author: TITUS, Judge.

text:
    Michael R. COX, Plaintiff-Appellant, v. Ada H. MILLER, Defendant-Respondent.
    No. 9885.
    Missouri Court of Appeals, Springfield District.
    Oct. 14, 1975.
    Rehearing Denied Nov. 4, 1975.

      A. L. Shortridge, Joplin, for plaintiff-appellant.
    L. R. Buehner, Buehner & Buehner, Joplin, for defendant-respondent.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

Prompted by defendant’s motion for directed verdict at the close of plaintiff’s evidence, the trial court opined plaintiff had not maintained a careful and vigilant lookout and was, therefore, guilty of negligence as a matter of law which contributed to cause the two-car-intersectional accident in question. Judgment was entered accordingly and plaintiff has appealed contending the question of his negligence vel non should have been submitted to the jury for decision.

North-south Main Street in Joplin consists of four traffic lanes (each 12 feet wide) and two curb-adjacent parking lanes (each 6 feet wide); two of the traffic lanes are for southbound traffic; the other two are for northbound traffic. East-west 17th Street accommodates two traffic lanes intended for single lines of vehicles traveling east and west upon the thoroughfare. The accident occurred during daylight on dry pavement. Electric signals which ordinarily controlled traffic at the intersection were hors de combat due to a tornado which struck the city earlier in the day. Plaintiff was southbound on Main Street. Defendant was traveling west on 17th Street and crossing Main Street when the casualty transpired.

Before the accident plaintiff had stopped at the east edge of 16th and Main Streets (one block north of the collision site), and had then driven west onto Main Street, turning left or south into the west or outside traffic lane some 10-12 feet to the rear and right of a National Guard Jeep which was traveling south in the east or inside traffic lane at a speed, according to plaintiff, of 10-15 miles per hour. Plaintiff’s “highest” speed, by his testimony, was “about 20, 25 miles an hour,” and he was slowly overtaking the Jeep. When the Jeep got to the north side of the intersection at 17th and Main Streets, it was stopped and plaintiff’s car (by his testimony) was then “3 or 4 feet, maybe 5 feet” behind the Jeep. Plaintiff thought the Jeep was halted so its driver could turn left. Plaintiff drove past the stopped Jeep “doing about 20 miles an hour,” and when the front of his car was some 2 to 5 feet south of the pedestrian lane which crossed the north side of the intersection, the “right side of the front end” of plaintiff’s car struck the “back end” of the right rear fender of defendant’s automobile when it “was almost out of the intersection.” Plaintiff did not see defendant’s automobile “until it got up in front of me” or “until I hit her.” Plaintiff “tried to apply my brakes, but I didn’t have time for them to catch hold.” The speed of defendant’s automobile was unknown to plaintiff, and when asked what prevented him from seeing defendant’s vehicle sooner than he did, plaintiff replied: “The Jeep in the inside lane. I couldn’t see anything.”

Occupants of the Jeep first Observed defendant’s westbound automobile as it was entering onto Main Street from the east side of the intersection. The Jeep driver said he was traveling 20-25 miles per hour as he proceeded south on Main Street and that when he first espied plaintiff’s car it “was to our right and a little to the rear of our Jeep . . . . The front of the [plaintiff’s] car was somewhere between the rear bumper of the Jeep and the passenger seat.” The Jeep driver remembered on direct examination he had made a “sudden stop” at the north edge of the intersection “[b]ecause [defendant’s] car was going across the intersection;” on cross-examination, he agreed that two or three days before trial he had told defendant’s counsel that as he came up to the intersection he might have stopped once, started forward and had to stop again. The Jeep passenger did not observe plaintiff’s car before the collision and testified the Jeep was traveling 15 miles per hour as it neared the intersection. He testified that after defendant’s automobile had entered the intersection at an unstated speed and was “about even with the left front of our Jeep,” it “kinda paused” to 5-10 miles per hour “and then went on through the traffic . gave it more gas to get on by.” The- passenger also stated that the Jeep driver made an emergency type stop to avoid hitting or being hit by defendant’s automobile.

Conspicuous by its absence was evidence as to the distances the Jeep and plaintiff’s car were north of the intersection as defendant entered onto Main Street, “kinda paused” in the intersection, and “gave it more gas to get on by,” or the distance those vehicles were north of the intersection when the Jeep driver first saw plaintiff’s car or when the brakes on the Jeep were applied. Likewise, except at the time defendant “kinda paused,” the record is mute as to defendant’s speed as she was traversing Main Street. Also, no witness was able to state with certainty whether there was or was not any northbound traffic traveling north of the intersection which alone or in combination with the presence of the Jeep, could or would have prevented plaintiff, wherever he may have been at the time, from seeing defendant’s automobile before he did. There was no suggestion that the speed at which plaintiff was driving was in excess of the lawful speed for vehicles traveling on Main Street.

In deciding whether plaintiff was guilty of contributory negligence as a matter of law, plaintiff’s evidence must be accepted as being true and he must be afforded the benefit of all favorable inferences arising therefrom. If reasonable men would honestly differ upon the issue of whether plaintiff used and exercised the highest degree of care in the operation of the car he was driving on the occasion involved, that issue should have been determined by the jury, not by the trial court. Davenport v. Wabash Railroad Company, 435 S.W.2d 641, 646[5] (Mo. banc 1968); Willis v. Wabash Railroad Company, 377 S.W.2d 489, 492[1, 2] (Mo.App.1964).

As plaintiff approached the intersection, he was duty bound to keep a careful lookout. He was required to look ahead, to his right, to his left, and in some cases also behind. But he could not look in one direction all the time. Neither was he required to keep his head in a constant motion from side to side. Norris v. Winkler, 402 S.W.2d 24, 27[3] (Mo.App.1966). And although plaintiff was charged with seeing that which could have been seen, the law does not require the impossible nor hold one guilty of contributory negligence because of his inability to see through impenetrable objects or bend his vision around them. If plaintiff could not see defendant’s automobile, he is not to be charged with negligence in not seeing it. Johnson v. Bush, 418 S.W.2d 601, 604[1] (Mo.App.1967); Fuzzell v. Williams, 288 S.W.2d 372, 376[9-11] (Mo.App.1956).

When two vehicles traveling in the same direction in parallel traffic lanes are in such a position that the lateral view of one of the drivers is obstructed by the other car, we know of no law which requires the motorist whose view is obstructed to stop, accelerate or decelerate the speed of the vehicle he is operating to obtain an unobstructed lateral view. Such a requirement would create more problems than it would solve; it would seriously disrupt the normal flow of traffic and interfere with the purpose and usefulness of multiple traffic lanes. Cf. Collier v. St. Louis Public Service Company, 298 S.W.2d 455, 460 (Mo.App.1957); Nightingale v. Birnbaum, 11 Cal.App.2d 34, 52 P.2d 955-956 (1935). Evidence as to the position of plaintiff’s car in the outside lane in relation to that of the Jeep in the inside lane as the two vehicles neared the intersection, permits an inference that the defendant’s automobile was not plainly visible to plaintiff as his lateral view to the left was blocked by the Jeep [cf. Hammon v. Gentemann, 423 S.W.2d 5, 7 (Mo.App.1967)], and as we must accept plaintiff’s testimony as being true for the purpose of our present task [Zumault v. Wabash Railroad Company, 302 S.W.2d 861, 863[3] (Mo.1957)], we are bound by plaintiff’s unobjected-to testimony that he could not see defendant’s automobile until it got in front of him or until the moment of impact because of “[t]he Jeep in the inside lane.” Considering this in combination with the following, it is our opinion that reasonable minds could honestly differ as to whether plaintiff exercised the required degree of care. Plaintiff was driving on what could be inferred to be a principal thoroughfare of the city. He was proceeding in a proper lane at a rate not contended to be in excess of any lawful speed limit, and at a rate similar to that of the Jeep whose driver had an unobstructed view to the left. The Jeep, traveling somewhat laterally to plaintiff’s car, drove steadily toward the intersection until it came to a stop. As the Jeep was in the inside lane and was stopped with its front end “in the intersection,” plaintiff could assume, as he said he did and sans other circumstances, that the Jeep had stopped to facilitate a left turn rather than to give way to an unseen vehicle traversing Main Street. Because he observed the Jeep and its movements, the presence of ears parked along the west curbing and eventually saw defendant’s automobile “in front of me,” it is reasonable to infer that plaintiff was looking ahead and also to his right and left as he drove along Main Street albeit the Jeep interfered with his left lateral vision. By the time defendant’s automobile came into plaintiff’s view, plaintiff’s car was so close to the intersection there was then not sufficient time and distance for him to take effective action to avoid the collision. Shelton v. Bruner, 449 S.W.2d 673, 679[3] (Mo.App.1969). On this record we cannot say that plaintiff was guilty of contributory negligence as a matter of law for failure to keep a proper lookout.

Defendant urges that in the event we should conclude the court nisi erred in directing the verdict on the issue of lookout, the judgment should nevertheless be sustained if the direction was proper for any other reason. To this point defendant cites Stewart v. Zuellig, 336 S.W.2d 399, 402[1] (Mo.1960); Silvey v. Missouri Pacific Railroad Company, 445 S.W.2d 354, 361[7] (Mo.1969); Anderson v. Dyer, 456 S.W.2d 808, 814[8] (Mo.App.1970); and Dill v. Poindexter Tile Company, 451 S.W.2d 365, 370[5] (Mo.App.1970). Only Stewart is properly cited for this general proposition in the posture of this case; no other authorities have been provided us by defendant to support her allegation that plaintiff did not make a submissible case or was contributo-rily negligent for reasons not specified by the trial court. Defendant’s urging, without citation of authority to substantiate any unannounced reason for the trial court’s action, is tantamount to a suggestion that we search the record and cull the authorities to find some basis for concluding the trial court reached a correct result although its declared reason was erroneous. It is not our duty to become an advocate for defendant and we decline the invitation that we should. State ex rel. Mayfield v. City of Joplin, 485 S.W.2d 473, 476[10] (Mo.App.1972).

