author: BILLINGS, Judge.

text:
    Virgil ESTES, Employee-Appellant, v. NORANDA ALUMINUM, INC., Employer-Respondent, Royal-Globe Insurance Company, Insurer-Respondent.
    No. 10903.
    Missouri Court of Appeals, Springfield District, Division Three.
    Nov. 20, 1978.
    Joseph P. Fuchs, Dempster, Fuchs and Barkett, Sikeston, for employee-appellant.
    Manuel Drumm, Sikeston, for respondents.
   BILLINGS, Judge.

The Circuit Court of New Madrid County reversed the order of the Industrial Commission awarding benefits to employee Virgil Estes and this appeal followed. We agree with the trial court that the evidence fails to demonstrate a causal relation between the employee’s occupation and his alleged occupational disease and affirm the judgment.

Estes began employment with Noranda Aluminum in June, 1971. He worked as a laborer for three to six months, as a metal handler for six to eight months, and then was a saw operator for three or four months. His next position was as a direct chill operator and he continued in this job until August, 1973, when he sought medical aid for pain in his left leg.

One of the duties of a direct chill operator involves fluxing of molten metal. This process is accomplished by injecting chlorine gas into the bottom of the furnace by means of a wand which is about fifteen feet in length. The wand is inserted through a door in the furnace, the chlorine gas is mixed with the liquid aluminum, and any impurities which rise to the surface are skimmed off. The aluminum is then transferred from the melting furnace by way of open pouring troughs. Estes related that the fluxing process created fumes which he was exposed to, and on occasion chlorine gas leaked and escaped from the wand.

Estes was first treated by a local physician who referred him to Dr. Snyder, a Memphis, Tenn. neurological surgeon. Examination and testing in August, 1973, resulted in a diagnosis by Dr. Snyder of peripheral neuropathy, “either secondary to infectious polyneuritis or some type of toxic neuropathy,” “probable toxic neuropathy.” A second visit to Dr. Snyder in August, 1973, showed little change in Estes’ condition and the doctor recommended he avoid any job which required him to have any exposure to chemicals, “since his findings suggested the possibility of a causal relationship with his general neuropathy.” Further examination of Estes in November, 1973, “revealed generalized peripheral neu-ropathy, toxic response, probably infectious in origin. It was either toxic or infectious in origin.” Dr. Snyder saw Estes again in December, 1973, and February, 1974, and testing showed peripheral neuropathy, (our emphasis)

In response to a question on direct examination as to the cause of Estes’ condition, based upon a reasonable medical certainty, Dr. Snyder answered:

“A: It is my impression that this patients [sic] symptoms are probably related to being around some type of chemicals, since the diagnosis of toxic neuropathy was made and established on the basis of his EMG (electromyogram — test of electrical activity of muscle) findings, and since no other abnormality could be established as the etiology of his complaint; since the myelogram testing was normal, which ruled out any evidence of spinal cord lesion as a source of his problem; and the fact that spinal fluid studies showed no evidence of an infectious poly-neuritis, then one is left with the diagnosis of toxic neuropathy, based on the fact that this person has a history of working around chemicals which could serve as a source of the toxic neuropathy.” (emphasis added)

On cross-examination, Dr. Snyder testified as follows:

“Q: Doctor, what chemicals do you understand this man was working around prior to seeing you?
A: I do not know specifically.
* * * * * *
Q: To arrive at a diagnosis as to the cause of the toxic neuropathy in this man, wouldn’t you have to know what chemicals he was exposed to, to give us information with reasonable medical certainty?
A: The basis upon which this diagnosis was arrived was based on the fact, as I indicated in my previous testimony, was the fact that this patient gave a history of having worked around several types of chemicals, and this was by history, no antecedent cause of trauma or other abnormality as a source, which could serve as a source of his problem.
* * * * * *
Q: Well, what I am asking you, Doctor, is if in a very careful manner you would attempt to arrive at a diagnosis, which you would say was reasonably medically certain, and not merely theoretical, one of your first interests would be in knowing what chemicals he came in contact with?
A: That is correct.
Q: Wouldn’t that be an important fact?
A: Yes.
Q: In arriving at a cause?
A: That is correct.
Q: Now, Doctor, tell me, other than the fact that you can’t think of anything else that would cause toxic neuropathy, what basis, in talking with this man or talking with anyone at Noranda, gave you a fact which you thought led to the connection of the toxic neuropathy with something he did at the plant?
A: This diagnosis was made, and the relationship of the chemicals, presumably, where he worked was based on the fact and the history that he had not come in contact with any other type of chemicals. It was a diagnosis primarily of exclusion, in that since the man had no history of being in contact with any other chemicals, and from the history that he gave, that he had worked around chemicals on his job, and since the diagnosis was primarily established by the EMG testing, that this was probably a toxic neuropathy, and the diagnosis was made on the basis of a possible causal relationship since this was the only history of anything else that might serve as a source.
Q: Are you then, in effect, telling us that because you have excluded all other possibilities or causes, and based on what the man has told you, then you are assuming that he was in contact with chemicals; and since those are the only chemicals he became in contact with—
Q: —that that is what caused the toxic neuropathy? Is that kind of where we are?
Q: Is that how you got to your diagnosis and your causation, that you have excluded everything and, therefore, it must be chemicals on the job?
A: The diagnosis was arrived at by a matter of excluding other things that could cause a person to have a generalized type of neuropathy.
Q: What things could cause you to have toxic neuropathy besides chemicals?
A: Well, chemicals are the primary cause of toxic neuropathy.
Q: Are they the only thing that give you toxic neuropathy?
A: Well, if there are neuropathies of another type they are not usually thought to be toxic. There are usually other things which describe the neuropathy, other than the toxic neuropathy, so usually the toxic neuropathy does come from an extraneous source such as chemicals.
Q: Let’s assume for a moment that the chemical which this man was exposed to was chlorine gas, pure chlorine only, which is exhausted and let’s assume that you get a relatively small amount of it, but the only chemical — and let’s assume this — that is involved anywhere near where this man worked was pure chlorine gas. Now, has that chemical ever been connected with a case of toxic neuropathy in all of your studies or in any of your cases you have treated in your lifetime?
A: I think that question would have to be posed to a medical expert, which I do not proclaim to be a medical expert in toxic neuropathy. I can only speak of this man’s clinical course and the tests we have done and my logic in arriving at the diagnosis. I don’t think — and as I told this man — I don’t think that I can ever come to the point that I can say one particular chemical or one particular time, that ‘if you were exposed to such a chemical and this produced such a result,’ but I came to that conclusion based on the fact that the EMG showed he had a toxic neuropathy; and that, with the history of his having been exposed to chemicals in his job, certainly suggests a casual relationship; and based on that possibility, I made the recommendation that he avoid any further contact with those chemicals.
Q: Now, Doctor, let us for a moment assume this fact to be true, that the only chemical present in the area where Virgil Estes worked was pure chlorine gas and that no other chemicals are involved in any of the processes or any of the work that he was involved in. Assume that to be a true and correct fact?
A: All right.
Q: Are you telling us that the pure chlorine gas was the cause of his toxic neuropathy?
A: No.
Q: . . . [I]s it your testimony here and under oath today that the causal connection between the toxic neuropa-thy you found in Virgil Estes is to inhalation of pure chlorine gas, with reasonable medical certainty?
A: I cannot say that.
Q: All right. Do you feel that or are you of the opinion there must be some type of chemicals, in addition to pure chlorine gas, that this guy came in contact with?
A: It is my opinion this patient has come into contact with some type of extraneous chemicals, be it whatever the source may be.
Q: But you are not telling us that, with reasonable medical certainty, the inhalation of chlorine gas—
A: I am not, specifically.
Q: —in moderate amounts is a cause of the toxic neuropathy in this man, are you?
A: No, sir.” (emphasis added)

Dr. Rosenbaum, a St. Louis neurologist, examined Estes at employer’s request in April, 1976, shortly before the hearing, and voiced his opinion that Estes had a normally functioning nervous system and there was no evidence of toxic neuropathy. He further stated that chlorine gas had never been shown to adversely affect nerves to produce a toxic neuritis.

The referee found Estes’ injury resulted from an occupational disease [§ 287.063(1), § 287.067(1) V.A.M.S.], and “ . . . based on both lay and expert testimony, that employee was exposed to a hazard of fumes and chemicals in his employment . that caused a condition medically known as peripheral neuropathy . . . .”

A divided Commission adopted the referee’s findings and conclusions and affirmed the award. The dissenting member of the Commission did not believe the competent evidence was sufficient to establish a causal relationship between employee’s occupation and his ailments because the only proof in the record was that Estes was exposed to chlorine fumes and there was no evidence causally relating such fumes to his toxic neuropathy. The dissent also noted the speculative and conjectural nature of Dr. Snyder’s testimony.

Section 287.067, RSMo 1969, defines an occupational disease as a disease arising out of and in the course of the employment and provides a disease shall be deemed to arise out of the employment “ . . . only if there is apparent to the rational mind upon consideration of all the circumstances a direct causal connection between the conditions under which the work is performed and the occupational disease, and which can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment and which can be fairly traced to the employment as the proximate cause, and which does not come from a hazard to which workmen would have been equally exposed outside of the employment. The disease must be incidental to the character of the business and not independent of the relation of employer and employee. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.”

