author: RENDLEN, Judge.

text:
    STATE of Missouri, Respondent, v. Brian Keith MOORE, Appellant.
    No. 60867.
    Supreme Court of Missouri, En Banc.
    May 17, 1979.

      Christelle Adelman-Adler, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   RENDLEN, Judge.

Brian Keith Moore, convicted of first degree murder and attempted robbery in the first degree by means of a dangerous and deadly weapon, has appealed contending the trial court erred (1) in failing to discharge him because his warrantless arrest was without probable cause, (2) in failing to suppress certain evidence and identification testimony allegedly procured by illegal means, (3) in failing to instruct the jury on second degree murder and manslaughter, and (4) in submitting the case under the felony-murder rule of § 559.010, RSMo 1969, because the bystander killed during the attempted robbery in which appellant participated was shot not by appellant but by another bystander. The Court of Appeals, affirming the robbery conviction, denied appellant’s first three contentions but transferred the case, after opinion, under Rule 83.02 for our consideration of point four. Portions of the Court of Appeals’ opinion are incorporated without quotation marks. Deciding the cause as though here on original appeal, Rule 83.09, art. V, § 10, Constitution of Missouri, we affirm.

During the late evening of July 28, 1975, appellant and two other men entered the “Emergency Room Lounge,” a tavern located in the City of St. Louis, and after positioning themselves at various places in the room, appellant, carrying a shotgun, announced a “holdup.” One accomplice, Ross Hogan, drew a pistol and fired at Albert “Rip” Williams, a customer sitting in a booth, as Williams was drawing a pistol from his waistband. Hogan’s shot missed Williams but one of two return shots fired by Williams struck Ross Hogan. This was followed by a blast from appellant’s shotgun which struck Williams on the head and shoulder knocking him to the floor. In that position Williams saw a man’s foot, and believing it belonged to one of the robbers, he shot it.

As the robbers withdrew from the aborted robbery through the front door they fired several more shots into the barroom, one of which wounded Williams again. After they had fled, it was discovered that two other customers had been caught in the gunfire. One received a “shotgun burn” and the other, Lawrence Meadows, had been fatally wounded in the head by two bullets. At trial, a police ballistics expert identified the fatal bullet as coming from Williams’ gun.

Two days after the incident, two detectives contacted an informant with whom they had never worked, but about whom they were familiar. The informant told the detectives that he had learned from a relative of appellant that the perpetrators of the attempted robbery were Ross Hogan, a man named Carl, and appellant. The police were aware of Hogan’s involvement, as he had been arrested and was hospitalized for treatment of shotgun wounds. The informant advised the police that appellant had been shot in the right foot and was on crutches; that he could be found in either the 4100 block of Ashland Avenue or the 4300 block of Labadie. The same day they received the information, the two detectives saw appellant in the 4100 block of Ashland with a bandaged right foot and walking with the aid of crutches. When approached by the officers, appellant, who had no identification papers, seemed nervous and gave the alias of Joseph Madison, stating that he was 17 years old. He attributed his injury to having stepped on a rusty nail but when the police removed his shoe they noticed two wounds, one on each side of his ankle. Appellant was arrested and taken to a hospital for treatment. His shoe, held for evidence, was punctured in the places corresponding with his ankle wounds.

A physician at the hospital confirmed that appellant’s ankle injury was a gunshot wound and appellant then gave his correct name and admitted his participation in the robbery but denied any shooting. When police learned from his mother that appellant was 16 years of age, he was immediately taken to the Juvenile Detention Center. Appellant was subsequently placed in a lineup and identified by two witnesses as one of the robbers.

Appellant initially argues that the trial court erred in failing to “discharge” him by reason of the State’s failure to establish probable cause for his warrantless arrest. This point is without merit. An illegal arrest does not divest the trial court of jurisdiction to try the case. Watson v. State, 475 S.W.2d 8, 12 (Mo.1972). As a part of this argument, appellant also contends that a statement was illegally taken from him “prior to taking him to the juvenile detention center.” This portion of the argument too must fail because it is conceded that the “statement” was not used in evidence.