The judgment is reversed and the cause is remanded for a new trial.

All concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Belva Huddleston KUHN, Plaintiff-Appellant, v. D. B. BUNCH and Flora L. Bunch, Defendants-Respondents.
    No. 9690.
    Missouri Court of Appeals, Springfield District.
    Oct. 16, 1975.
    L. Thomas Elliston, Webb City, Myers, Webster & Perry (a Professional Corporation, on the brief), Webb City, for plaintiff-appellant.
    Max H. Glover, Webb City, Charles D. Tudor, Joplin, for defendants-respondents.
   PER CURIAM:

January 25, 1974 — Judgment was entered for defendants in this court-tried case.

February 8, 1974, or 14 days after judgment, plaintiff timely filed “Motion to Amend Judgment” pursuant to Rule 73.01-1(c), V.A.M.R. The motion was heard the same day of its filing and was overruled.

February 22, 1974, or 14 days after the motion was overruled, plaintiff filed notice of appeal.

Even in the absence of a suggestion that the notice of appeal is out of time, we are duty bound to determine its timeliness because we lack appellate jurisdiction unless the notice of appeal was filed within the time prescribed by Rule 81.04, V.A.M.R. Jenkins v. Roberts, 420 S.W.2d 24, 25[1] (Mo.App.1967).

Rule 81.05(a), V.A.M.R., provides, in part: “Authorized after-trial motions shall be treated as . . .a new trial motion for the purpose of ascertaining the time within which an appeal must be taken [and] [t]he filing and disposition of such motions has the same effect as to time for appeal in all cases whether or not the motion has any function other than to seek relief in the trial court.” The rule also states that when a new trial motion, and hence any authorized after-trial motion, is passed on before the expiration of 90 days, the judgment becomes final for appeal “at the date of disposition of said motion.”

Plaintiff’s authorized after-trial “Motion to Amend Judgment” (Rule 73.01-1(c), V.A.M.R.) deferred the finality of the judgment for appeal under Rule 81.05(a), V.A.M.R., to the same effect that a motion for a new trial would have deferred it. Jenkins v. Jenkins, 243 S.W.2d 804, 806-807[1] (Mo.App.1951). However, when the court overruled the motion, the judgment then became final. Rule 81.04 states: “No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.” Since the notice of appeal was not filed until the 14th day after the judgment became final, we have no jurisdiction and no alternative but to dismiss the appeal. It is so ordered.

All concur.


author: HENRY, Justice.

text:
    DUCK RIVER ELECTRIC MEMBERSHIP CORPORATION, Appellant, v. CITY OF MANCHESTER, Tennessee, Appellee.
    Supreme Court of Tennessee.
    Sept. 15, 1975.

      Gilbert S. Merritt, Jr., Gullett, Steele, Sanford, Robinson & Merritt, Nashville, Edward F. Gordon, Bobo, Gordon & Grissom, Shelbyville, for appellant.
    Charles E. Griffith, III, Griffith & Stokes, Nashville, H. Thomas Parsons, City Atty., Manchester, for appellee.
   OPINION

HENRY, Justice.

These two civil actions, consolidated for the purposes of appeal, raise two questions, viz:

1. Does the City of Manchester have the right to acquire, by eminent domain, so much of the electric system of Duck River Electric Membership Corporation as is within the boundaries of the city?
2. Assuming the existence of the right, what is the proper measure of damages?

I.

The first suit was instituted by the City of Manchester, seeking to acquire, by eminent domain, certain property owned by Duck River Electric Membership Corporation, located within the corporate limits of the city and used by Duck River as a part of its electric distribution system.

Duck River moved to dismiss, insisting that the city, a municipal corporation, “is not authorized and has not been delegated the right to take property used to supply electric power under the Electric Cooperative Law and may not, therefore, take the property described in the petition, owned by defendant, a public non-profit electric membership corporation organized pursuant to the Electric Cooperative Law, T.C.A. § 65-2501, et seq.”

The trial judge overruled the motion to dismiss, holding that the city had authority to acquire so much of Duck River electric distribution system as is located within the city, under the Municipal Electric Plant Law of 1935 (§ 6-1501 et seq., T.C.A.).

This appeal challenges this ruling by assignments which insist that (1) a Tennessee municipality may not condemn the property of an electrical cooperative without demonstrating a public purpose or need and absent a judicial finding that the taking serves such a need, and (2) that a Tennessee municipality is not authorized to condemn, under the general law, the property of an electric cooperative devoted to public use. We treat these assignments as being fairly summarized by the controlling issue as specified at the beginning of this opinion.

II.

The City of Manchester, the county seat of Coffee County, Tennessee is a municipal corporation organized and existing under the laws of the State of Tennessee.

Duck River Electric Membership Corporation is a public non-profit electric membership corporation organized and existing pursuant to the Electric Cooperative Law, as set forth in § 65-2501 et seq., T.C.A.

The city granted a franchise to Duck River, authorizing the operation of an electric system within the city for a fifteen year period beginning 8 January 1958 and expiring 8 January 1973. This franchise has not been renewed with the result that, as a practical proposition, Duck River continues to serve the city at its sufferance and the residents of the city are being supplied electricity at the sufferance of Duck River. While the orderly processes of the law would no doubt intervene to prevent the city being thrown into darkness, the fact remains that this arrangement is fragile and lacking in stability.

Under these circumstances the city, on 4 June 1974, after Duck River’s franchise had expired, adopted its Ordinance Number 345, declaring that “the prosperity of the City of Manchester will be materially retarded and that it would be detrimental to the welfare of the inhabitants and citizens of the City of Manchester for [them] to continue to be served by the Duck River Electric Membership Corporation”; that they would “be better served by a municipally owned electrical distribution system;” and directing that a condemnation suit be filed.

The determination by a condemning authority of the necessity for the taking is not a question for resolution by the judiciary and, absent a clear and palpable abuse of power, or fraudulent, arbitrary or capricious action, it is conclusive upon the courts. Harper v. Trenton Housing Authority, 38 Tenn.App. 396, 274 S.W.2d 635 (1954); City of Knoxville v. Heth, 186 Tenn. 321, 210 S.W.2d 326 (1948). But of course the courts have the right and duty to determine the existence of authority to take, the existence of a legitimate public use and related questions.

Section 6-1505 T.C.A., a part of the Municipal Electric Plant Law of 1935, reads in pertinent part, as follows:

Any municipality proceeding under the provisions of §§ 6-1501 — 6-1534 is authorized and empowered to condemn any land, easement or rights-of-way, either on, under or above the ground, for any and all purposes necessary in connection with the construction, operation and maintenance of an electric plant or improvements thereto.

It is self-evident that this statute applies only to real estate. We assume that the trial judge, in holding that the Municipal Electric Plant Law of 1935 authorized the taking, along with the Revenue Bond Law, had in mind that the former law and the above quoted statute authorized the condemnation of land only, and, on that basis we affirm his holding, as to the availability of this statute; however, in view of § 6-1304, its actual utility is questionable.

Section 6-1304, T.C.A., a part of the Revenue Bond Law reads, in pertinent part:

In addition to powers which it may now have, any municipality shall have power under this chapter:
(1) To construct, acquire by gift, purchase, or the exercise of the right of eminent domain, reconstruct, improve, better cr extend any public works, within or without the municipality, or partially within or partially without the municipality, and to acquire by gift, purchase, or the exercise of the right of eminent domain, lands or rights in land or water rights in connection therewith.

In the clearest of language this statute empowers the city to acquire by condemnation, any public works, and land or rights in land, in connection therewith. This is a clear and complete remedy. It is not necessary to rely upon any other statute. It does not provide for the application of the general eminent domain statutes (§ 23-1401 et seq.) as does § 6-1501; however, § 23-1402 makes the general eminent domain statutes “a part of every section, or legislative act, present or future, which grants the power of such condemnation”, unless expressly stated to the contrary. Therefore, in this regard, the acts are of identical import.

We hold that this condemnation action must be sustained under the provisions of § 6-1304, Tennessee Code Annotated, and we affirm the action of the trial judge in so holding.

Counsel for Duck River earnestly and ably urge upon the Court the proposition that a corporation may not condemn property already devoted to public use by another corporation, and cites, in support of this general rule of law, numerous cases from this and other jurisdictions. We do not fault this as a correct generalized statement of the law.

Railroad Co. v. Cemetery Co., 116 Tenn. 400, 94 S.W. 69 (1906) holds, in substance, that property devoted to one public use cannot lawfully be taken for another and inconsistent use without express or applied legislative authority. The inconsistent public use was a railroad right-of-way vis-a-vis, a cemetery. This case has no particularized application since the contemplated use in the instant case is not inconsistent and for the further reason that § 6-1304 is a specific grant of authority to municipalities authorizing, as it does, the condemnation of public works (defined by § 6-1302 to include electric plants and systems). Electric systems are seldom privately owned and are always devoted to the public use in the practical sense that they exist to serve substantial segments of the public. The Legislature, therefore, knew that it was authorizing the condemnation by Tennessee municipalities of public service type utility operations engaged in supplying electric current to the public.

