of the trial the State elected to proceed only on the second count. Said count, omitting the formal beginning, alleges that on or about February 8, 1974, in Travis County, appellant

“did then and there recklessly cause the death of Luther Eugene Stark by driving a motor vehicle at an excessive rate of speed while attempting to elude a police officer and recklessly causing said vehicle to run off the roadway and roll over, thereby fatally injuring the said Luther Eugene Stark, who was a passenger in said vehicle . . . ”

V.T.C.A., Penal Code Section 19.05(a)(1) and (c) provides:

“19.05. Involuntary Manslaughter
“(a) A person commits an offense if he:
“(1) recklessly causes the death of an individual; or
“(c) An offense under this section is a felony of the. third degree.”

Article 21.15, V.A.C.C.P., as amended by Acts of 1973, 63rd Legislature, p. 968, ch. 399, Section 2(A), effective January 1, 1974, provides:

“Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.”

Appellant argues that since Article 21.15 as amended, supra, is identical, insofar as it deals with allegations of negligence, to its predecessor before the amendment (see Article 21.15 as it read before January 1, 1974), the cases construing said prior statute would be authoritative and cites us to Scott v. State, 171 Tex.Cr.R. 53, 344 S.W.2d 457 (1961); Short v. State, Tex.Cr.App., 387 S.W.2d 50 (1965) and Jones v. State, Tex.Cr.App., 388 S.W.2d 716 (1965). Each of these three cases was reversed because of the failure of the complaint and information to comply with the requirement of the statute that the acts relied upon to constitute negligence be alleged with reasonable certainty. Although the opinions in the above cases do not set out the language of the State’s pleading, a study of the records on file in this Court reflects that the allegations of negligence relied on to constitute aggravated assault by motor vehicle were as'follows:

In Scott v. State, supra: “. . . by then and there wilfully and with negligence colliding with and causing injury to the person of Maudie Davis, . . .”; in Short v. State, supra: “. . .by then and there willfully and with negligence colliding with and causing injury to the person of Margaret Young; . . .”; and in Jones v. State, supra: “. . - by then and there willfully and with negligence colliding with and causing injury to the person of George Chromack.” It is quite obvious that the complaint and information in each of these cases did not comply with the requirements of Article 21.15, V.A.C.C.P. as it read at the time the pleadings were drawn, and that the judgments were properly reversed.

The indictment in the instant case is clearly distinguishable from the State’s pleadings in the above cited cases. It does not allege merely “that the accused, in committing the offense, acted recklessly” as proscribed by Article 21.15, V.A.C.C.P., as amended. The indictment alleges “with reasonable certainty” the act relied upon to constitute recklessness, said act being “by driving a motor vehicle at an excessive rate of speed while attempting to elude a police officer, and recklessly causing said vehicle to roll over . . .” See DeMary v. State, Tex.Cr.App., 423 S.W.2d 331.

Appellant insists that the acts alleged to constitute recklessness must be plead within the context of the definition of reckless as that term is defined in V.T.C.A. Penal Code, Section 6.03(c), as follows:

“A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

We hold that as long as the act relied upon to constitute recklessness is alleged with reasonable certainty so that the accused will be informed of the nature of the reckless act of which he is accused, the State is not required to plead such act in the terms of the above statute defining recklessly. We conclude that the indictment sufficiently alleged with reasonable certainty the act or acts relied upon to constitute recklessness, and the court properly overruled appellant’s motion to quash.

Appellant contends that the district court trying this case had no original jurisdiction of the offense charged in the indictment, since said offense of involuntary homicide resulting from the use of a motor vehicle is governed by Section 50A of Article 6701d, V.A.Civ.St. (Acts 1971, 67th Leg., p. 730, ch. 83, Sec. 19, effective August 30, 1971), and not by V.T.C.A. Penal Code, Section 19.-05(a)(1), supra, and hence said offense is merely a misdemeanor.