Appellant’s second contention is that certain physical evidence (his shoe with the bullet punctures) and identification testimony should have been suppressed as having been obtained in connection with the allegedly illegal arrest. This requires a determination of whether there was probable cause for appellant’s arrest. “Probable cause” is said to exist where the facts and circumstances within the officers’ knowledge and of which they have reliable and trustworthy information would warrant a man of reasonable caution to believe that the person being arrested had committed the offense for which he has been placed in custody. Ker v. California, 374 U.S. 23, 34-35, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Wiley, 522 S.W.2d 281, 287 (Mo. banc 1975).

Appellant argues that there was no reasonable ground for his warrantless arrest, particularly since the arresting officer had not personally known the informant nor had personal experience with him. We disagree. As stated in State v. Wiley, 522 S.W.2d at 288: “There is no absolute requirement that the informant be one of previous reliability. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

“The true inquiry therefore is whether the informant’s present information is reliable. As long as the corroboration of the information through other sources, even though the matters are innocuous, reduces the chances of a ‘reckless or prevaricating tale,’ the information, even though hearsay, may form the basis of probable cause for an arrest.”

Under the circumstances of this case, we have no doubt that probable cause existed for appellant’s arrest. The arresting officers had been assigned the specific task of investigating the crime which had occurred two days earlier involving three youths, one of whom had been shot in the foot and had been observed limping from the scene of the crime. Another of the robbers was then in police custody. The informant had dealt with police previously, albeit not the particular arresting officers, but they were aware of his past contributions. The informant, attributing his information to a relative of appellant, advised the police that appellant had been shot in the right foot, was on crutches and could be found in the 4100 block of Ashland. And exactly as told, the police found appellant, complete with crutches and bandaged right foot, in the 4100 block of Ashland. He fit the general description of one of the robbers and gave an implausible explanation for his injury. The information accurately detailed by the informant was fully corroborated by the personal observation of the arresting officers. The accusation of appellant is thus readily distinguished from the rumor or vague circumstances decried in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), upon which appellant relies. The arrest was lawful. State v. Wiley; State v. Kent, 535 S.W.2d 545 (Mo.App.1976). Hence, the seizure of the evidence and its use at trial was lawful. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); Wilkinson v. State, 461 S.W.2d 283 (Mo.1970).

Appellant also asserts State v. Wade, 531 S.W.2d 726 (Mo. banc 1976), as a purported barrier to the use by the State of his shoe and identification testimony linking him to the crime. Wade holds that it is reversible error to admit testimony regarding a confession of a juvenile offender made prior to being taken to the juvenile authorities. That case has no application here because, as previously noted, the State refrained from introducing or using defendant’s in-culpatory statements.

Appellant cites State v. Ross, 516 S.W.2d 311 (Mo.App.1974), and argues that the shoe should have been excluded as having been obtained as a result of his inadmissible confession. Ross is readily distinguishable, because the taking of the shoe was not the result of and bore no relation to appellant’s voluntarily suppressed confession. The shoe with the bullet holes was inherently suspicious, whereas in Ross, police were led to evidence only by reason of the juvenile’s confession. The shoe, not obtained by reason of anything illegally said or gained, was seized pursuant to a lawful arrest and thus admissible.

Appellant next urges that the trial court erred in failing to instruct the jury on second degree murder and manslaughter. He asserts that felony-murder under the then applicable murder statute, § 559.010, RSMo 1969, necessarily embodied the lesser homicides.