Southern Railway v. Memphis, 126 Tenn. 267, 148 S.W. 662 (1912) reaffirms Railroad v. Cemetery Co. There the suit involved a taking of switch and terminal yards for public park purposes, a wholly inconsistent use.

Railroad v. Mayor and Aldermen of Union City, 137 Tenn. 491, 194 S.W. 572 (1917) recognizes that property devoted to a public use may be appropriated to an inconsistent use upon legislative authorization.

Williamson Co. v. Turnpike Co., 143 Tenn. 628, 228 S.W. 714 (1920) recognized the general rule but permitted the county to condemn a turnpike company pursuant to legislative sanction.

Cases from other jurisdictions and textbook authority follow the same general pattern.

There are compelling reasons for holding that a Tennessee municipality has the power to condemn the property of an electrical cooperative within its boundaries.

We look first to the character of the two entities.

In Memphis v. Laski, 56 Tenn. 511 (1872) the Court characterized Tennessee municipalities thusly:

A municipal corporation is created by the government for political purposes, and is vested with subordinate and local powers of legislation. It is an imperium in im-perio, and can no more be embarrassed in the exercise of the governmental powers with which it is invested for the public good, than can the power creating it.

They exist for the purpose of general government. They are arms or agencies of the state and they exercise, by delegation, a portion of sovereign power for the public good. Thornton v. Carrier, 43 Tenn.App. 615, 311 S.W.2d 208 (1957).

Electric membership cooperatives, under Tennessee law, are general welfare corporations. (§ 65-2503 T.C.A.). They are organized to distribute electricity to their members, governmental agencies and political subdivisions with non-members restricted to ten percent (10%) of the number of members. (§ 65-2508). By appropriate by-laws membership qualification and limitations may be imposed. (§ 65-2514).

After the payment of certain expenses and providing for certain reserves, the revenues in each fiscal year may be distributed to its members either as patronage refunds, or by way of rate reductions, or both (§ 65-2516), and upon dissolution among the membership. (§ 65-2525).

A distressing feature of these corporations is their power to refuse service to prospective customers. The pre-eminent mission of public power, and of those charged with its distribution, is to provide the blessings of electricity to the maximum possible extent. The adoption of membership conditions tends to frustrate that purpose. It is a permissible practice but one which should give foremost recognition to the high obligation of public service.

In Chumbley v. Duck River Elec. Corp., 203 Tenn. 243, 310 S.W.2d 453 (1958) this Court was confronted with an action wherein the plaintiff sought to compel Duck River to furnish him with electricity. The Court very properly denied relief, holding that there was no duty to supply electricity to a non-member unless and until he complied with the reasonable rules and regulations (plaintiff insisted they were most unreasonable) of Duck River.

A city electric department can exact no membership requirement and must serve all inhabitants, without discrimination and without the imposition of restrictions and conditions excepting those relating to payment.

While we cast no aspersions upon these corporations and freely and fully recognize the great public service they have rendered in rural and sparsely populated areas of our state, the fact remains that they are manifestly low-grade, volunteer, public service type corporations, inferior in all respects, to municipalities which exist for the purpose of general government. Cities enjoy perpetual succession; there is no provision for their dissolution accompanied by a division of assets. They enjoy a higher degree of permanency and a greater degree of stability-

Ample authority supports the position of the city that the property of Duck River is not in “public use.” However, this is in context of legal technicalities and niceties. We think a fair appraisal of the services rendered by electric membership corporations demands the conclusion that their facilities are devoted to “public use” in the context of condemnation proceedings. Yet, there can be no legitimate contention but that the city distribution of electric current will be a higher public use.

And in the last analysis, a municipality has the exclusive power to control the distribution of electricity within its boundaries. Franklin v. Mid. Tenn. Elec., 222 Tenn. 182, 434 S.W.2d 829 (1968). This case inferentially holds that the city may take the property of an electric cooperative. See 434 S.W.2d at 833.

In short, as between a Tennessee municipality and an electric membership cooperative, the city is sovereign and supreme.

Manchester may condemn. It will hold the property so acquired for the general public benefit, with a higher and larger scope of use and under a more stable and responsive system.

III.

The second suit was a declaratory judgment action filed in aid of the condemnation suit and seeking to have the Court declare the proper measure of damages.

The city insisted that § 23-1414, T.C.A., a part of the general condemnation statutes, is applicable; whereas Duck River takes the position that § 6-320 T.C.A. is applicable since the property of an electric membership corporation is involved.

The trial judge held that the damages would be determined by the general condemnation statutes embraced in § 23-1401 et seq. Tennessee Code Annotated.

This appeal ensued.

IV.

Section 23-1414 provides, in pertinent part:

In estimating the damages, the jury shall give the value of the land or rights taken without deduction, but incidental benefits which may result to the owner by reason of the proposed improvement may be taken into consideration in estimating incidental damages.

That this is a most imprecise statement of the elements of damages there can be no doubt; however, down through the years the courts have evolved rules for the determination of just compensation.

The right to just compensation is decreed by Article 1, Section 21 of the Constitution of Tennessee which provides in substance that no man’s property shall be taken without just compensation. This right of compensation existed long before the statutory scheme of condemnation came into being; therefore “such right cannot be said to be created by any such statutes, because the latter are enacted in implementation of the constitutional right already given.” Brooksbank v. Roane County, 207 Tenn. 524, 341 S.W.2d 570 (1960).

Reference to the general condemnation statutes will reveal that they contemplate only the condemnation of land. No reference is made to personal property and yet the constitutional prohibitions against taking private property without just compensation applies with full force and validity to personal property. Zirkle v. City of Kingston, 217 Tenn. 210, 396 S.W.2d 356 (1965).

This action seeks to condemn land. It may or may not be improved. It also seeks to condemn personal property including poles, conductors, anchors, guy wires, lightning arresters, transformers, street lights, and numerous other items of equipment used in an electrical distribution system. Technically, some of this may be so attached as to become a part of its realty; however, we treat it as personal property, in accordance with the pleadings, for the purposes of this phase of the controversy.

The general condemnation statutes requiring a jury of view to “examine the ground” and “set apart by metes and bounds, a sufficient quantity of land for the purposes intended” (§ 23-1412 T.C.A.) are ludicrously inapplicable. (It would be difficult to set apart a guy wire by metes and bounds). The standard measure of just compensation, arrived at in the usual manner, is equally unacceptable.

Section 6-1301, T.C.A. under which the city’s right to condemn is sustained, is silent as to damages. However, as heretofore pointed out, the general eminent domain statutes are made a part of all other statutes conferring the power of condemnation by § 23-1402 T.C.A. But this brings us back to an unacceptable measure of damages.

The courts have fashioned appropriate measures of damages without specified guidance from the Legislature. We agree with the insistence of counsel for the city that “the determination of damages is a judicial and not a legislative question.” The old case of Railroad v. Memphis, supra, instructs us that the question of the sufficiency and adequacy of the procedure for ascertaining damages is a judicial question confided to the courts. We so hold.

The public policy of our state, however, is formulated to a substantial extent by the Legislature, Home Beneficial Assn. v. White, 180 Tenn. 585, 177 S.W.2d 545 (1944), and where it has made a positive pronouncement in an area of constitutional concern, we hesitate not to carry out its obvious intent.

The Legislature has arrived at a formula or method for determining the fair market value or just compensation to be paid the owner in these cases involving the acquisition of public entities.

Section 6-320 reads, in part as follows:

(2) Municipality shall offer to purchase the electric distribution properties of the cooperative located within the annexed area, together with all of the cooperative’s rights to serve within such area, for a cash consideration which shall consist of (a) the present-day reproduction cost, new, of the facilities being acquired, less depreciation computed on a straight-line basis; plus (b) an amount equal to the cost of constructing any necessary facilities to reintegrate the system of the cooperative outside the annexed area after detaching the portion to be sold; plus (c) an annual amount, payable each year for a period of ten (10) years, equal to the sum of (i) twenty-five per centum (25%) of the revenues received from power sales to consumers of electric power within the annexed area, except consumers with large industrial power loads greater than 300 kilowatts, during the last twelve months preceding the date of the notice provided for in (1) above, and (ii) fifty per centum (50%) of the net revenues (gross power sales revenues less wholesale cost of power including facilities rental charge) received from power sales to consumers with large industrial power loads greater than 300 kilowatts within the annexed area during the last twelve (12) months preceding the date of the aforesaid notice.

We hold this to be a fair and equitable method of determining just compensation as mandated by our Constitution.

In arriving at this conclusion we have not found it necessary to determine whether the City of Manchester is an “annexing municipality” within the meaning of § 6-320 and we have not overlooked the fact that Manchester does not presently own or operate its own electric system. In our view these are not controlling considerations. We are motivated by the fact that the Legislature has found and determined this to be a proper manner for determining “just compensation” or “fair market value.” We cannot bring ourselves to believe that the Legislature would allow one measure of compensation for annexed utilities and another for those acquired by condemnation. Nor would we.

We realize that we have probably approved a liberal measure of damages, but we think Duck River is entitled to liberal consideration. The City of Manchester has been the beneficiary of its service for a long period of time. Duck River, no doubt, extended its services and facilities to accommodate Manchester residents and their withdrawal will doubtless have an adverse effect upon surcharges, rates and reserves.

This case (13094) is reversed and remanded with instructions to the trial judge to try the issues as if this were an inverse condemnation suit, applying the measure of damages as above delineated. We eliminate the jury of view in this particular case as being unproductive and inappropriate.

The costs of these appeals will be borne equally by the parties.