In order to establish a claim under the foregoing statute, a claimant is required to prove by competent and substantial evidence that there is a recognizable link between the disease and some distinctive feature of the job [Gaddis v. Rudy Patrick Seed Division, 485 S.W.2d 636 (Mo.App.1972)] which is common to all jobs of that sort [Collins v. Neevel Luggage Mfg. Co., 481 S.W.2d 548 (Mo.App.1972)] and, there must be evidence of a direct causal connection between the conditions under which the work is performed and the occupational disease. Marcus v. Steel Constructors, Inc., 434 S.W.2d 475 (Mo.1968).

Estes contends the evidence showed he was exposed to various chemicals, gas and fumes in his work as a direct chill operator and because his condition was diagnosed as toxic neuropathy, it necessarily follows that a causal connection between his work and condition was established. We disagree.

In order to arrive at his probable diagnosis, Dr. Snyder necessarily assumed Estes had been exposed to job-related chemicals. The record does not support such an assumption. As the dissenting Commission member noted, the only evidence of Estes’ exposure to chemicals or fumes while performing his job was to chlorine fumes and Dr. Snyder, without qualification or reservation, refused to causally connect his diagnosis to chlorine gas. The doctor also recognized that agricultural chemicals and “other” chemicals can cause toxic neuropa-thy.

In Marcus v. Steel Constructors, Inc., supra, claimants sought to link the inhalation of benzol fumes and fumes from welding galvanized metal and cutting and burning through layers of paint to an occupational disease which resulted in the death of the employee. In reversing the award of the Commission, the court said: “We find no medical evidence that [employee] had been exposed to benzol fumes. Dr. Sirridge did not name any specific toxic substance to which [employee] was exposed. Although in answer to a hypothetical question which assumed that [employee] had been exposed to fumes and that benzol was used in the printing plant, it was her opinion that there was a probable connection between the toxic exposure and the damage to the bone marrow which resulted in the condition which brought about his death. Neither Dr. Sirridge nor Dr. Silver stated that the fumes produced from welding galvanized metal or the fumes produced by burning through layers of paint with an acetylene torch were toxic or would cause pancytope-nia. Dr. Sirridge only discussed the possibility that the second exposure might have been from welding the metal and burned paint. . . . Inferences, to be permissible, must be reasonable, and no fact may be found nor an award be based upon mere suspicion or conjecture.”

As the court said in Welker v. MFA Central Co-Operative, 380 S.W.2d 481 (Mo.App.1964), “We think the question of causation was one for medical testimony, without which a finding for claimant would be based on mere conjecture and speculation and not on substantial evidence.”

We hold that in the instant case the finding adopted by the Commission that there was causal. connection between Estes’ job and the condition diagnosed by Dr. Snyder is not supported by competent and substantial evidence. Accordingly, we affirm the judgment of the lower court reversing the award.

FLANIGAN, C. J., and HOGAN, J., concur.


source: Caselaw Access Project

author: TITUS, Presiding Judge.

license: Public Domain

text:
    Clyde FREY and Dovie Frey, Plaintiffs-Respondents, v. James Edward GABEL, Defendant-Appellant.
    No. 11019.
    Missouri Court of Appeals, Springfield District, Division One.
    Nov. 20, 1978.

      W. H. Thomas, Jr., Routh, Thomas, Birdsong & Hutton, Rolla, for plaintiffs-respondents.
    Jay V. White, Rolla, for defendant-appellant.
   TITUS, Presiding Judge.

Defendant appeals from the March 23, 1978, judgment of the Circuit Court of Phelps County declaring that “plaintiff, Clyde Frey, have and recover of said defendant, . . ., the sum of One Thousand Four Hundred Fifty Dollars” et cet-era. On November 3,1978, plaintiffs Clyde Frey and Dovie Frey filed in this court their “Application for Damages for Frivolous Appeal.”

A comparison of the caption appearing on the notice of appeal and the application with the purported judgment recited in the notice, gave us concern as to whether there was a final appealable judgment in the matter and, whether this court possessed jurisdiction to entertain the application.

Pursuant to Rule 84.03, V.A.M.R., we required the circuit clerk to provide us with a certified copy of the judgment in the cause. As our suspicions suggested, the judgment actually rendered and entered did not undertake to nor did it dispose of the purported claim or claims of plaintiff Dovie Frey against the defendant.

This court, sua sponte, is obliged to examine the record on appeal to ensure that it has appellate jurisdiction. Appellate review is purely a creature of statute (§ 512.020, V.A.M.S.) and unless the judgment appealed from disposes of all parties and all issues we have no jurisdiction in the matter and no choice but to dismiss the appeal as being premature. Mitchell v. Commercial Standard Ins. Co., 565 S.W.2d 184, 185[1] (Mo.App.1978); Southwest ByProducts, Inc. v. Stubblefield, 564 S.W.2d 360[1, 2] (Mo.App.1978).

It is clear that plaintiff Dovie Frey, whether or not the wife of plaintiff Clyde Frey, was a party to the suit when it was instituted and that the judgment nisi did not dispose of her claim or claims whatever it or they may be. Under such circumstances we have no alternative but to dismiss the appeal. Jones v. Washburn, 560 S.W.2d 604, 606[3] (Mo.App.1978). Also, because we have no jurisdiction of the appeal, we likewise have no jurisdiction to entertain the application and it is also dismissed.

FLANIGAN, C. J., and STONE, J., concur.


author: WELDON W. MOORE, Special Judge.

text:
    James LANPHEAR, Appellant, v. STATE of Missouri, Respondent.
    No. 10759.
    Missouri Court of Appeals, Springfield District.
    Nov. 21, 1978.
    Larry Maples, Joplin, for appellant.
    John D. Ashcroft, Atty. Gen., Carson El-liff, Asst. Atty. Gen., Jefferson City, for respondent.
   WELDON W. MOORE, Special Judge.

Appellant, James Lanphear, appeals from a final order entered by the Circuit Court of Jasper County on March 24, 1977, denying appellant’s motion to vacate and set aside judgment and sentence under Rule 27.26, V.A.M.R. Appellant, on January 19, 1976, entered a guilty plea to the charge of sale of a controlled substance. On March 18, 1976, appellant was sentenced to a term of seven years on the guilty plea. On August 9, 1976, appellant filed his motion to vacate and alleged seven grounds for relief. Although all of the grounds of appellant’s motion to vacate were considered and ruled on by the court below, appellant has preserved only two of such grounds for this appeal, thereby abandoning all other grounds which are not for our review. Herron v. State, 498 S.W.2d 530[1] (Mo. 1973); Brown v. State, 492 S.W.2d 762[1] (Mo.1973); Camillo v. State, 555 S.W.2d 386, 387[1] (Mo.App.1977); Crow v. State, 514 S.W.2d 13, 14[1] (Mo.App.1974).

The two grounds of appellant’s motion preserved for our review are: 1) the court did not have jurisdiction because the indictment failed to charge an offense, and 2) the court lacked jurisdiction because the indictment failed to set forth all essential elements of the offense. The substance of these two grounds are the same and without merit.

The appellant was charged under § 195.-020 RSMo 1969, which provides “it is unlawful for any person to . sell . any controlled substance.” The indictment charges that appellant “did wilfully, unlawfully and feloniously sell to one Terry Faulks a controlled substance listed in Schedule I of § 195.017 RSMo 1969, to-wit: marijuana.” Section 195.180 RSMo provides that it is not necessary to negative any exception, excuse, proviso and exemption contained in the law and further provides that the burden of proof of any such exception, excuse, proviso and exemption shall be on the defendant. Section 195.200 prescribes the punishment for violation of § 195.020.

Our review is limited to determining whether the findings, conclusions and judgment of the trial court are clearly erroneous, Rule 27.26(j). Appellant must establish grounds for relief by a preponderance of the evidence. Rule 27.26(f); Beach v. State, 488 S.W.2d 652, 656[9, 10] (Mo.1972).

The trial court ruled the indictment charged an offense, hence it had jurisdiction, relying on State v. Davis, 510 S.W.2d 790 (Mo.App.1974) and State v. Nierstheimer, 500 S.W.2d 732 (Mo.App.1973). Davis was an appeal from a conviction for possession of marijuana which raised the sole issue that the information was fatally defective in that it failed to charge a felony because it did not allege that the amount of such marijuana was in excess of 35 grams. The information in Davis stated defendant “did then and there unlawfully and feloni-ously have in his possession a quantity of marijuana botanically known as Cannabis Sativa.” In Davis the court held that the information clearly charged the appellant with feloniously possessing marijuana and by so doing, informed him of the nature and grade of the offense and clearly eliminated any possible misapprehension that he was being charged with a misdemeanor. At p. 792[1, 2] the court said, “we hold that all substantive elements of the felony offense were charged in the information.”