The submission of lesser homicides under an information drawn as here under § 559.-010 was at the time of appellant’s trial governed by this Court’s pattern instructions approved January 1, 1975, effective March 1, 1975. Though the charge was made under the general first degree murder section, 559.010, only felony-murder was submitted to the jury, not conventional first degree murder. Caveat “a” in the Notes on Use to the form of MAI-CR 6.02 then in effect stated,

Where felony-murder ... is the only murder submitted . . . lesser offense instructions will not be given automatically. Ordinarily, where there is sufficient evidence to warrant the giving of a felony murder instruction, there will be no evidence to support the submission of a lesser offense.
There may be exceptional cases, however, where there is evidence warranting a finding that the murder was not committed in the perpetration of or attempt to commit the felony relied upon to authorize a felony-murder instruction . But in the absence of evidence to justify it a lesser offense instruction should not be given where felony-murder alone is submitted. State v. Ford, 495 S.W.2d 408 (Mo.1975). (Citations omitted and emphasis in original.)

See also State v. Stapleton, 518 S.W.2d 292, 301 n. 1 (Mo. banc 1975). Appellant can point to no evidence permitting a finding that “the murder was not committed in the perpetration of or attempt to commit the felony”; thus there was no error in refusing to submit instructions on second degree murder and manslaughter and his claim must necessarily fail.

Finally appellant contends, “Defendant’s actions do not fulfill the requirements of V.A.M.S. 559.010 in that a bullet from defendant’s gun did not take the victim’s life, and in order to be guilty of homicide, the act of homicide must be done by defendant,” and concludes outright reversal is required. Stated otherwise, appellant claims that felony-murder requires a finding that he or one of his accomplices fired the shot that killed Meadows. This Court considered the felony-murder rule under facts similar to the case at bar in State v. Majors, 237 S.W. 486 (Mo.1922). Majors and two accomplices entered a room where the occupants were gambling. They robbed the gamblers and in the course of the robbery a gun battle ensued between one of the accomplices and Wade, a bystander. During the shooting, Gardner, one of the gamblers, was fatally wounded. The jury was instructed that if it found that the defendant or one of his accomplices shot the deceased in an effort to commit a crime, he would be guilty of murder. The murder conviction was reversed and the case remanded because the trial court failed to give converse instructions proffered by defendant which required a verdict of not guilty if the jury found that the fatal shot was fired by someone other than the defendant or someone acting in concert with him. The court without elaboration stated that such an instruction was a correct declaration of the law.

More recently, in State v. Glenn, 429 S.W.2d 225 (Mo.1968), the defendant contested his conviction under the felony-murder rule on the ground that the murder instruction did not require a finding that he fired the fatal shot. Affirming, the court said that it “would have been preferable for the instruction to have included such a finding,” but when considered with another instruction which submitted murder in the conventional manner and evidence from which an inference could be drawn that the defendant had fired the fatal shot, the felony-murder instruction was not prejudicially erroneous. Glenn, 429 S.W.2d at 236. In neither Majors nor Glenn do we find a statement of the rationale for the requirement that the fatal act be performed by defendant or someone acting in concert with him.

It is well established in this state that any person involved in the underlying felony may be held accountable for every homicide committed in the perpetration of the felony even though the fatal act was committed by a co-felon. State v. Paxton, 453 S.W.2d 923 (Mo.1970); State v. Messino, 325 Mo. 743, 30 S.W.2d 750 (1930); State v. Nasello, 325 Mo. 442, 30 S.W.2d 132 (1930); State v. Hart, 292 Mo. 74, 237 S.W. 473 (1922). Thus appellant’s assertion that under § 559.010, RSMo 1969, “the act of homicide must be done by the defendant” before he may be found guilty is clearly incorrect. It has also been held in State v. Adams, 339 Mo. 926, 98 S.W.2d 632, 637 (1936):

that when the homicide is within the res gestae of the initial crime and is an emanation thereof, it is committed in the perpetration of that crime in the statutory sense.