In accordance with Rule 7, of this Court, the costs of the Circuit Court Clerk are disallowed to the extent of unnecessary duplications in the two transcripts filed in this Court. The Clerk of this Court will compute the exceptions.

COOPER and BROCK, JJ., and LEECH, Special Justice, concurring.

HARBISON and FONES, JJ., not participating.

ON PETITION TO REHEAR

The City of Manchester has filed a petition to rehear and for clarification.

We held:

a. That the City of Manchester has the right to condemn.
b. That the damages would be determined in accordance with § 6-320 T.C.A.
c. That on remand the trial judge would try the issues as if this case were an inverse condemnation suit, with the jury of view eliminated.

Condemnation had not been completed and we did not so hold. The City may proceed with the suit or it may dismiss, at its option. It may construct its own system or it may franchise a competing system, or it may exercise numerous other options and alternatives. But if it elects to continue, the measure of damages and method of their ascertainment are as herein fixed.

The petition is

Overruled.

LEECH, Special Justice, and COOPER and BROCK, JJ., concurring.

HARBISON, J., not participating.


author: FONES, Chief Justice.

text:
    John Parker LAYNE et al., Petitioners, v. C. W. SPEIGHT, Commissioner of Highways of the State of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Oct. 14, 1975.

      William M. Abies, Jr., South Pittsburg, for petitioners.
    R. A. Ashley, Jr., Atty. Gen., Russell G. Lazenby, Jr., Asst. Atty. Gen., Nashville, Francis Barker, South Pittsburg, for respondent.
   OPINION

FONES, Chief Justice.

The issues in this condemnation case spring from the land owner’s witnesses’ use of comparable sales to oil companies, admittedly enhanced by location on the 1-24 interchange at Kimball. The Layne property was taken for the widening of U. S. Highway 72 from First Street in South Pitts-burg to the 1-24 interchange, a project later in time to the construction of 1-24 and the portion of the interchange where the comparables were located, but said by the State to constitute one project and render the comparables inadmissible as tainted with enhancement by the very project for which the subject property was taken.

The trial judge overruled the State’s objection to the use of the comparable sales in question and the jury returned a verdict of sixty-two thousand, five hundred ($62,500) dollars as the value of the land taken and no incidental damages to the residue.

The Court of Appeals reversed and remanded for a new trial, holding that (1) whether or not 1-24 was an integral part of the public improvement for which this land was taken was a question of fact for the jury under proper instructions from the Court, and (2) the trial judge erred in overruling the State’s objection to the testimony of Boyd and Adcock, for the reason that their estimates of value were based solely upon the highest and best use, rather than all available uses. The State had not relied upon either proposition in the trial court or in the Court of Appeals.

Land owners petitioned this Court for the writ of certiorari citing both rulings of the Court of Appeals as error. We granted the writ and have heard oral argument.

I.

No authority is cited by the Court of Appeals in support of the conclusion that the scope of the project issue is a question for the jury.

The question posed by the State on the preliminary motion was the admissibility of comparable sales of similar properties to major oil companies, on the ground that such sales were tainted by enhancement in value from the same project for which the Layne property was being taken.

It is well settled in this State that the admission of comparable sales in an eminent domain case rests largely in the discretion of the trial court. All of the numerous factors that weigh upon the issue of admissibility of comparable sales are considered and passed upon by the trial judge, as a preliminary matter. See Lewisburg & N. R. Co. v. Hinds, 134 Tenn. 293, 183 S.W. 985 (1916); Memphis Housing Authority v. Ryan, 54 Tenn.App. 557, 393 S.W.2d 3 (1965); Maryville Housing Authority v. Ramsey, 484 S.W.2d 73 (Tenn.App.1972); Memphis Housing Authority v. Newton, 484 S.W.2d 896 (Tenn.App.1972); Memphis Housing Authority v. Peabody Garage Company, 505 S.W .2d 719 (Tenn.1974).

In United States v. Reynolds, 397 U.S. 14, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970), the issue of whether the scope of the project question is to be determined by the trial judge or by the jury was squarely presented. The court concluded that the matter could be decided either way without doing violence to Rule 71A(h) Federal Rules of Civil Procedure. But, the court concluded it is for the judge to tell the jury the criteria it must follow in determining what amounts will constitute just compensation and that in order to do so he must decide the scope of the project issue as a preliminary matter. Although we have not adopted Rule 71 of the Federal Rules of Civil Procedure, the holding in Reynolds is in harmony with the cases heretofore cited, and the practice in Tennessee.

The Court of Appeals was in error in holding that the scope of the project issue, which determined the admissibility of comparable sales, was for jury determination.

II.

At the beginning of the trial, out of the presence of the jury, trial counsel for the State made the following motion:

“_at this time as a preliminary matter for the State of Tennessee I’d like to make a qualitive [sic] motion. This is a motion to exclude the testimony of the landowner’s witnesses that sales to major oil companies and others near Interstate 24 interchange are comparable sales, if such witnesses testify that in their opinion enhancement of value for those parcels and to the land in this lawsuit was influenced by Interstate 24 interchange construction. As U. S. 72 widening and 1-24 construction were so intergradiently associated as to constitute one project, and any such enhancement in value to defendant’s land was due to the various public improvements for which it was taken.” B.E. at 5, 6

In support of the motion counsel cited State Department of Highways v. Jennings, 58 Tenn.App. 594, 435 S.W.2d 481 (1968), and State For The Use Of The Highway Department v. Craner et al., unpublished opinion of the Court of Appeals, Middle Section, released May 15,1974, for the proposition that if the value of the land has been depreciated or enhanced by the anticipation of the very public improvement for which it is taken, then such depreciation or enhancement may not be considered in fixing such values, and the compensation to the owner for the taking of his land must be fixed as though the particular public improvement had never been conceived, planned, announced or begun.

State v. Jennings, supra, correctly states the rule that the land owner is not entitled to enhancement resulting from the public improvement for which his land is taken. The scope of the project question presented in this case was not an issue in Jennings or in State v. Craner, supra, although these were two projects, it was conceded that they were separate and distinct. Our research fails to reveal a Tennessee case providing guidelines for determining whether the taking is for an extension of the existing project or for some other public purpose.

We adopt the Federal Rule articulated in United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336 (1943):

“if a distinct tract is condemned, in whole or in part, other lands in the neighborhood may increase in market value due to the proximity of the public improvement erected on the land taken. Should the Government, at a later date, determine to take these other lands, it must pay their market value as enhanced by this factor of proximity. If, however, the public project from the beginning included the taking of certain tracts but only one of them is taken in the first instance, the owner of the other tracts should not be allowed an increased value for his lands which are ultimately to be taken any more than the owner of the tract first condemned is entitled to be allowed an increased market value because adjacent lands not immediately taken increased in value due to the projected improvement.
The question then is whether the respondents’ lands were probably within the scope of the project from the time the Government was committed to do it. If they were not, but were merely adjacent lands, the subsequent enlargement of the project to include them ought not to deprive the respondents of the value added in the meantime by the proximity of the improvement. If, on the other hand, they were, the Government ought not to pay any increase in value arising from the known fact that the lands probably would be condemned. The owners ought not to gain by speculating on probable increase in value due to the Government’s activities.” 317 U.S. at 376, 377, 63 S.Ct. at 281

In United States v. Reynolds, supra, the court was asked to clarify the scope of the project test. However, the Court merely restated the crux of the rule of Miller that if the lands were probably within the scope of the project from the time the government was committed to it, no enhancement in value attributable to the project is to be considered in awarding compensation. Mr. Justice Stewart, writing for the Court, added the following:

“. . .As with any test that deals in probabilities, its application to any particular set of facts requires discriminating judgment. The rule does not require a showing that the land ultimately taken was actually specified in the original plans for the project. It need only be shown that during the course of the planning or original construction it became evident that land so situated would probably be needed for the public use.” 397 U.S. at 21, 90 S.Ct. at 807, 808

In further support of the preliminary motion the State called Clarence S. Harmon as a witness. He had retired on January 1, 1973, as Director of Research and Planning for the State Highway Department. He testified that he had worked with the planning of 1-24 which was “established” in 1958. He related that there were a number of revisions made in the 1-24 plan and that he did work on some of the planning but not all of it; that he worked on all of the planning for the connector route, that is the widening of U. S. 72.

Harmon said the plans for 1-24 and the interchange in question were completed in 1963 and right-of-way acquisition started. He testified that 1-24 was open for traffic in that area in 1965 or 1966.

With respect to the widening of U. S. 72, he testified that he had looked through his records and he did not have a record, “_that it was in this plan like this prior to 1964_”. He produced a brochure based upon 1964 planning, that described a tentative five (5) year schedule for the State Highway system. The period involved was January 11, 1965, through June 30, 1970. Therein, the right-of-way taking for the widening of U. S. 72 was programmed for the period July 1, 1968, through June 30, 1969. The actual date of taking of the Layne property was October 30, 1970.

At one point in his testimony Harmon said, “_we had 72 all the time, the interchange was built and consequently it became necessary and we considered it in our planning to improve the access from South Pittsburgh to the interstate in order to avoid the congestion.”

The burden of proof is upon the State to show that the taking of the Layne property was “probably within the scope of the project from the time the government was committed to it.” The State’s proof shows that the plans for 1-24 at this interchange were complete in 1963 and right-of-way acquisition was underway. We think the State was committed to that project at that time. The planning for the widening of U. S. 72 appears to have followed in 1964, when “it became necessary” to improve the access and avoid congestion between South Pittsburgh and the interstate.