Nierstheimer was a jury conviction of unlawfully delivering marijuana. The information was not set out in the opinion by the appellate court but was presented by the state in the instant hearing below, it being also a Jasper County case. The information reads in part as follows: “. Nierstheimer did then and there wilfully, unlawfully and feloniously give a narcotic drug, to-wit: marijuana, to a person under the age of twenty-one years, to-wit: Wanda Jane West, a minor child of the age of 14 years.” The court found that the evidence showed that less than 25 grams of marijuana was involved; that no remuneration was received; and that defendant had no prior convictions and therefore the sentence of five years was improper and remanded for sentencing under § 195.200, l(l)(c). At p. 735 the court said, “we have examined the record as required by Rule 28.02 and find no error respecting the sufficiency of the indictment (note § 195.020 RSMo Supp. 1971 and 195.180 RSMo 1969, Y.A.M.S.) or the verdict.”

The indictment is sufficient when tested by Court Rule 24.01. It advised defendant that he was charged with a felony offense; that the offense was sale of a controlled substance; that the controlled substance was marijuana; and that the sale was made on the 30th day of October, 1975, in Jasper County, Missouri, to one Terry Faulks. It described the offense so as to enable the defendant to make his defense and was sufficient upon conviction or acquittal to bar any further proceedings for the same cause and it informed the court of the facts alleged so that a determination could be made whether they are sufficient in law to support a conviction, if one be had. The indictment may have been subject to a bill of particulars under Criminal Rule 24.03, but that fact would not make the indictment so defective as to deprive the court of jurisdiction to impose the sentence that it did. The indictment was sufficient to confer jurisdiction.

We affirm.

FLANIGAN, P. J., STONE, TITUS, JJ., and KENNEDY and CAMPBELL, Special Judges, concur.

PYLE, Special Judge, disqualified.


text:
    STATE of Missouri, Plaintiff-Respondent, v. James “Benny” JOHNSON, Defendant-Appellant.
    Nos. 11005, 11006.
    Missouri Court of Appeals, Springfield District, Division III.
    Nov. 22, 1978.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Blair Buckley, Jr., Public Defender, Ca-ruthersville, for defendant-appellant.
   BILLINGS, Judge.

In jury-waived trials the defendant was convicted of uttering forged instruments and duly sentenced. Because defendant’s appeals in each case seek to present the issue of his in-court identification by those who cashed the bogus checks, we have consolidated the appeals in the preparation of this opinion. We affirm the judgments.

Defendant contends his in-court identification in case No. 11,005 by witness Johnny Mitchum (shoe store) and in case No. 11,006 by witness Jo Ann Upchurch (food store) was tainted by a suggestive lineup and that his appearance in the lineup was the result of an arrest which lacked probable cause.

The trial court conducted an evidentiary hearing on defendant’s motions to suppress his in-court identification. Defendant’s motions were limited to alleged suggestive identification at the lineup and did not attack his arrest, and he sought to show the makeup of individuals viewed by witnesses was constitutionally infirm. The trial court denied the defendant’s motions and at trial the above-named witnesses identified the defendant as the person who presented the checks at their respective establishments.

Defendant’s difficulty in seeking review of his claims lies in the fact that in neither case did he lodge an objection to his in-court identification. By failing to object, the defendant is foreclosed from asserting error to the trial court’s denial of his motions to suppress his identification. State v. LaMaster, 534 S.W.2d 574 (Mo.App.1976), and cases cited therein.

The judgments are affirmed.

FLANIGAN, C. J., and HOGAN, J., concur.


author: COOPER, Justice.

text:
    SHELBY MUTUAL INSURANCE COMPANY, Appellant, v. Margie DUDLEY, Executrix of the Estate of E. W. Dudley, Appellee.
    Supreme Court of Tennessee.
    Nov. 27, 1978.
    Thomas H. Rainey, Menzies, Rainey & Kizer, Jackson, for appellant.
    T. Robert Hill, Hill & Sanders, Jackson, for appellee.
   OPINION

COOPER, Justice.

Shelby Mutual Insurance Company has appealed from the decree of the Chancery Court of Madison County awarding Margie M. Dudley workmen’s compensation benefits for the death of her husband, Ewel W. Dudley. Appellant primarily insists there is no material evidence to support the decree.

Appellant is the workmen’s compensation insurance carrier for the Madison County Department of Education, for whom Mr. Dudley was working at the time of his death. Mr. Dudley was a part-time custodian at the Southside High School. A part of Mr. Dudley’s work assignment was the daily opening of the high school at approximately 7:00 a. m. and the cleaning of bathrooms and designated classrooms prior to the beginning of classes for the day. On the morning of September 13, 1976 — his fifth day on the job — Mr. Dudley was observed unlocking and entering the school building at the assigned time. A substitute teacher found Mr. Dudley on the floor of a classroom at approximately 8:20 a. m. A dust mop was nearby. The condition of the classroom indicated that Mr. Dudley had moved one row of desks and had made one pass across the room with the dust mop. Mr. Dudley was immediately taken to the local hospital where he was pronounced “dead on arrival.”

Some four months thereafter, on motion of appellant, an autopsy was performed by Dr. James Bell, an associate professor of pathology at the University of Tennessee Medical School and Deputy Medical Examiner for the State of Tennessee. The autopsy report showed that “death [of Mr. Dudley] was the result of a heart attack. The blood alcohol was 0.09% ethyl and 0.11 methyl on this embalmed individual.”

This court has repeatedly pointed out that there is no iron-clad rule which calls for payment of benefits under the Workmen’s Compensation Law where an employee suffers a heart attack while at work and for the denial of benefits where the employee suffers a heart attack while on the way home from work. The key to the recovery or denial of benefits is whether the heart attack is precipitated by the physical activity and exertion of the employee’s work. Kingsport Press, Inc. v. Van Huss, 547 S.W.2d 572 (Tenn.1977); Lawrence County Highway Department v. Hardiman, 531 S.W.2d 792 (Tenn.1975).

“If so, an employee who dies in the course of his employment as a result of a heart attack, although suffering from a previous heart disease, is covered under the Workmen’s Compensation Act even if the result was produced by ordinary exertion and usual strain of the work. Lawrence County Highway Department v. Hardiman, supra; Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540 (1959). But where the heart attack is not brought on by the work which the employee was doing, or by some external happening in the course of the employment, the employee’s death is not covered by the Workmen’s Compensation Act. See Chapman v. Aetna Casualty and Surety Co., 221 Tenn. 376, 426 S.W.2d 760 (1968); Travelers Insurance Company v. Googe, 217 Tenn. 272, 397 S.W.2d 368, 371 (1965).

“And, as summed up in R. E. Butts Co. v. Powell, 225 Tenn. 119, 463 S.W.2d 707 (1971),

‘The issue upon which cases of this nature are determined is factual; that is, whether the employee experienced the disabling injury which may have accelerated an existing disease while at work on the job. If so, this Court has held in numerous cases that the injury is accidental and compensable under our Workmen’s Compensation statutes, even though the employee was not engaged in any spectacularly unusual strain or extraordinary exertion.’ ” Kingsport Press, Inc. v. Van Huss, 547 S.W.2d 572, 573 (Tenn.1977)

In the trial, in addition to the facts set out above, it was brought out that Mr. Dudley had had two heart attacks prior to his employment by the Madison County Board of Education and that he had fully disclosed his physical condition to his employer on making application for employment. His employer also knew that Mr. Dudley had not been employed for approximately a year and a half before accepting his position as part-time custodian. On the positive side of the ledger, it was shown that Mr. Dudley was in the habit of helping his wife perform the usual household chores, and often worked in his yard and on his house. These activities, by their nature, were intermittent and not sustained for extended periods of time.

With this background, a prominent cardiologist called as an expert witness by the defendant expressed the opinion that Mr. Dudley’s activities on the morning of his death were less than those Mr. Dudley was normally accustomed to doing around his home, and that absent any stress or emotional involvement the workload on the morning in question would not be likely to aggravate or precipitate Mr. Dudley’s death or aggravate his heart disease.

On the other hand, Dr. Bell testified that in light of Mr. Dudley’s physical condition, any type of exertion could be sufficient to cause his death. And, on being specifically asked if sweeping the floor and moving furniture could be sufficient, Dr. Dell testified:

A. That would be an exertion effort and if he was hurrying and with a lot of furniture to move in a short amount of time, lifting heavy furniture, I would say yes, that could be enough exertion to produce a heart attack.

The chancellor concluded there was a causal connection between Mr. Dudley’s activities at work and his fatal heart attack. In our opinion, and as noted by the chancellor, Dr. Bell’s testimony on the issue of causation is material and supports the chancellor’s finding.

Appellant insists that the chancellor’s evaluation of evidence bearing on the issue of causation, especially the medical testimony, was erroneous. In workmen’s compensation cases, issues of credibility of witnesses and the weight to be given evidence is peculiarly the function of the trial judge. The review by this court is limited to a determination of whether there is any material evidence in the record to support the chancellor’s findings, not where the preponderance of the evidence lies. And if there is any evidence in the record to support the chancellor’s findings, we are bound to accept them. Cassell Bros., Inc. v. Cole, 519 S.W.2d 796 (Tenn.1975).

In the instant case, there was direct evidence that prior to his fatal heart attack Ewel W. Dudley moved desks and had swept one aisle in the room where his body was found, and there is medical testimony that the exertion required of Mr. Dudley could be enough to produce a heart attack. The chancellor accepted this testimony and we are bound by his findings since they are supported by evidence.