Article 6701d, Section 50A, supra, provides:

“Sec. 50A
“(a) Whoever shall unlawfully and unintentionally (with a conscious disregard for the rights of others) cause the death of another person while engaged in the violation of any State or municipal ordinance applying to the operation or use of a vehicle or streetcar or to the regulation of traffic shall be guilty of homicide when such violation is the proximate cause of said death.
“(b) Any person convicted of homicide by vehicle shall be fined not less than Five Hundred Dollars ($500) nor more than Two Thousand Dollars ($2,000), or shall be imprisoned in the county jail for not less than three (3) months nor more than one (1) year, or may be so fined and so imprisoned; provided, however, that such person may be tried only upon indictment by a grand jury and may be tried only in the county where the violation occurred.”

In Davis v. State, Tex.Cr.App., 519 S.W.2d 874 (1975), relied on by appellant, we held that said Section 50A had the effect of repealing the negligent homicide statutes, Articles 1230-1243, V.A.P.C. (1925), insofar as the homicide was the result of the negligent operation of a motor vehicle, and that Section 50A alone was applicable in such cases. The offense in Davis occurred December 18, 1972, prior to the effective date of V.T.C.A. Penal Code, Section 19.05, supra, and Section 21.15, supra. The holding in Davis does not control the instant offense which was committed February 8,1974, after the effective date of the new Code.

The Practice Commentary to said Section 19.05 contains the following language:

“The legislature in 1971 added a vehicular homicide offense to the traffic laws, see R.C.S. art. 6791d, (sic) § 50A; it was not expressly repealed by the new code and on its face thus duplicates the offense of involuntary manslaughter — and perhaps that of criminally negligent homicide as well. A general rule of statutory construction provides, however, that if a code purports to cover an entire topic, a prior statute dealing with the topic but not included in the code is impliedly repealed, see American Indemnity Co. v. City of Austin, [112 Tex. 239] 246 S.W. 1019 (T. 1922); D. Sands, 1A Sutherland Statutory Construction § 28.13 (4th ed. 1972); contra, Att’y Gen.Op. No. H-213 (1974). The entire topic of criminal homicide, which is basic to the penal law, is of course dealt with comprehensively in the new code, and it is unlikely that the legislature intended to preserve a separate offense dealing solely with homicide caused by motor vehicle.”

As evidence of the Legislature’s intent that the new Penal Code should deal with the entire subject of criminal homicide, V.T. C.A. Penal Code Section 19.01, Types of Criminal Homicide, provides:

“(a) A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.
“(b) Criminal homicide is murder, capital murder, voluntary manslaughter, involuntary manslaughter, or criminally negligent homicide.”

The four culpable mental states mentioned in Section 19.01(a), supra, are classified in Section 6.02 of the Code as follows:

“(d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:
“(1) intentional;
“(2) knowing;
“(3) reckless;
“(4) criminal negligence.”

Section 6.03 defines each of the aforesaid “Culpable Mental States.” Section 6.03(c), which defines the culpable mental state of recklessness, has heretofore been quoted.

Thus, it is apparent that the Legislature, in enacting Sections 19.01 to 19.07, inclusive, supra, which constitute Chapter 19 of the new Penal Code under the heading Criminal Homicide, and the above sections defining the four culpable mental states specified in Section 19.01 under the heading Types of Criminal Homicide, intended that the entire topic of criminal homicide be dealt with and provided for in the new Penal Code. We so hold. We further hold that the Legislature, in enacting said Code, did not intend to preserve a separate offense under Section 50A of Article 6701d, V.A.Civ.Stat. dealing solely with homicide caused by motor vehicle, as contended by appellant. Consequently, we hold that said Section 50A of Article 6701d, V.A.Civ.St. was repealed by the provisions of the new Penal Code of 1973, supra.

The offense charged in the indictment was a felony of the third degree, and the district court in which the case was tried properly exercised jurisdiction.

For the reasons stated above, appellant’s contention that the indictment failed to apprise him of the offense with which he was charged is without merit, and is overruled. Likewise, his contention in his fourth ground that the punishment assessed was not authorized by law is overruled. The indictment was returned and the prosecution conducted under V.T.C.A. Penal Code, Section 19.05(a)(1) and (c), supra, which provides that the offense alleged is a felony of the third degree. The punishment assessed was within the limits provided for such a felony by V.T.C.A. Penal Code, Section 12.-34.

The judgment is affirmed.

Opinion approved by the Court.

      . See Section 19.02.

      . See Section 19.03.

      . See Section 19.04.

      . See Section 19.05.

      . See Section 19.07.