At one point in his testimony, Harmon gave “a little history” wherein it appears that a state-wide survey was made at the request of the Highway Department, by the Automotive Safety Foundation to recommend “which road should be built first_and this was one of the ones that was selected at that time.” The study was made at some time in the years 1955-1957, but in our opinion, that testimony is too vague to have any probative value on the question of whether the widening of U. S. 72 in the late 1960’s was within the scope of the 1-24 project when the State was committed to it no later than 1963.

The opinion of the Court of Appeals treats the State’s witness, William Hester, as corroborating the testimony of Mr. Harmon that, as stated by the Court of Appeals, “the construction of Interstate 24 and the widening of U. S. Highway 72 were both being planned at the same time and constituted one project.” We are unable to find anything in the testimony of Mr. Hester to that effect, and the State did not rely upon Mr. Hester’s testimony in presenting its preliminary motion and has not relied upon his testimony in the briefs filed in the Court of Appeals or this Court.

While the issue is close, we cannot say that the evidence preponderates against the finding of the trial judge that the State failed to carry the burden of proving the U. S. 72 project was within the scope of the 1-24 project. It follows that he correctly overruled the State’s motion to exclude sales to major oil companies near the 1-24 interchange as comparable sales.

III.

The Court of Appeals held the entire testimony of Boyd and Adcock, the land owner’s expert witnesses as to value, to be inadmissible upon the unassigned ground that an analysis of their testimony revealed that they considered only the highest and best use rather than all available uses.

We have quoted in full the objection of the State to the admissibility of comparable sales to oil companies, made at the beginning of the trial, before any testimony was adduced. We have carefully examined the record and find only two renewals of that objection during the course of the trial, both clearly predicated on enhancement in value from their 1-24 interchange location. At the conclusion of the testimony of Mr. Harmon (page 20, bill of exceptions), the following appears:

MR. BARKER: Your Honor, I’m not going to take up a lot more time on this. I think it’s been covered, and I’d like to renew that motion that evidence of these enhanced sales be excluded because this witness has shown that they are so interrelated they could be considered one.

At page thirty-seven (87) of the bill of exceptions the following appears, during the direct examination of the witness Boyd:

A. Well, first of all I looked at sales on 1-24 Interchanges_
MR. BARKER: (Interposing) Excuse me Mr. Boyd.
Your Honor, I’d like to renew an objection that I made earlier for the record on proof of comparable sales of the witness for the reasons that I set out in the absence of the jury.

We are aligned with the majority of states in holding that just compensation must be measured by the fair market value of the land in view of its value for all available uses as distinguished from its value for the best use. See Davidson County Board of Education v. First National Bank Trustee, 202 Tenn. 9, 301 S.W.2d 905 (1957). Relying upon that rule, the Court of Appeals analyzed the testimony of Boyd and Adcock and concluded that their testimony had been based entirely upon the best use and that the trial judge had erred in overruling the State’s motion, to “_exclude the testimony of the witnesses, Boyd and Adcock.”

The State’s motion was clearly limited to testimony of comparable sales to oil companies, if enhancement “was influenced by Interstate 24 interchange construction.” That motion was overruled at the conclusion of Mr. Harmon’s testimony. In the abundance of precaution the State’s objection was renewed during Mr. Boyd’s testimony. Incompetency of the testimony of Boyd and Adcock upon the ground that their valuation testimony was not based upon all available uses was not articulated at any time during the trial and is clearly not embraced in the objection made and overruled.

In Middle Tennessee Railroad Company v. McMillan, 134 Tenn. 490, 184 S.W. 20 (1916), the trial judge sustained an objection upon the grounds of hearsay and excluded certain testimony from the jury. The Court of Civil Appeals did not rule on the validity of the hearsay objection but held the evidence inadmissible on other grounds. The Supreme Court, noting that the ruling of the trial judge on the hearsay objection was clearly erroneous, held as follows:

“. . . Incompetency not objected to is waived. Any other rule would result in setting a trap for the other side of the controversy. When objection is made to evidence, and specified, this notification may enable opposing counsel to obviate it, and thus make the evidence competent, but, if the party making an erroneous objection should be allowed to withhold a good objection and make that in the appellate court, where there can be no possibility of avoiding the difficulty by other evidence, this would give a very great advantage to the party so withholding his real objection, and result in corresponding disadvantage and injustice to the opposing litigant.” 134 Tenn. at 507, 508, 184 S.W. at 24

The rule in Illinois is in accord with McMillan : “A party objecting to the introduction of evidence must specify the particular ground for the objection in all instances where the objection, if pointed out, might be corrected by the adverse party.” People ex rel. Blackmon v. Berent, 97 Ill.App.2d 438, 240 N.E.2d 255, 257 (1968), citing People v. Merrill, 76 Ill.App.2d 82, 221 N.E.2d 145 (1966). See also: Kroger Grocery & Baking Co. et al. v. Harpole, 175 Miss. 227, 166 So. 335, 340 (1936); State v. Dietz, 115 N.W.2d 1 (N.D.1962); Heyverests v. State, 202 Ind. 359, 174 N.E. 710 (1931); 88 C.J.S. Trial § 125b; Wharton’s Criminal Law and Procedure, § 2047.

The reason for the rule is particularly applicable in this case. While we entertain considerable doubt that the Court of Appeals has correctly analyzed the testimony of Boyd and Adcock, assuming that it was defective pursuant to one of the several caveats quoted by Mr. Justice Burnett in Davidson County v. First National Bank Trustee, supra, it is clear that the objection could have been met by the land owner in the trial court either through the witnesses Boyd and Adcock themselves or otherwise. This kind of trap in the trial of a lawsuit is contrary to traditional notions of fair play and substantial justice.

The Court of Appeals is reversed and the trial court is affirmed. The costs in the cause are adjudged against the State of Tennessee.

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


author: COOPER, Justice.

text:
    SERVICE MERCHANDISE COMPANY, INC., Appellant, v. George M. TIDWELL, Commissioner of Revenue, State of Tennessee, Appellee.
    Supreme Court of Tennessee.
    Oct. 27, 1975.

      Stewart F. Kresge, Snodgrass & Kresge, Nashville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., William B. Hubbard, Asst. Atty. Gen., Nashville, for appellee.
   OPINION

COOPER, Justice.

This appeal is from the decree of the Chancery Court of Davidson County dismissing the action brought by Service Merchandise Company, Inc., to recover use taxes, together with interest and penalty thereon, paid to the State of Tennessee under protest. The primary issue presented is whether the transactions on which the taxes were assessed were interstate commerce and thus specifically exempted from taxation by T.C.A. Section 67-3007.

The use taxes involved in this action were assessed on the value of printed material (catalogues, supplements, and flyers) which Service Merchandise Company, Inc., a Tennessee corporation, furnished its customers at no charge and upon request of the customers. The printed material was prepared and coordinated for publication pursuant to a contract between appellant and Creative Merchandising and Publishing, Inc., a Minnesota corporation. Creative Merchandising had the catalogues and supplements printed by either the Midwest Printing Company or Brown Printing Company, both Minnesota corporations. Upon completion of the printing process in Minnesota, the material was transported by one of the following methods to individuals who had requested it:

1. The printer affixed a label containing the recipient’s name and address to each piece of printed material, packaged it according to fourth class postal regulations, and carried it to a United States post office in Minnesota for delivery through the mail to the addressee.

2. The printer affixed a label containing the recipient’s name and address to each piece of printed material, packaged it according to fourth class postal regulations, and hired a common carrier to truck the printed material to regional United States post offices in Tennessee where it was unloaded by postal employees and delivered through the mail to the addressee.

3. The printed material was trucked by common carrier from the printer in Minnesota to Reo Packaging Company in Chicago, Illinois. Reo wrapped and sealed each piece in clear plastic, affixed a label containing the recipient’s name and address, packaged it according to fourth class postal regulations, and hired a common carrier to truck the printed material to regional United States post offices in Tennessee where it was unloaded by postal employees and delivered through the mail to the addressee.

Use taxes were assessed for the years 1970 through 1973 on the printed material trucked by common carrier to the docks of regional post offices in Tennessee and then entered into the United States mail for delivery to the recipients, the second and third categories of shipments set out above. The state took the position that:

(1) the interstate journey of the printed material which was ultimately delivered to Tennessee residents was terminated when the items reached the postal docks in Tennessee; and

(2) that even as to the printed material which was ultimately delivered to individuals outside the State of Tennessee, there was a sufficient break in the interstate journey to allow taxation.

The chancellor sustained the use tax assessments by holding that “[tjhere was a break or pause in the interstate journey that allowed the state to impose a use tax when the catalogues reached the Tennessee post office docks.” The theory behind the chancellor’s holding, and as argued by ap-pellee, is that once the printed material reached the postal docks in Tennessee, appellant, described as the “mailer,” exercised control over it by distributing it to potential customers, and that the act of distribution was a taxable event.

On appeal, Service Merchandise insists (1) that goods transported in interstate commerce are not subject to taxation until that interstate commerce has terminated, and (2) that the facts of this case reveal merely a change in the mode of transportation of the goods and that such an event is insufficient to terminate the interstate commerce character of the transaction.

We agree with appellant’s contention that the interstate character of the transactions in question here did not terminate at the postal docks. In Illinois Central RR. v. Fuentes, 236 U.S. 157, 35 S.Ct. 275, 59 L.Ed. 517 (1915), the United States Supreme Court made the following observations about the interstate character of commerce:

“When freight actually starts in the course of transportation from one state to another it becomes a part of interstate commerce. The essential nature of the movement and not the form of the bill of lading determines the character of the commerce involved. And generally when this interstate character has been acquired it continues at least until the load reaches the point where the parties originally intended that the movement should finally end.” Id. at 163, 35 S.Ct. at 276 (emphasis added).