Appellant has cited us to numerous eases where the trial court, and on appeal this court, have found that work activity of an employee was not a contributing factor to a heart attack. We see no need to discuss each case individually. They do no more than emphasize the fact that where there is conflicting medical testimony on the issue of causation, this court is bound to accept the finding of the trial judge on the issue.

Decree affirmed. Costs are adjudged against Shelby Mutual Insurance Company.

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


text:
    The QUAKER OATS COMPANY, Appellant, v. Virginia SMITH, Appellee.
    Supreme Court of Tennessee.
    Dec. 4, 1978.

      James P. Diamond, Pierce Winningham, Jr., Jackson, for appellant.
    Franklin Murchison, Jackson, for appel-lee.
   OPINION

COOPER, Justice.

Virginia Smith, an employee of Quaker Oats Company, filed an action in the Chancery Court of Madison County seeking to recover benefits under the Workmen’s Compensation Act. In substance, Mrs. Smith alleged that she had fallen on two occasions while performing work assigned to her, and had sustained injuries to her legs and back. She further alleged that in necessary treatment of the injury to her back, she had undergone surgery and was permanently disabled. Quaker Oats denied receiving notice from Mrs. Smith of a work-connected injury to her back, and denied that Mrs. Smith had sustained any disabling injury while in their employ. Quaker Oats also charged that in making application for employment, Mrs. Smith had intentionally given false answers to material questions designed to determine an applicant’s true physical condition, and, consequently, that she was barred from recovery of workmen’s compensation benefits.

On trying the action, the chancellor found that Mrs. Smith was injured on May 29, 1976, in the course and scope of her employment by the Quaker Oats Company, that the Company “had timely actual notice” of the injury, and that Mrs. Smith was entitled “to receive benefits for and in connection with said accidental injuries.” The chancellor concluded that Mrs. Smith had a permanent partial disability of fifty-five percent to the body as a whole as the result of the injury to her back and resultant operation, and awarded benefits accordingly. The chancellor also awarded Mrs. Smith temporary total disability benefits for the period from May 29, 1976, to November 24, 1976, and ordered the Company to pay the medical expenses incurred by Mrs. Smith in securing treatment of her work-connected injuries.

Quaker Oats insists there is no material evidence to support the findings of the chancellor, taking specific issue with the chancellor’s findings of accidental injury, notice to the employer, and percentage of permanent disability. Appellant also insists that the undisputed evidence shows that appellee, in making application for employment, intentionally misrepresented her past medical history to the detriment of the appellant, who relied upon the application in employing appellee.

In considering assignments directed to the findings of a chancellor in a compensation case, this court does not weigh evidence, nor decide the credibility of witnesses. General Shale Products Corp. v. Casey, 202 Tenn. 219, 303 S.W.2d 736 (1957). Our review is limited to a determination of whether there is any material evidence in the record to support the chancellor’s findings. If so, we are bound to accept them. General Shale Prod. Corp. v. Casey, supra; Jones v. Lenoir City Car Works, 216 Tenn. 351, 392 S.W.2d 671 (1965). See also White v. White way Pharmacy, Inc., 210 Tenn. 449, 360 S.W.2d 12 (1962), wherein this court said in an opinion by Mr. Justice White that:

It is a well settled principle of law in this State that in a Workmen’s Compensation Case findings of fact of the trial court will not be disturbed on appeal if supported by any material evidence and this is true even though the preponderance of the evidence is against the finding of the trial court.

Keeping in mind the scope of our review, we find evidence in the record that appellee was employed by appellant in November, 1974. She was given a pre-employment physical examination, in the course of which tests were conducted designed to reveal a serious back condition. These tests were negative. Appellee worked without incident until November 13,1975, when she fell while cleaning the work area at the plant. The fall was witnessed by two co-workers and was reported by appellee to her immediate supervisors. Appellee developed severe phlebitis in her right leg and, on December 8,1975, was referred to Dr. Thomas K. Ballard for treatment. Though disputed, appellee testified she told Dr. Ballard that she had had pain in her low back since the fall, and that he told her he could find no evidence of an injury. Treatment of the phlebitis was successful and plaintiff returned to work on January 5,1975. Quaker Oats is a self-insurer and paid appellee $340.00 for the time lost in treatment of injuries she sustained in the November, 1975, fall. The Company did not have the settlement approved by the trial court.

Appellee testified that on May 29, 1976, she fell a second time while performing “cleaning” duties assigned her by appellant — this time, appellee was cleaning a freezer and was working alone. Appellee left the next day on vacation, travelling by airplane to California. Almost immediately on arriving at her destination, she was treated medically for an injury to her left leg, which had developed phlebitis. On her return to Jackson two weeks later, appellee again was treated by Dr. Ballard.

Appellee testified that as soon as she returned to work from her vacation, she orally reported her fall and injury to her supervisor, and later to Mrs. Peggy Smith, the benefits supervisor for Quaker Oats. The Company filed a report of injury dated June 30, 1975, with the Department of Labor of the State of Tennessee.

Again, though disputed, appellee insists she informed Dr. Ballard that she had injured her back in a second fall. And, on August 10,1976, Dr. Ballard referred appel-lee to Dr. H. G. Barnett, a neurosurgeon, who determined that appellee was suffering from “an L-4 disc herniation.” Appellee underwent surgery and, as a result, has an anatomical disability which Dr. Barnett rates at fifteen percent to the body as a whole. The disability is permanent.

On the issue of notice, appellant argues that it never was given notice that appellee had sustained an injury to her back in either of the two falls — that notice of accidental injury, when and if given, was limited to notice of injury to appellee’s legs. Predicated on this, appellant insists that appellee is not entitled to recover benefits for disability from a back injury. This argument overlooks the fact that appellee testified that she told both Dr. Ballard and Mrs. Peggy Smith that she had injured her back in the falls. But, even without this knowledge by appellant, we know of no requirement that an employee give notice of each of several injuries he received in an on-the-job accident. He is in compliance with the statutory requirement of notice if he notifies his employer of the accident and the fact that he has suffered an injury. The nature and extent of the employee’s injuries, and the issue of medical causation, usually come to light in the course of treatment of the employee’s injuries.

Appellant also argues that the chancellor’s finding of medical causation and the extent of appellee’s permanent disability are not supported by material evidence. On these issues, Dr. Barnett expressed the opinion that the work-related falls caused or aggravated appellee’s back condition. He also expressed the opinion that the anatomical disability of fifteen percent would limit appellee stooping, bending, standing for a long period of time, and lifting objects weighing over twenty-five pounds. These activities are common to unskilled labor. An inability to perform these activities, of necessity, greatly limits job opportunities open to a workman, such as appellee, who has a limited education and whose only work experience has been that of an unskilled laborer. On considering the anatomical disability, its limitation on appellee’s activities, and her limited and work experience, the chancellor concluded that appellee has a permanent partial disability of fifty-five percent to the body as a whole as the result of the back injury sustained by her in the fall on May 29, 1976. His conclusion is supported by material evidence and is binding on this court.

Citing testimony that appellant had a degenerative disc disease that develops over a period of years, and that appellant had had “flare-ups” of back trouble before employed by Quaker Oaks, appellant insists that appellee misrepresented her physical condition in making application for employment and, consequently, can not recover workmen’s compensation benefits.

In Federal Copper & Aluminum Company v. Dickey, 493 S.W.2d 463 (Tenn.1973), this court held that three factors must be present before a false statement in an employment application will bar recovery of workmen’s compensation benefits. First, the employee must have knowingly and wilfully made a false representation as to his physical condition. Second, the employer must have relied upon a false representation and this reliance must have been a substantial factor in the hiring. Third, there must have been a causal connection between the false representation and the injury. The causal connection required is a factual showing that the injury upon which the workmen’s compensation claim is based is causally related to the employee’s prior injuries or physical condition which were wrongfully concealed from the employer. See Federal Copper & Aluminum Company v. Dickey, supra. Except in the most obvious cases, such causation must be established by expert medical testimony. Cf. Floyd v. Tennessee Dickel Company, 225 Tenn. 65, 463 S.W.2d 684 (1971).

The chancellor did not go into detail as to which factor was missing in rejecting the contention of appellant. However, there is evidence that appellee had not had any “back trouble” for several years before her employment by Quaker Oats Company, which would support a finding that appellee did not knowingly and wilfully misrepresent her physical condition. Further, there is evidence that appellee was required to undergo a pre-employment physical examination by Quaker Oats Company, which revealed no “back trouble.” This latter evidence would support a finding that Quaker Oats did not rely solely upon the medical history given by appellee in making application for employment, but relied upon the medical examination. The absence of either of these factors supports the chancellor’s finding that appellee was entitled “to receive benefits for and in connection with said accidental injuries.”

Decree affirmed. Costs incident to the appeal are adjudged against the appellant.

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


author: WALKER, Judge.

text:
    Jackie V. FARMER and Robert B. Miller, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 8, 1978.
    Certiorari Denied by Supreme Court Nov. 6, 1978.

      Thomas E. Cowan, Jr., Elizabethton, for appellants.
    Brooks McLemore, Jr., Atty. Gen., Michael J. Passino, Asst. Atty. Gen., Nashville, David E. Crockett, Asst. Dist. Atty. Gen., Elizabethton, for appellee.
   OPINION

WALKER, Judge.