The parties to the interstate commerce transaction in the present case clearly intended that movement of the printed material would not terminate until reaching its ultimate destination, the mailboxes of the recipients. See also Binderup v. Pathé Exchange, 263 U.S. 291, 44 S.Ct. 96, 68 L.Ed. 308 (1923); Western Oil Refining Co. v. Lipscomb, 244 U.S. 346, 37 S.Ct. 623, 61 L.Ed. 1181 (1917).

A determination that interstate commerce does not terminate until the goods reach the final destination intended by the parties does not dispose of the question of taxability in this case, however. A sufficient break at intermediate points in the continuity of interstate transit of goods will allow state taxation of those goods. The issue then is was the delivery of the printed material to the postal docks in Tennessee a sufficient break in interstate commerce to permit the State of Tennessee to collect a use tax on the printed material. See General Oil Co. v. Crain, 209 U.S. 211, 28 S.Ct. 475, 52 L.Ed. 754 (1908). Certain well-established principles drawn from United States Supreme Court cases dealing with the question of state taxation of interstate commerce provide substantial guidance in determining this issue.

It is fundamental that states may not levy a tax on goods which are in transit in interstate commerce. Hughes Bros. Timber Co. v. Minnesota, 272 U.S. 469, 47 S.Ct. 170, 71 L.Ed. 359 (1926); Coe v. Errol, 116 U.S. 517, 6 S.Ct. 475, 29 L.Ed. 715 (1886). See also T.C.A. Section 67-3007. To avoid the possibility of state taxation, however, practical continuity of transit must exist. Carson Petroleum Co. v. Vial, 279 U.S. 95, 49 S.Ct. 292, 73 L.Ed. 626 (1929). The general principles governing the question of a break in the interstate continuity of transit are succinctly stated by the Court in Minnesota v. Blasius, 290 U.S. 1, 54 S.Ct. 34, 78 L.Ed. 131 (1933):

“If the interstate movement has begun, it may be regarded as continuing, so as to maintain the immunity of the property from state taxation, despite temporary interruptions due to the necessities of the journey or for the purpose of safety and convenience in the course of the movement . . .. Formalities, such as the forms of billing, and mere changes in the method of transportation do not affect the continuity of transit. The question is always one of substance, and in each case it is necessary to consider the particular occasion or purpose of the interruption during which the tax is sought to be levied . . .. The mere power of the owner to divert the shipment already started does not take it out of interstate commerce if it appears ‘that the journey has already begun in good faith and temporary interruption of the passage is reasonable in furtherance of the intended transportation.’ ” Id. at 9-10, 54 S.Ct. at 37, quoting Hughes Bros. Timber Co. v. Minnesota, 272 U.S. 469, 476, 47 S.Ct. 170, 71 L.Ed. 359 (1929).

The question thus becomes what purpose or occasion will subject property temporarily halted in its interstate journey to taxation by the local jurisdiction. As suggested in Minnesota v. Blasius, supra, if the temporary interruption in actual transit is merely incidental to the interstate journey — i. e., necessary to further the movement — the property is not subject to taxation. See Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583 (1954); Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422, 67 S.Ct. 815, 91 L.Ed. 993 (1947); Carson Petroleum Co. v. Vial, 279 U.S. 95, 49 S.Ct. 292, 73 L.Ed. 626 (1929); Hughes Bros. Timber Co. v. Minnesota, 272 U.S. 469, 47 S.Ct. 170, 71 L.Ed. 359 (1929); Champlain Realty Co. v. Brattleboro, 260 U.S. 366, 43 S.Ct. 146, 67 L.Ed. 309 (1922). On the other hand, property may be subject to taxation if the temporary interruption is “not in necessary delay or accommodation to the means of transportation . . . but for the business purposes and profit of the [taxpayer].” General Oil Co. v. Crain, 209 U.S. 211, 230-31, 28 S.Ct. 475, 482, 52 L.Ed. 754 (1908). See Independent Warehouses v. Scheele, 331 U.S. 70, 67 S.Ct. 1062, 91 L.Ed. 1346 (1947); Minnesota v. Blasius, 290 U.S. 1, 54 S.Ct. 34, 78 L.Ed. 131 (1933); Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730 (1933); Susquehanna Coal Co. v. City of South Amboy, 228 U.S. 665, 33 S.Ct. 712, 57 L.Ed. 1015 (1913); Bacon v. Illinois, 227 U.S. 504, 33 S.Ct. 299, 57 L.Ed. 615 (1913); Pittsburg & So. Coal Co. v. Bates, 156 U.S. 577, 15 S.Ct. 415, 39 L.Ed. 538 (1895); Brown v. Houston, 114 U.S. 622, 5 S.Ct. 1091, 29 L.Ed. 257 (1885).

The cases cited above allowing state taxation of property temporarily halted in its interstate journey involve situations in which the property was held (generally in storage) by the taxpayer for processing, use, or distribution as his business interests dictated. Although further interstate movement of the property was contemplated by the parties, the ultimate destination of the property was generally unknown at the time of the interruption in transit. In Susquehanna Coal Co. v. City of South Amboy, 228 U.S. 665, 33 S.Ct. 712, 57 L.Ed. 1015 (1913), for example, coal was held in storage for the purpose of filling anticipated orders of standing customers.

The facts of the present case are distinguishable from those in which taxation has been upheld. In the first place Service Merchandise never took physical possession of the printed material in question; it did not exercise any control over the printed material. In fact, the only control which Service could have exercised was to retrieve the printed material at the postal docks. The record reveals, however, that Service only exercised that control in the case of damaged catalogues.

Appellee argues that the act of mailing the printed material is a sufficient exercise of control to allow imposition of the use tax. We must reject that argument on the ground that the act of mailing is integrally related to the actual movement in interstate commerce. In Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583 (1954), the United States Supreme Court said:

“It is now well settled that a tax imposed on a local activity related to interstate commerce is valid if, and only if, the local activity is not such an integral part of the interstate process, the flow of commerce, that it cannot realistically be separated from it.” Id. at 166, 74 S.Ct. at 401.

The facts of the present case also indicate that the ultimate destination of the printed material was fixed from the moment it entered the stream of interstate commerce. The record reveals that a pre-addressed label was affixed to the printed material before it commenced its interstate journey. Thus, it was at all times the intention of the parties to this interstate transaction that movement of the printed material would not cease until it reached the ultimate recipient. Indeed the only purpose of the entire transaction was to insure the safe and convenient delivery of the printed material to the ultimate recipient. In short, the interstate transit of these items did not end at the postal docks in Tennessee, nor was it temporarily interrupted to serve the business interests of Service Merchandise.

Appellee makes the argument that the temporary interruption in interstate transit at the postal docks in Tennessee operated to promote the business interest of Service Merchandise by allowing Service to take advantage of the less expensive local postage rates. While it is true that some printed material was mailed directly from United States post offices in Minnesota and that no use tax was imposed on it (the first category of delivery described above), there is contradictory evidence in the record as to whether that method of delivery was in fact more expensive. We do not, however, consider the expense factor relevant to the determination of whether a sufficient break in interstate transit has occurred in this case. In Kelley v. Rhoads, 188 U.S. 1, 23 S.Ct. 259, 47 L.Ed. 359 (1903), the Supreme Court held that although another means of transportation was available which would have avoided a stop in the taxing state, the taxpayer was free to choose the least expensive method without thereby necessarily subjecting the property to taxation. See Champlain Realty Co. v. Brattleboro, 260 U.S. 366, 43 S.Ct. 146, 67 L.Ed. 309 (1922).

We hold, therefore, that the temporary interruption in the interstate transit of the printed material in this case was solely for the purpose of promoting the continuing movement of the printed material in its journey to the ultimate recipients. The break in actual transit in this case must be viewed simply as a change in the mode of transportation from common carrier to the United States mail. Thus, the break was merely incidental to the journey and cannot be sufficiently separated from the actual movement in interstate commerce.

It follows that appellant is entitled to recover the use taxes, penalties, and interest paid under protest and the subject of this action. Accordingly, the decree of the chancellor dismissing appellant’s action is reversed. Judgment will be entered in this court for appellant in the amount of $37,-447.92, with interest thereon from the date of payment by appellant of the use tax wrongfully assessed by the State of Tennessee.

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

      . Although the delivery zones of the regional post offices in Chattanooga and Memphis presumably extend beyond the State of Tennessee, there is no evidence in the record indicating the percentage of printed material which in fact was mailed to individuals outside of Tennessee. However, we do not consider the presence or absence of that evidence a critical factor in the determination of this controversy.


author: HARBISON, Justice.

text:
    Mike P. LAWSON, Appellant, v. ONEIDA FUEL AND COAL COMPANY, Appellee.
    Supreme Court of Tennessee.
    Oct. 27, 1975.

      J. Gregory O’Connor, Knoxville, for appellant.
    Earl R. Layman, Knoxville, for appellee.
   OPINION

HARBISON, Justice.

This is a workmen’s compensation case in which the appellant, Mike P. Lawson, is suffering from coal worker’s pneumoconio-sis, an occupational disease covered under the Tennessee Workmen’s Compensation Act, T.C.A. § 50-1101.

There is no dispute as to the material facts. The employee, appellant here, has been engaged in underground coal mining for most of his adult life. At the time of the hearing below he was 56 years of age and had the equivalent of approximately a seventh grade education. It was stipulated that he was suffering from coal worker’s pneumoconiosis, as a result of his long exposure to coal dust, and that he was last injuriously exposed to the hazards of that disease while in the employ of appellee. Counsel for appellee stated at the hearing that “the only issue in this lawsuit is the degree of disability, if any, that this man has as a result of an occupational disease.”

Two admittedly qualified thoracic surgeons examined the appellant, and both found him to be suffering from coal worker’s pneumoconiosis. At the conclusion of the hearing the trial judge rendered a memorandum opinion, and subsequently entered a judgment, reciting in the judgment that “the plaintiff suffers an 80% permanent partial disability referable to the body as a whole, within the scope and meaning of the Tennessee Workmen’s Compensation Law, as the result of an occupational disease, caused by exposure to coal dust from his occupation as a coal miner.”

The employee has appealed, alleging that he is entitled to total disability benefits under the applicable state and federal statutes dealing with this particular occupational disease, coal worker’s pneumoconiosis.

Although pneumoconiosis has long been recognized as an occupational disease under the Tennessee Workmen’s Compensation Act, special amendments to the workmen’s compensation act dealing with this particular disease were adopted by the Tennessee General Assembly through Chapter 300 of the Public Acts of 1971 and Chapter 699 of the Public Acts of 1972 (adjourned session). T.C.A. § 50-1102, as amended in 1971, provides in material part as follows:

“In considering whether an employee has the occupational disease of coal worker’s pneumoconiosis and is totally disabled or dies therefrom all the presumptions, criteria and standards contained in or promulgated by reason of the Federal Coal Mine Health and Safety Act of 1969, Public Law 91-173, specified as the basis for determining eligibility of applicants for benefits because of said disease or its effects shall be used and be applicable under this law, and where in a proceeding under this law for benefits it is determined the employee or his dependents would be entitled to benefits under the Federal Coal Mine Health and Safety Act of 1969, the said employee or his dependents by reason of said determination shall be considered totally disabled from coal worker’s pneumoconiosis and its effects, under this law the same as if said employee, or his dependents, establishes the right to recover benefits based upon a total disability from coal worker’s pneu-moconiosis, or death by reason thereof under the laws of this state.”

Benefits payable for this occupational disease are specified in the last paragraph of T.C.A. § 50-1105.

The Federal Coal Mine Health and Safety Act of 1969 is codified at 30 U.S.C.A. § 801 et seq. The occupational disease of coal worker’s pneumoconiosis is dealt with in detail at 30 U.S.C.A. § 901 et seq.

In the case of Moore v. Old Republic Insurance Company, 512 S.W.2d 564 (Tenn.1974), this Court recognized the state and federal legislation above referred to and the regulations issued pursuant to the federal statute. The Court found that it was the intent of the Tennessee General Assembly “to adopt the Federal law concerning coal worker’s pneumoconiosis as the law in Tennessee.” 512 S.W.2d at 567.

In that case the Court quoted from the regulations issued by the Secretary of Health, Education and Welfare, in which total disability under the federal statute is found to exist in a miner if:

“(1) His pneumoconiosis prevents him from engaging in gainful work in the immediate area of his residence requiring the skills and abilities comparable to those of any work in a mine or mines in which he previously engaged with some regularity and over a substantial period of time . . . ; and
“(2) His impairment can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than 12 months.”
20 C.F.R. § 410.412

It is clear that the criteria for total disability under the federal statute and regulations are substantially different from and less stringent than those ordinarily governing claims under the Tennessee Workmen’s Compensation Act. Permanent total disability is defined in T.C.A. § 50-1007(e) as an injury which “totally incapacitates the employee from working at an occupation which brings him an income . .By T.C.A. § 50-1105, the partial or total incapacity to work or death resulting from an occupational disease is equated to the happening of an injury by accident or death by accident.

In the present case appellant testified that he had been unable to do any gainful work since leaving the employ of appellee in September 1973. There were no other witnesses in the case, except the depositions of the two physicians who examined him. One of these, Dr. William K. Swann, examined appellant on September 13, 1973 and on February 13, 1975. He testified as to various tests which he administered to the employee, who was 66 inches tall and weighed 125 pounds. The results of these tests were exhibited to the doctor’s testimony, and they revealed minimum results lower than those specified in the regulations issued pursuant to the federal statute, 20 C.F.R. § 410.426(b). Dr. Swann testified:

“The diagnosis is coal workers’ pneu-moconiosis, or the synonym for that is anthracosilicosis. This disease, this named disease ... is manifested by interstitial nodular, pulmonary fibrosis throughout the entirety of both lung fields. That’s number one. The second manifestation is severe obstructive venti-latory impairment. The third manifestation is overdistended lungs. The fourth manifestation is hypoxemia with a p02 of 70.3 mm.
“Q Doctor, what is hypoxemia?
“A Hypoxemia is less than normal oxygen capacity in the blood, oxygen content in the blood.
“Q Dr. Swann, do you have an opinion within a reasonable degree of medical certainty as to the cause of Mr. Lawson’s coal workers’ pneumoconiosis and the manifestations of that disease?
“A Yes. It is due to thirty-six years employment in the underground coal mines.”

Based upon his findings, Dr. Swann testified that the employee’s condition was permanent and irreversible. He stated that he did not believe that the appellant was “employable at all.”

On cross-examination Dr. Swann testified that he made his findings and conclusions independently of any other lung condition from which the employee might suffer, such as bronchitis. He stated on cross-examination that the employee might possibly perform some work such as a gate keeper or timekeeper, but that he was “awfully close” to being one hundred percent physically impaired.

The appellant was examined on behalf of the employer by Dr. William K. Rogers, a thoracic surgeon. Dr. Rogers testified that in addition to the work history and symptoms described by the patient, appellant stated that he smoked a package of cigarettes each day and was continuing to smoke when examined by the doctor on December 5, 1974.

Dr. Rogers found that appellant was suffering from pneumoconiosis and detected nodules in all of the right lung. He stated that he did not see any nodulation in the left lung. He found that the employee had a “bona fide category one” condition of “simple pneumoconiosis.” The doctor reported the results of tests which were given by him or under his supervision, and some of these, also, were below the minimum specified as “disabling” under C.F.R. § 410.-426.

Dr. Rogers, being asked about appellant’s ability to perform work, testified:

“Well, I think that anything that he did in the way of work would have to be a pretty sedentary type of thing where it didn’t require a lot of walking, and did not require heavy lifting more than, say, twenty pounds where he pretty much stayed in one place, and he wouldn’t necessarily have' to sit down, but it would have to be pretty light work.”

He further testified on direct examination:

“Q Doctor, the conditions that you diagnosed in Mr. Lawson are what specifically? What are the diseases—
“A Okay.
“Q From which he suffers?
“A His primary diseases are pulmonary emphysema or chronic obstructive lung disease and coal workers pneumoco-niosis, “P” sized nodulation with category 1/1. Those were his major ones, and you could add to that chronic bronchitis.”

Dr. Swann testified that he felt that the bronchitis was of such long standing that it would not be totally reversible but he felt that the appellant’s “respiratory condition” would improve if he stopped smoking. He then testified:

“Q And I take it as to the degree to which his condition is caused by the pneu-moconiosis, by the emphysema, and by the bronchitis, you wouldn’t be able to break that down either as to what extent each contributes to his condition?
“A No, sir. I think it’s — it’s just the whole summation.”

On cross-examination Dr. Rogers stated that the employee was not able to resume any type of work in underground coal mining, and that he should not re-expose himself to coal dust. He also stated that the pulmonary emphysema, or “the more modern term” according to the doctor of “chronic obstructive lung disease” is related to the presence of coal worker’s pneumoco-niosis. He stated, however, that since appellant was a reasonably heavy smoker and that since smoking was also a common cause of emphysema, he was unable to say whether the emphysema came as a result of the working conditions, the smoking, or both. He said: “I think the only thing we can say is that in the coal miner pulmonary emphysema is a frequent accompanying disease.”

Dr. Rogers stated that'in view of the work history of thirty-five to thirty-seven years of underground coal mining,

“The evidence that is accumulated and is available at the moment would indicate that it could have been responsible for a portion of his emphysema.”

Dr. Rogers testified that he had examined thousands of coal miners and had found that there was a high incidence of bronchitis among coal workers, but he also stated that many persons who smoked had this disease, so that he could not “specifically say that working in the coal mines was— caused bronchitis.”

As previously pointed out, the determination as to whether appellant is totally disabled from pneumoconiosis must be governed by the federal statutes and regulations incorporated into the Tennessee Workmen’s Compensation Act in 1971. At 20 C.F.R. § 414.414 there are a number of guidelines and presumptions set out for determining the existence of pneumoconiosis. There are provisions that even if there has not been a diagnosis of the disease by chest X-ray, biopsy or autopsy, there may be a presumption of total disability due to pneu-moconiosis if “other evidence demonstrates the existence of a totally disabling chronic respiratory or pulmonary impairment

The regulations provide that such presumption may be rebutted only if it is established that the miner does not have pneumoconiosis or that his respiratory or pulmonary impairment did not arise out of or in connection with employment in a coal mine. The provision of 20 C.F.R. § 410.-414(b), and the presumptions arising thereunder, “shall apply where a miner was employed for 15 or more years in one or more of the Nation’s underground coal mines

At subparagraph (4) of the foregoing regulation the following is found:

“However, where the evidence shows a work history reflecting many years of such coal mine employment (although less than 15), as well as a severe lung impairment, such evidence may be considered, in the exercise of sound judgment, to establish entitlement in such case, providing that a mere showing of a respiratory or pulmonary impairment shall not be sufficient to establish such entitlement.”