Convicted of arson and sentenced to three to six years in the penitentiary, Jackie V. Farmer and Robert R. Miller seek reversal of their convictions in this court. We have carefully examined all their assignments of error and affirm.

We are first confronted with the failure of the record to show that an appeal was prayed and granted. In order to vest an appellate court with jurisdiction of a cause, the appeal must be both prayed and granted. We have searched the record to determine whether or not this may be considered as indirectly shown in accordance with the rule in Gray v. State, 207 Tenn. 39, 336 S.W.2d 22 (1960). A motion for an extension of time to amend the motion for a new trial indicates that present counsel were employed to represent Farmer and Miller in seeking a new trial and on appeal, if necessary. The trial transcript was being prepared at that time. Although no minute entry shows that an appeal was prayed and granted, we have considered the appeal as indirectly shown and considered all of the assignments of error. State ex rel. Hathaway v. Henderson, 1 Tenn.Cr.App. 168, 432 S.W.2d 503 (1968). See also State for Use and Benefit of Lawrence County v. Hobbs, 194 Tenn. 323, 250 S.W.2d 549 (1952).

The appellants contend that the record shows that they were tried by a Washington County jury rather than one in Johnson County where the crime was allegedly committed.

Although the minute entry shows the jury was from Washington County, the bill of exceptions clearly shows that the jurors were residents of Johnson County. Where there is a conflict between the minutes and the bill of exceptions, the bill of exceptions controls. Headrick v. State, 519 S.W.2d 403 (Tenn.Cr.App.1974). This assignment is meritless.

The appellants concede that the evidence established arson, but they argue that the circumstantial evidence is insufficient to support the verdict that they were the arsonists.

The Oasis Beverage Shop, about four miles from Mountain City, had been recently built and was complete except for installing the louvers. On February 22, 1976, Frank Price, the owner, had closed the business for the day and locked the doors and windows. At about 11:00 p. m., fire under the eaves and in the attic partly burned the building, doing damage of about $2500 before a neighbor could put it out. A plastic gallon Sealtest milk bottle that had contained gasoline and two bottle tops were found near the back wall. Sealtest milk is not distributed in Johnson County but is sold in Hampton (Carter County) where the appellants live, as well as in other communities they frequent. A substance found in the debris in the attic was probably that of another plastic container. There was the smell of gasoline or a similar accelerant, both on the outside and inside of the building, at the point where the fire originated. The space for the louver to be installed was open and a bottle could have been thrown into the attic or gasoline could have been thrown there from the ground. Two expert witnesses examined the premises, including a hot spot and the debris, and were of the opinion that the fire was caused by arson.

A few minutes before the fire, Gary Baumgardner, from the nearby State Line Truck Stop, saw a man come from behind the beverage stop with a plaid coat over his head and get into the passenger side of a black Monza automobile. The two men then drove toward Mountain City. Miller was about the same size and of the same appearance as the man who came from behind the beverage store.

Baumgardner described to Officer Sow-der the black Monza automobile and the man whom he had seen in the distinctive plaid jacket, and the officer began looking for the car and its occupants. In a short time a similar black Monza automobile returned to the scene and parked on the highway. Baumgardner recognized the car driven by Farmer and the jacket on Miller and notified Officer Sowder, who testified without objection that he told Officer Gam-bill to tell these men not to move. The appellants did leave, but they were apprehended about 200 yards down the highway. On Miller’s plaid jacket there was the odor of gasoline and there were matches in his pocket. No gasoline odor was on Farmer. The car and the jacket matched Baum-gardner’s earlier description.

Farmer did not testify. In his testimony Miller denied being present earlier or having anything to do with the fire. He said that he had worked on Farmer’s car at about 9:00 p. m. and it had squirted gasoline on him, and he had also gotten gasoline on his clothing from working on his own car. In explanation of their leaving the scene, he testified that the officer told them that they could not park there and to move. He said they were on the way to North Carolina for him to get a truck for Farmer when they saw the fire and stopped.

From this evidence the jury was warranted in believing that Miller maliciously set fire to the beverage stop and that Farmer was aiding and abetting in the crime. The evidence does not preponderate against their verdict. The weight of circumstantial evidence is for the jury to determine. Pruitt v. State, 3 Tenn.Cr.App. 256, 460 S.W.2d 385 (1970). The rule for governing our review of the facts is the same whether the finding be based on direct or circumstantial evidence. State v. Brown, 551 S.W.2d 329 (Tenn.1977). The appellants have not met the burden of proving that the evidence preponderates against the verdict.

The appellants urge that the court erred in refusing to direct a verdict at the close of the state’s proof. They failed to renew the motion at the close of all the proof, and further, the evidence did not warrant a directed verdict.

The appellants say the trial judge should have granted a mistrial due to the prejudicial attitude of a juror as shown by his communication with the assistant district attorney general about eliciting further testimony from a witness.

At the time for the assistant district attorney general to begin his argument to the jury, one of the jurors addressed a question to him about Officer Gambill’s testimony and the assistant district attorney general asked the court’s permission to recall the officer. The court had the juror repeat the question, which was to the effect that he did not think Officer Gambill was asked if he told the appellants to stay at the scene. The court called counsel to the bench for a conference, after which the assistant district attorney general returned to his argument, explaining briefly that he could not put on any further proof and asking that the jurors rely on their own recollection of the evidence. The juror had pointed out a weakness in the state’s case and there was no prejudice to the appellants. The court acted properly and there was no occasion for a mistrial.

The appellants say the assistant district attorney general engaged in improper argument, expressing his personal opinion that the appellants were guilty. The portion complained of was:

“(T)he reason he came back he wanted to see how good a job he had done burning that place down.”

The appellants did not object to this part of the argument. Improper argument affords no ground for a new trial when no objection is made at the time of argument. Anglin v. State, 553 S.W.2d 616 (Tenn.Cr. App.1977). Further, we think the conclusion was supported by the evidence, was within the realm of advocacy and did not exceed the bounds of propriety. It did not affect the verdict. See McCoy v. State, 3 Tenn.Cr.App. 709, 466 S.W.2d 540 (1971).

Affirmed.

BYERS, J., and W. WAYNE OLIVER, Special Judge, concur.


author: BYERS, Judge.

text:
    Buel David WILSON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 19, 1978.
    Certiorari Denied by Supreme Court Nov. 6, 1978.

      W. P. Boone Dougherty and Thomas N. McAdams, Knoxville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert L. DeLaney, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., James R. Dedrick, Asst. Dist. Atty. Gen., Ralph E. Harwell, Sp. Prosecutor, Knoxville, for ap-pellee.
   OPINION

BYERS, Judge.

The Appellant was convicted of murder in the second (2nd) degree and sentenced to serve thirty (30) years in the penitentiary.

The Appellant says the evidence does not support the verdict, that photographs of the deceased at the scene of the occurrence were improperly admitted into evidence, that evidence and exhibits concerning undisputed issues should not have been allowed to be introduced and the State’s attorneys should not have attempted to instruct the jury on the law during voir dire.

The assignments of error are overruled and the judgment is affirmed.

On May 9, 1975, at approximately 4:00 a. m., Larry Jackson and a friend, Johnny Bruce, left Uncle Sam’s, a Knoxville night spot where they were employed, and walked across the parking lot toward their cars. At the same time, Wallace Johnson and Carol Nance left the Executive Club, a night spot adjacent to Uncle Sam’s, and walked toward their cars which were parked in Uncle Sam’s parking lot.

These four (4) people met in the parking lot and, inexplicably, Larry Jackson assumed a karate stance as if he were going to attack Johnson. Johnson did not offer to engage in such maneuvers and attempted to retreat. However, Jackson persisted and Carol Nance was accidentally knocked to the ground. Johnson then became upset and engaged in a wrestling — shoving encounter with Jackson.

As this was taking place, the Appellant and a companion, Horace Skeen, left the Executive Club to go to the Appellant’s vehicle parked on the same lot. The altercation between Johnson and Larry Jackson, which was described by Johnson, Nance and Bruce as being a mild, unheated affair, continued as the Appellant entered his car. Jackson and Johnson bumped into the Appellant’s vehicle. The Appellant emerged therefrom and fired a shot from a .22 cali-bre pistol which struck and fatally wounded Larry Jackson. The Appellant and Skeen drove away from the scene.

When the Appellant and Skeen reached a place called Four Way Inn, the Appellant gave Skeen the pistol. Skeen took the pistol to his grandmother’s home and put it on a shelf in a springhouse.

The Appellant, later on the day of May 9, 1975, went to Gatlinburg and stayed until May 11, 1975, at which time he returned to Knoxville and stayed overnight at the Hyatt Regency. The following day the Appellant turned himself in at the Knox County Office of the District Attorney General. In the interim, the Appellant had met with Skeen and discussed what had occurred and had read news accounts surrounding the event.

There is a dispute between the witnesses for the State and for the Appellant concerning the events that took place at the time of the shooting.

The State’s witnesses testified that the Appellant emerged from his car and said “I’ll teach you to bump into my car,” and shot Larry Jackson who was making no attack upon him.

The Appellant and Skeen testified, on the other hand, that the wrestlers fell heavily against the door on the Appellant’s vehicle as the Appellant was attempting to enter his car, that the Appellant asked them not to fight on his car, that Larry Jackson then cursed the Appellant and moved forward to attack him, and that it was at this time the fatal shot was fired.

The Appellant insisted at trial that he was being attacked and because of fear and his attempt to avoid being struck the shot was fired.

The Appellant claims the evidence shows he was acting in self-defense at the time of the killing or in the alternative the evidence shows only a crime of manslaughter rather than murder in the second (2nd) degree.

The jury, by their verdict, has rejected the claim of the Appellant on the issue of self-defense. The question of whether the Appellant acted in self-defense is to be determined by the jury when there is a dispute in the testimony of the witnesses. Henley v. State, 520 S.W.2d 361 (Tenn.Cr.App.1974).

The degree of homicide in the killing was for the jury to determine as shown by the facts. Tate v. State, 219 Tenn. 698, 413 S.W.2d 366 (1967); Massey v. State, 3 Tenn.Cr.App. 26, 456 S.W.2d 867 (1970). The essential element required to distinguish second (2nd) degree murder from voluntary manslaughter is the presence or absence of malice at the time of the killing. If the killing be not actuated by malice, then it is manslaughter. Malice may be inferred or presumed from the use of a deadly weapon resulting in death. Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863 (1966). The requisite malice may be shown from the manner in which a deadly weapon is handled, Everett v. State, 528 S.W.2d 25 (Tenn.1975); Sikes v. State, 524 S.W.2d 483 (Tenn.1975), or may be implied from all the circumstances surrounding the killing. State v. Johnson, 541 S.W.2d 417 (Tenn.1976).

In reaching their conclusion as to whether the Appellant acted in self-defense and as to the degree of homicide in the case, the jury was free to believe the testimony of some of the witnesses and not that of other witnesses, or they could believe a part of a witness’ testimony and reject part of a witness’ testimony. Batey v. State, 527 S.W.2d 148 (Tenn.Cr.App.1975).

In reaching their verdict, the credibility of the witnesses and the weight to be given their testimony was within the province of the jury. State v. Johnson, supra. To prevail on his attack upon the evidence, the Appellant must show that the evidence preponderates against the verdict of the jury. State v. Grace, 493 S.W.2d 474 (Tenn.1973). He has failed in this regard. The evidence supports the verdict of the jury. There was sufficient evidence to show the Appellant was motivated by malice in the killing.

The Appellant complains of the introduction of photographs of the body as it lay on the parking lot following the shooting. One of the photographs, marked Exhibit 8, shows the wound on the body. The other photograph, marked Exhibit 7, shows the body generally as it lay on the lot.

The Appellant raised an issue of self-defense and cross-examined the pathologist, who testified on direct examination about the wounds inflicted on the deceased and the direction of the entry into and the path of the bullet through the body. The pathologist referred to Exhibit 8 in discussing this wound during direct examination by the State.

The admissibility of photographs is for the trial judge to determine in the exercise of his discretion. Palmer v. State, 1 Tenn.Cr.App. 223, 435 S.W.2d 128 (1968); Freshwater v. State, 2 Tenn.Cr.App. 314, 453 S.W.2d 446 (1969), cert. den., 400 U.S. 840, 91 S.Ct. 80, 27 L.Ed.2d 74 (1971). The introduction of photographs to show the location of wounds is not an abuse of discretion even though the same facts are shown by other evidence. Morelock v. State, 3 Tenn.Cr.App. 292, 460 S.W.2d 861 (1970); Cagle v. State, 507 S.W.2d 121 (Tenn.Cr.App.1973).

In Hawkins v. State, 555 S.W.2d 876 (Tenn.Cr.App.1977), this Court said, at page 878:

“ . . . When photographs, gruesome in nature and likely to appeal to the emotions of the jury, are not probative of some contested factual issue they are not admissible. If probative, they are. See Palmer v. State, 1 Tenn.Cr.App. 223, 435 S.W.2d 128 (1968). In this, they are no different from other demonstrative evidence. If the evidence is necessary to develop some relevant point that the jury needs explained, it is admissible. If the evidence is not relevant or probative on some issue in dispute, it is not.”

In the case of State of Tennessee v. Banks, 564 S.W.2d 947 (Tenn. filed April 17, 1978), the Supreme Court discussed at length the use of photographs of the deceased in homicide cases. Pertinent to the issues in this case the Court said among other things:

“Photographs showing the injuries of the victim are properly admitted if the defendant admits he killed the victim but seeks to show a non-criminal homicide or that the offense was of a lesser degree than murder. . . . ” 564 S.W.2d 949.

The Supreme Court in Banks, in further discussion of the admissibility of photographs, established the rule as follows:

“The traditional rule is said to be that photographs of the corpse are admissible in murder prosecutions if they are relevant to the issues on trial, notwithstanding their gruesome and horrifying character. People v. Jenko, 410 Ill. 478, 102 N.E.2d 783 (1951). Conversely, if they are not relevant to prove some part of the prosecution’s case, they may not be admitted solely to inflame the jury and prejudice them against the defendant. Milam v. Commonwealth, Ky., 275 S.W.2d 921 (1955).
But even relevant evidence should not be admitted if its prejudicial effect outweighs its probative value. FED.R. EVID. 403; UNIFORM RULES OF EVIDENCE 45, supra.

Federal Rule 403 provides:

‘Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, a waste of time, or needless presentation of cumulative evidence.’

In the explanatory note to Rule 403, “unfair prejudice” is defined by the Advisory Committee as:

‘An undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’
See also Haddad v. Kuriger, Ky., 437 S.W.2d 524 (1968); State v. Martinez, 92 Idaho 183, 439 P.2d 691 (1968); Thibodeau v. Connecticut Co., 139 Conn. 9, 89 A.2d 223 (1952); Moeller v. Hauser, 237 Minn. 368, 54 N.W.2d 639, 57 A.L.R.2d 364 (1952).
We regard this rule as one that is fair and just and strikes a reasoned balance between probative value and unfair prejudice; we approve it as a proper guide to be followed by our courts in both criminal and civil cases.” 564 S.W.2d 950.

Exhibit 8 which showed the wound was relevant to the issue of self-defense and the degree of homicide. It was not, in our view, inflammatory and was thus admissible.

On the other hand, we are unable to determine any relevancy in Exhibit 7 which merely shows the body of the deceased lying in the parking lot. However, we are of the opinion that its effect was not sufficiently inflammatory to affect the verdict of the jury and was, therefore, harmless error. State v. Banks, supra.

The Appellant complains that the State should not have been allowed to introduce as an exhibit a shell casing which had been fired previously from the .22 pistol used in this case and which was found at the place of the Appellant’s business.

The State insisted that this was admissible to identify the weapon and connect the Appellant therewith. The Appellant, on the other hand, insisted that his offer to stipulate that the weapon offered was the weapon which fired the fatal shot and that he was the person who fired it obviated the introduction of evidence on this issue.

The Appellant further complains that the testimony concerning the steps taken to locate the person responsible for the killing should not have been allowed based on the stipulation he offered. The State insisted this evidence was admissible to show flight of the Appellant.

The State refused to accept the offer of the Appellant to stipulate on the gun and the identity of the Appellant. The Appellant insists the trial court should have accepted the stipulation.

We see no error in the refusal of the trial judge to accept the stipulations. It is within the discretion of the trial judge to accept or reject the stipulations and thus obviate proof on the matters contained therein. However, a trial judge may reject the stipulation and allow evidence to be presented if such evidence is relevant on the issues raised in the case in order that the jury may properly assess the case and reach a proper verdict. See IX Wigmore on Evidence § 2591 at 589 (3d Ed. 1940).

The Appellant raised an issue of self-defense. The evidence showing his travels and the placing of the gun in another’s possession following the incident was indicative of flight and was therefore admissible on the issue of self-defense and on the issue of whether the homicide was criminal in nature.

We are not convinced, however, that the State should have been allowed to introduce the spent cartridge found at the Appellant’s place of business. Contrary to the Appellant’s insistence, we do not think that this transgressed this Court’s ruling in this case on the previous appeal in which the case was reversed because the State showed previous, irrelevant criminal acts of the Appellant. See Wilson v. State, 548 S.W.2d 323 (Tenn.Cr.App.1976). In this trial there was no evidence introduced to show why this cartridge had been fired. However, this shell shed no light on the issues in this case. We think the State came perilously close to treading on forbidden ground and that they would have been wise to have avoided this area. However, we do not think that this influenced the verdict of the jury and was at most harmless error.

The voir dire of the jury did not constitute error. When attorneys wish to question the jury concerning the applicable law, the questions are often incomplete, inaccurate or, by the very nature of the case prior to the introduction of evidence, speculative. However, this is not a sufficient basis to upset a valid verdict.

We are more strongly persuaded that no error was committed on the basis of the action of the trial judge in this case in ruling upon objections to the voir dire of the jury.

The trial judge admonished the jury on more than one occasion that they would receive the law from him and that they would be guided by this rather than counsel’s statements thereon. Further, the trial judge accurately instructed the jury on the law applicable to this case. The verdict of the jury was supported by the law and the evidence. The voir dire did not affect the verdict.

WALKER, J., and W. WAYNE OLIVER, Special Judge, concur.


text:
    Johnny Mack BROWN, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 15, 1978.
    Certiorari Denied by Supreme Court Nov. 13, 1978.