Tested by the general standards applicable in workmen’s compensation cases under the Tennessee statutes, the findings of the trial court, to the effect that the employee does not suffer from total permanent disability, are supported by material evidence, in that both physicians did testify that appellant could engage in some gainful occupation or employment. In a memorandum filed by the trial judge prior to the entry of final judgment, the statement was made that the employee,. despite his substantial disability, “has some capacity for useful labor . . ..” This, however, is simply not the criterion for “total disability” under the applicable statutes and regulations governing coal worker’s pneumoconiosis. The finding, incorporated into the final judgment, that the employee suffers eighty percent permanent partial disability as the result of coal worker’s pneumoconiosis, in addition to the uncontradicted testimony that he is totally unable to perform work comparable to that which he had performed in underground coal mining, may well entitle the employee to an award of total disability benefits under the applicable federal statutes and regulations. The regulations provide for recovery of total disability benefits if the pneumoconiosis is “the primary reason for his inability” to engage in gainful work comparable to that previously performed. 20 .C.F.R. § 410.426(a). This, however, is a finding and conclusion which should, in the first instance, be made by the trial judge in a pneumoconiosis case.

It is our conclusion from examination of the record that this case was tried and disposed of below on principles and standards governing ordinary workmen’s compensation claims under state law, and that the applicable federal statutes and regulations were not considered. Accordingly we vacate the judgment of the trial court and remand the case for a new trial, in which the trial judge will make appropriate findings and conclusions under the federal statutes and regulations incorporated into state law, and will award disability benefits accordingly. We call attention to the fact that if total disability benefits are awarded, specific procedures for their termination are provided at 20 C.F.R. § 410.432.

Upon the retrial of this case either party may, of course, introduce supplemental or additional medical testimony, or the trial judge may direct that this be done in order for him to make appropriate findings and conclusions under the applicable law.

Costs of the appeal are taxed to appellee.

FONES, C. J., COOPER and HENRY, JJ., and INMAN, Special Justice, concur.


text:
    Julius HILL, Plaintiff Appellant-Appellee, v. FOUR-LEAF COAL COMPANY, Defendant Appellee-Appellant.
    Supreme Court of Tennessee.
    Oct. 27, 1975.

      J. Gregory O’Connor, Knoxville, for appellant-appellee.
    Robert R. Campbell, Knoxville, for appel-lee-appellant; Hodges, Doughty & Carson, Knoxville, of counsel.
   OPINION

HARBISON, Justice.

This is an action for workmen’s compensation benefits, in which both parties have appealed from the final judgment of the trial court.

The employee, Julius Hill, is 55 years of age; he has no formal education and has worked as a coal miner most of his adult life. He had worked in underground coal mines for about fourteen years prior to his employment by the defendant below, Four-Leaf Coal Company. He then was employed by the defendant as a truck driver in a strip-mining operation, and he worked for the defendant for approximately nine years prior to terminating his employment on May 22, 1973.

The employee testified that in the underground coal mines he worked near the face of the seam, coupling cars, and in his employment for the defendant he drove trucks to and from a loader to a tipple. He testified that he was exposed to coal dust in the latter operation, both when the truck was loaded and when it was unloaded. His testimony was that he began experiencing difficulty in breathing more than a year prior to leaving his employment, and this condition gradually increased until he was finally forced to stop working for the defendant.

On June 11,1973 the employee was examined by Dr. William K. Swann, stipulated to be a qualified specialist in thoracic surgery. Based upon this examination, Dr. Swann found the employee to be totally and permanently disabled from coal worker's pneu-moconiosis, as such disability is defined in the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C.A. § 801 et seq., and the regulations issued pursuant thereto by the Secretary of Health, Education and Welfare. See Moore v. Old Republic Insurance Company, 512 S.W.2d 564 (Tenn.1974).

The criteria for total disability under said statute and regulations are different from and less stringent than those prescribed for total permanent disability under the Tennessee Workmen’s Compensation Law. By Chapter 300 of the Public Acts of 1971, as amended by Chapter 699 of the Public Acts of 1972 (adjourned session), “all the presumptions, criteria and standards contained in or promulgated by reason of the Federal Coal Mine Health and Safety Act of 1969, Public Law 91-173, specified as the basis for determining eligibility of applicants for benefits because of said disease or its effects shall be used and be applicable” under the Tennessee Workmen’s Compensation Act. T.C.A., § 50-1102. See also T.C.A. § 50-1105. The determination of total disability and the right to recover for coal worker’s pneumoconiosis are governed by the federal act, and benefits, in amounts specified in T.C.A. § 50-1105, are to be paid, subject to limitations established in the federal statute.

In the trial of the case, however, no reference was made to the 1971 and 1972 Tennessee legislation or to the federal act. The case was tried and benefits were awarded by the trial court upon the basis and under the standards of the Tennessee Workmen’s Compensation Act governing employees having total permanent disability. Following the trial, counsel for the employee filed a motion to amend the judgment, pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure, so as to provide for benefits as prescribed by the foregoing state and federal legislation dealing with coal miners. This motion was denied by the trial court. The employee appealed, and counsel for the employer stated at the bar of this Court that if the award below is affirmed, the employee is entitled to have the judgment corrected as prayed in his assignments of error.

While the employer in his assignments of error argues that the proof below would not sustain an award of total permanent disability under the standards generally applied in Tennessee workmen’s compensation cases, there is ample material evidence to support a finding of total disability within the criteria governing this case. Under the federal regulations, total disability due to pneumoconiosis is established if the employee is prevented by the disease from engaging in gainful work in the immediate area of his residence requiring the skills and abilities comparable to those of any work in a mine or mines in which he previously engaged with some regularity over a substantial period of time and if his impairment can be expected to result in death or has lasted or can be expected to last continuously for at least twelve months. See Moore v. Old Republic Insurance Company, 512 S.W.2d 564, 568 (Tenn.1974). The testimony of Dr. Swann and the testimony of the employee clearly established total disability from pneumoconiosis under these standards.

Although the employer has raised an issue of notice, this is dispensed with in the case of coal worker’s pneumoconiosis where the claim is for total disability. T.C.A. § 50-1107.

The only remaining issue, therefore, under the assignments of error made by the employer, is whether or not the employee was “last injuriously exposed to the hazards of the disease” while in the employ of the defendant. T.C.A. § 50-1106. The trial court found that there was no injurious exposure, within the meaning of the statute, after the plaintiff left the employment of the defendant, and we are of the opinion that this finding is supported by material evidence.

The facts in this regard are not in dispute. Mr. Hill testified that he left the employ of the defendant on May 22, 1973, but that thereafter he worked for approximately four days for one Marion Teague, who was also engaged in a strip-mining operation. Mr. Hill drove a truck for this employer on four occasions, once during the week ending June 28,1973, once in August, and one day each in January and February 1974. On the first two occasions when he drove, he worked approximately seven hours each day; he worked approximately three hours each day on the last two occasions. Mr. Hill did this work for and at the request of his son, who was a regular truck driver for Mr. Teague, in order to accommodate his son; all wages due to Mr. Hill for this work were actually paid to the son.

Mr. Hill testified that on each of these four occasions he was required to work in surroundings where there was coal dust, the circumstances being essentially the same as those during his regular employment with the defendant. He did not testify to any increased symptoms or additional difficulty as a result of any of these sporadic periods of work, however, nor was there any medical testimony that the work on any of these four occasions significantly contributed to the disability of the employee. As previously stated, Dr. Swann had examined Mr. Hill on June 11, 1973, some two weeks before the first occasion on which he worked for Mr. Teague. The findings of the doctor that the employee was suffering total disability from coal worker’s pneumo-coniosis were based on this examination, and there is no other medical testimony in the record. Dr. Swann did testify in response to a general question that any exposure to dusty conditions would aggravate the breathing difficulties of the employee, but, as stated, there are no specific findings with respect to any of the occasions on which the employee worked as a substitute driver for his son.

We are of the opinion, therefore, that there is material evidence to support the finding of the trial court that there was no “injurious” exposure to the employee on these four occasions, and that nothing which occurred on any of them contributed in any significant or material degree to his total disability. See Fields Plastics of Tennessee, Inc. v. Ownby, 518 S.W.2d 356 (Tenn.1974).

The employer relies upon the case of Tennessee Tufting Company v. Potter, 206 Tenn. 620, 336 S.W.2d 539, 337 S.W.2d 601 (1960), in support of its contention that the employee was last injuriously exposed to the occupational disease in question while in the employ of Mr. Teague, so as to exonerate the defendant from liability. In that case, however, total permanent disability of the employee did not result until August 1958, although there had been recurring periods of temporary disability prior to May 1958. Under these facts, the Court held that the workmen’s compensation insurer covering the employer on the later date was liable for the disability under the terms of T.C.A. § 50-1106. In the present case, however, there is no question from the medical testimony that the total disability of the employee, within the meaning of the federal and state statutes previously referred to, had occurred at the time the employee left the employment of the defendant, and there is no evidence of any significant or injurious exposure which in any way caused or contributed to the total disability in the isolated work incidents occurring after May, 1973.

The assignments of error filed on behalf of the employer, therefore, are overruled and the judgment of the trial court awarding total disability from coal miner’s pneu-moconiosis is affirmed. The assignments of error on behalf of the employee are sustained, and the cause is remanded to the trial court for determination of the benefits to be awarded to the employee pursuant to the Federal Coal Mine Health and Safety Act of 1969 and the provisions of T.C.A. § 50-1105. See Brown v. Consolidation Coal Company, 518 S.W.2d 234 (Tenn.1974). Costs of the appeal are adjudged against the employer.

FONES, C. J., COOPER and HENRY, JJ., and INMAN, Special Justice, concur.