      Glen B. Rutherford and James M. Moore, Jr., Knoxville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., James Russell Dedrick, William H. Crabtree, Asst. Dist. Attys. Gen., Knoxville, for appellee.
   OPINION

BYERS, Judge.

The Appellant was convicted of armed robbery and sentenced to twenty-five (25) years. He was also convicted of kidnapping and sentenced to four (4) to ten (10) years.

On February 5, 1977, at approximately 2:00 p. m. a man came to the door of a room in the Heart of Knoxville Motel which was occupied by Clifford Ballard and asked to use the phone, which he was allowed to do. Subsequently, the man returned to Ballard’s room and asked for a dime in order that he might use a pay phone. On a third visit to this room, this man was allowed to enter whereupon he placed a knife to Ballard’s throat. Ballard was tied hand and foot and placed in a closet in the room. The attacker then tied a cord around Ballard’s neck and attached one end of the cord around the metal hanging rack in the closet. The intruder then threatened to kill Ballard if he made any noise or told anyone what had occurred. The attacker then left the room. The man returned some time later and discovered that Ballard had attempted to free himself whereupon he again threatened Ballard and stuffed a towel into his mouth.

This man again left the room and returned some time later in company of a woman and another man. During this foray, the original intruder threatened to kill Ballard. The man and woman who had accompanied him on the last entry into Ballard s room told him not to do this and suggested that he merely rob Ballard. The man then took Ballard’s watch and nineteen dollars ($19.00) which he had. As the man who had done these nefarious deeds was leaving the room, the other man and woman said they would stay with Ballard because the man who had robbed him was mean and would kill him.

Ballard testified the Appellant was the man who bound him, placed him in the closet and subsequently robbed him. No evidence was offered to refute this testimony.

The police investigation revealed that the man and woman who accompanied the Appellant on the third entry into Ballard’s room were the Appellant’s brother and sister-in-law.

The Appellant says it was error to allow Ballard to testify to the statements made by the Appellant’s brother and sister-in-law about staying with him because the Appellant was mean and would kill him. Appellant also says the offense of kidnapping was not shown because there was no evidence of asportation and the convictions for kidnapping and armed robbery cannot stand because they arise from one transaction and would thus be a violation of the double jeopardy prohibition.

The judgments are affirmed.

We are of the opinion the testimony by Ballard concerning the remarks made by Appellant’s brother and sister-in-law are admissible.

When these three people entered Ballard’s room, they appeared to be acting in concert. One of them suggested the Appellant rob rather than kill Ballard. A climate of fear was obviously established by the Appellant’s previous mistreatment of Ballard and these people exacerbated it. Their statements were made so close to the commission of the crime as to be inseparable therefrom, and were made while the Appellant was present. We do not think this assignment requires extended discussion to show that the statements were admissible as part of the res gestae.

The Appellant’s attack upon the conviction for kidnapping is centered upon the assertion that in order for a conviction to stand for this offense there must be aspor-tation, which he says is not shown in this case. This assertion is made upon the authority of McCracken v. State, 489 S.W.2d 48 (Tenn.Cr.App.1972). The State responds that McCracken is not authority for the proposition that asportation is a necessary element in cases of kidnapping, but that the expression stating this proposition in McCracken is limited to that case because of a defect said to have been present in the indictment. In the alternative, the State suggests if McCracken was intended to adopt asportation as a broad requirement in cases of kidnapping, it is an unfortunate and erroneous statement of the law of this State. The State asserts asportation is not required in a case of kidnapping and relies upon Cowan v. State, 208 Tenn. 512, 347 S.W.2d 37 (1961) in support of their position.

McCracken does in fact broadly state that asportation is required in a prosecution for kidnapping under T.C.A. § 39-2601 and thus supports the Appellant’s position. On the other hand, Cowan supports the position of the State that asportation is not a necessary element of kidnapping under our statute.

We are of the opinion that neither asportation nor secrecy are essential elements in prosecutions under T.C.A. § 39-2601.

The prosecution in this case was based on T.C.A. § 39-2601 which is as follows:

“39-2601. Definition — Penalty.—Any person who forcibly or unlawfully confines, inveigles, or entices away another, with the intent to cause him to be secretly confined, or imprisoned against his will, or to be sent out of the state against his will, must, on conviction, be imprisoned in the penitentiary for not less than two (2) years nor more than ten (10) years. [Code 1932, § 10794.]”

This statute first appeared in the 1932 revision of the code as section 10794, Shannon’s Code of Tennessee 1932.

Prior to 1932, our statutes which were generally indexed or considered as dealing with kidnapping prohibited the kidnapping of children under the age of twelve (12), Thompson’s Shannon’s Code 1896, § 4619, and children under the age of sixteen (16), Shannon’s Code 1917, § 6465, and the seizure and confinement of free persons with the intent to make them slaves, Tennessee Code of 1858, Article 4, Section 4619-4625; Thompson and Stegers’ Statutes of Tennessee 1871, Article 4, 4619-4628.

Presumably, any prosecutions for kidnapping other than those statutorily defined prior to 1932 would be under the common law definition. We are unable to find, however, any reported cases dealing with kidnapping prior to adoption of the present statute with the exception of Hicks v. State, 158 Tenn. 204, 12 S.W.2d 385 (1928), which was prosecuted under a statute involving the kidnapping of children. The reported cases dealing with kidnapping in the context of this case are subsequent to the enactment of T.C.A. § 39-2601, the pertinent cases being Cowan in 1961 and McCracken in 1972.

The McCracken case and several cases of our sister states founded their analysis of what elements are required in a case of kidnapping upon the common law requirements. At common law, kidnapping was distinguished from the offense of false imprisonment by the element of asportation. Wharton’s Law of Criminal Procedure, Vol. I, p. 735. The “carrying away” had to be beyond the boundaries of the realm and thus beyond the reach of the law of the land so the abducted person could not apply to the authorities for assistance in his plight.

The common law rule has been significantly modified by statute in several states. No longer is it required that the asportation be beyond a natural or regional boundary. See “A Rationale of the Law of Kidnapping”, 53 Columbia L.Rev. 540.

Another modification frequently seen in legislation dealing with kidnapping is that no distinction is made between kidnapping and false imprisonment. Most states, including Tennessee, do not have a separate false imprisonment statute.

We are of the opinion that T.C.A. § 39-2601 combines the common law offenses of kidnapping and false imprisonment. Kidnapping is now a statutory crime; the application of this statute should not be so bound by the common law rule as to allow the purpose of the statute to be frustrated. Rather, this statute should be construed to carry out the intent of the Legislature and such a construction should not be strained or artificial. State ex rel. Webster v. Daugherty, 530 S.W.2d 81 (Tenn.Ct.App.1975).

In construing a statute similar to ours, Minnesota, Montana and Alabama determined that it was the intent with which the confinement was done that was the essential element of the offense. Asportation and secrecy were not required. State v. Croatt, 227 Minn. 185, 34 N.W.2d 716 (1948); Ex parte McDonald, 50 Mont. 348, 146 P. 942 (1915); Doss v. Alabama, 220 Ala. 30, 123 So. 231 (1929). Other states, relying on the common law, have construed their statutes to require secrecy or asportation or both. Am.Jur.2d, Abduction or Kidnapping, § 14, p. 168-170; Wharton’s Criminal Law and Procedure, § 371, p. 375; 68 A.L.R. 712.

While asportation and secrecy were elements of the crime of kidnapping at the common law, it is our view that under our statute the intent with which the perpetrator acts is the controlling element of this crime.

Under T.C.A. § 39-2601, if a person forcibly or unlawfully confines another, or inveigles or entices another away, with the intent to (1) cause him to be secretly confined, or (2) cause him to be imprisoned against his will, or (3) cause him to be sent out of the state against his will, the offense is complete. The proscribed acts are disjunctive and independent of one another.

The confinement or enticement may be done with the intent to accomplish only one of the purposes enumerated in the statute, or it may be done with the intent to accomplish all or any combination of these purposes. Before a conviction can be had the indictment must aver, and the proof must show, the intent with which the confinement or enticement was done. The intent is a question for the jury and may be inferred from all the facts and circumstances shown by the proof. Hall v. State, 490 S.W.2d 495 (Tenn.1973).

It is not necessary for the intended acts to be fully realized. It is not necessary for the victim to be moved any distance, or even for the victim to actually be secretly confined. The crime is complete if the perpetrator forcibly or unlawfully confines the victim, or inveigles or entices him away, with the intent to do the acts proscribed. If the purpose is achieved, the offense is, of course, completed; but we hold that actual asportation or actual secret confinement is not essential to the offense if the requisite intent is shown. The intent is the essential element. Doss v. Alabama, supra.

If asportation and secrecy were required, a person could forcibly or unlawfully confine another, or inveigle or entice them away for one of the purposes enumerated in the statute subjecting them to dangers inherent in such interference with the rights of a person, and be guilty only of assault and battery or some other lesser crime merely because they were unable to effect secrecy or because it was not necessary to transport the victim to another location to accomplish their purpose.

Statements to the effect that asportation and secrecy are required to show a violation of T.C.A. § 39-2601 come for the most part from McCracken v. State, supra, which relied on Doss v. Alabama, supra. However, in Doss the Alabama Court, in construing a statute identical to T.C.A. § 39-2601, was of the opinion that the intent with which the victim was confined or inveigled or enticed away was an essential element of the offense. Nowhere in the Doss opinion is as-portation made the controlling element of the offense.

McCracken further cited Cowan, supra, as imposing secrecy as an essential element to show a violation of T.C.A. § 39-2601. Cow-an did not make secrecy an essential element of the offense denounced by the statute. The Court in Cowan related the facts of the confinement which showed the people were held in a vehicle during darkness on a remote roadway. The setting where the victims were held was created by them. They voluntarily drove to this area at night time. The accused found them where they were parked; he confined them there without moving them. The secrecy of the holding was inherent in the setting and time selected by the victims. The secrecy was incidental to the unlawful confinement and was not created by the accused. Cowan did not adopt the requirements of secrecy or asportation, notwithstanding statements in our cases to the contrary.

We conclude, therefore, that the essential element necessary to show a violation of T.C.A. § 39-2601 is the intent with which one confines another or inveigles or entices another away. Neither actual as-portation nor actual secret confinement of the victim need be shown if the unlawful intent to accomplish one of the proscribed purposes exists.

Some states have been reluctant to depart from a requirement of asportation or secrecy for fear that police officers or other officials might be subjected to prosecution when making arrests which later are determined to be unlawful or otherwise improper. However, where the unlawful intent is not present no criminal liability would attach in those situations.

In this case the binding of the victim and placing him in the closet is sufficient to show a violation of T.C.A. § 39-2601 if asportation and secrecy were required. However, as we have stated, we are of the opinion that these were not essential to show a violation of this statute.

The Appellant’s claim that the State should have been, required to elect whether to proceed on a charge of robbery or a charge of violation of T.C.A. § 39-2601 is not supported by the facts of this case.

If the facts on which the kidnapping charge is based are an integral part or essential element of the other felony being committed, then a separate conviction for the two offenses cannot be had. People v. Adams, 34 Mich.App. 546, 192 N.W.2d 19 (1971). If the facts of the kidnapping are separate and apart from the other felony and are not an integral part or essential element of the other felony, then two convictions may be had. Cherry v. State, 539 S.W.2d 51 (Tenn.Cr.App.1976); Jackson v. State, 540 S.W.2d 275 (Tenn.Cr.App.1976).

. In this case, the acts of violation of T.C.A. § 39-2601 were completed prior to and were unconnected with an essential element of the robbery. Therefore, the State could seek and secure a separate conviction without violating the double jeopardy rule. State v. Black, 524 S.W.2d 913 (Tenn.1975).

O’BRIEN and DAUGHTREY, JJ., concur.

      . This statute was adopted by the Legislature, along with other statutes as proposed by the commission on revision, without a separate and specific act on the subject being passed.


author: POPE, Justice.

text:
    The STATE of Texas, Petitioner, v. Mary A. Stephenson BAKER et al., Respondents.
    No. B-7344.
    Supreme Court of Texas.
    Nov. 29, 1978.
    John L. Hill, Atty. Gen., Dean Arrington and Watson C. Arnold, Asst. Attys. Gen., Austin, for petitioner.
    Garner, Vickers & Purdom, Robert E. Garner, Lubbock, Kolander & Templeton, Amarillo, for respondents.
   POPE, Justice.

The question presented is whether the trial court erred in a series of rulings which permitted the condemnees to introduce evidence about the condemnees’ use of water from a water well located on a neighbor’s tract of land. The State of Texas condemned a little more than five acres of land belonging jointly to Mrs. Baker and her children, the Stephensons. The part taken was for the purpose of enlarging the right-of-way for I.H. 27. The condemnees received $16,662.60 for the part taken. The State complains of the award of $64,900.00 for damages to the remainder, which consisted of a little more than 107 acres of farmland. The court of civil appeals in an unpublished opinion affirmed the judgment. We reverse the judgments of the courts below.

There was an irrigation well located on the five-acre tract that the State condemned. In 1972, Mrs. Baker and the Ste-phensons sold thirty acres of their adjoining land to Larry Best. There was also a good well located on that tract. The State, in a separate condemnation suit, was taking a part of the Best land, including the well. The Best well was described as a four-inch well capable of producing 175 gallons a minute.

The trial court overruled the State’s motion in limine which sought to exclude information that Roy Stephenson used the water from the Best well to irrigate the Stephenson farm. The Stephensons were using the Best well under an oral lease agreement which would expire in thirty days. At the trial, the State renewed and kept alive its many objections to the repeated references by the condemnees to the availability of the water from the Best well. The basis for admitting the evidence was explained: “not as a measure or an item of damages but as an element of information . to guide the jury in arriving at the correct measure of damages.” It is our opinion that the jury was led to believe that the condemnees were losing not just one well, but two wells, their own and the one they had already sold to Mr. Best.

Land has some value as dry land; it has a greater value as irrigated land. All of the Stephensons’ acreage was dependent upon irrigation wells. There was evidence that the Stephenson well that was taken by the State in this action was not capable of fully watering all of the remainder tract of 107 acres. Several drilling efforts to find water on the remainder proved unsuccessful. Mr. Roy Stephenson testified that by use of the water drawn only from the Stephenson well, all of the remainder tract could be watered, but, in his words, “we had to crank way early to get water over but we covered awful light water . . . .” The information, however, that the jury received was that all of the Stephenson tract was good, productive, and fully irrigated land. The Stephensons testified and produced proof that they cultivated the entire remainder and irrigated all of it by the commingled water from both the Stephenson and Best wells. They proved that all of the remainder tract produced cotton, wheat, seed milo maize, regular milo maize, and sunflowers. They had to irrigate the crops as many as three times a year, and they produced two crops a year. The seed milo requires special cultivation and more water than ordinary milo. The Stephensons recounted the crop yields and prices they received from the sale of the irrigated crops for the entire 107 acres during 1973, 1974, and 1975. The information, therefore, which was admitted to guide the jury in arriving at damages, portrayed bountiful crops that were produced by the water supply from the water wells on and off the Stephenson tract.

In State v. Baker Bros. Nursery, 366 S.W.2d 212 (Tex.1963), this court in a kindred case held that this kind of evidence was inadmissible. The defendant nursery complained about the trial court’s rejection of evidence that the nursery had an available supply of water from a lake in the vicinity for its condemned and remainder lands. The condemnee offered a letter from the Mayor of Arlington which granted permission for the condemnee to take water from Lake Arlington to irrigate its lands. This court approved the exclusion of the evidence. One reason expressed for the exclusion was that there was no evidence of a binding contract which gave the con-demnee the right to use water from the lake. That is the same factual situation in the present case.

The abundant evidence in this record that the condemnee was using water from the Best well was harmful for two reasons. A partially irrigated remainder was represented to the jury as fully irrigated. This meant that land of limited productivity could be valued as land of high productivity. Perhaps more harmful was the evidence that, not only was the Stephenson well taken for the right-of-way, the Best well was also in the new right-of-way, and it too would be lost as a source of water for the Stephensons’ remainder tract.

The condemnee produced some evidence which shows that the one good well on the Stephenson tract could irrigate the remainder “but we covered awful light water . .” The question is not whether there is some evidence in the record which supports the finding; the question is whether, with that brief and weak testimony, there was harm by filling the record full of other testimony that was hurtful.

At the trial, the State made its objection when Mr. Stephenson first began testifying about his use of the water from the Best well. The trial court, at that stage, permitted the evidence about the oral lease of the water from the Best tract. When Mr. Stephenson was later asked again if he had permission to extract water from the Best tract and put it in his irrigation system, the State repeated the objection. The court again overruled the objection and Mr. Stephenson testified about his use of the water on both the Stephenson remainder and the Best tract. The State then objected a third time.

When Mr. Stephenson was asked to testify about his cultivation of the Best tract and the use of the water from the Best well, the State objected and moved for mistrial. In the motion for mistrial, the State called attention to the emphasis that was being made of the available water supply from the Best well by stating, “its gone to that point [of mistrial] and they keep plug-gin’ away and pluggin’ away on it, and we think its highly prejudicial to us and we’re going to ask for a mistrial.” Then, Mr. Stephenson, having proved that they had an ample supply of water from their own and the Best lands, testified about the high productivity of the irrigated remainder. Still later, when Mr. Stephenson testified about his cultivation of the Best tract and other tracts in the vicinity, the State objected and again moved for mistrial. The trial court at that point permitted the testimony about his cultivation of other lands “in the immediate vicinity but I don’t want to get things plumb out of hand going all over the county.”

Without detailing each incident, the record shows that the State made other objections each time the condemnees returned to the evidence about water wells, crops, and lands other than what was involved in the suit on trial. Finally the condemnees’ counsel asked the court to give the State “a running objection and maybe we can get on with it.” The State protected its record.

One may ask: If the Stephensons, as condemnees, had plenty of water from their own well, why did they make the oral agreement to use the water from the Best well? If the evidence is now regarded by the Stephensons as harmless, why did they consider it so important that they emphasized and presented it again and again to the jury? The evidence, in our judgment, was harmful.

The judgments of the courts below are reversed and the cause is remanded to the trial court.