See also State v. Messino, 325 Mo. 743, 30 S.W.2d 750 (1930); State v. Mullen, 532 S.W.2d 794 (Mo.App.1975); State v. McClain, 531 S.W.2d 40 (Mo.App.1975). In all of these cases there was sufficient evidence from which to draw an inference that the killing had been done at the hand of the defendant or someone acting in concert with him and not by a third person as in Majors. Therefore, the question to be decided is whether the felony-murder rule applies to the circumstances of this case where the evidence clearly indicates that the fatal shot was not fired by the appellant or an accomplice but by a bystander attempting to thwart the robbery.

In State v. Glover, 330 Mo. 709, 50 S.W.2d 1049 (1932), the defendant was convicted of murder in the first degree for setting a fire which killed a fireman who was fighting the flames. On appeal he contended that the killing was unintentional and that he did not foresee that anyone would be killed as a result of the arson. The court affirmed, reasoning, 50 S.W.2d at 1053:

[E]ven though the homicide be unintentional yet, if it be committed in the course of perpetrating the felony, and is a natural and proximate result thereof, such as the defendant reasonably was bound to anticipate — and therefore especially where the felony is dangerous and betokens a reckless disregard of human life — the homicide will be first degree murder under the statute. (Emphasis ours.)

The Illinois Supreme Court adopted the foreseeability concept in People v. Hickman, 59 Ill.2d 89, 319 N.E.2d 511, cert. denied, 421 U.S. 913, 95 S.Ct. 1571, 43 L.Ed.2d 779 (1974). Hickman appealed from a felony-murder conviction claiming that he could not be guilty of murder where a pursuing police officer was mistakenly shot and killed by a fellow officer also in pursuit of the defendant and his accomplices. The court quoted with approval from People v. Payne, 359 Ill. 246, 194 N.E. 539, 543 (1935):

It reasonably might be anticipated that an attempted robbery would meet with resistance during which the victim might be shot either by himself or some one else in attempting to prevent the robbery and those attempting to perpetrate the robbery would be guilty of murder. (Emphasis ours.)

In Payne, the evidence was inconclusive as to whether the deceased, a robbery victim, was shot by his brother, also a robbery victim, or by one of the defendant’s accomplices.

On facts similar to Hickman, the Michigan courts have also affirmed first degree murder convictions. People v. Podolski, 332 Mich. 508, 52 N.W.2d 201, cert. denied, 344 U.S. 845, 73 S.Ct. 62, 97 L.Ed. 657 (1952); People v. Smith, 56 Mich.App. 560, 224 N.W.2d 676 (1974). In Podolski, relying on a proximate cause rationale, the court stated, 52 N.W.2d at 204:

When a defendant deliberately engenders an affray, deliberately using therein a lethal weapon, it must be considered to be within his intent that death should result from the affray as a natural and probable consequence of his acts, where the death is directly attributable to the affray and not resulting from some independent intervening cause. (Emphasis ours.)

In Johnson v. State, 386 P.2d 336 (Okl.Cr.App.1963), the evidence was inconclusive as to the source of the bullet which killed the deceased police officer. The court approved instructions which stated in part that “if you find . . . that such felony set in motion a chain of events which were or should have been within his contemplation when the motion was instigated, it is then immaterial as to whether the defendant fired the fatal bullet.” 386 P.2d at 339.

Similarly a Texas court in Miers v. State, 157 Tex.Cr.App. 572, 251 S.W.2d 404 (1952), rejected the defendant’s proffered instruction that the jury find him not guilty if it did not find that he had fired the fatal shot. The evidence indicated that the deceased bystander either shot himself or was shot by the defendant while trying to thwart the latter’s escape from the robbery scene.

In the case at bar, appellant and his accomplices entered the tavern armed with a shotgun and a pistol with the intent to rob the bartender. This occurred at a time when it was open for business and customers were present. Witnessing these facts and the announcement of a holdup, Williams pulled a pistol from his waistband and when Hogan fired at him, he returned the fire. It was reasonably foreseeable that the robbery attempt would meet resistance. This set into motion the chain of events which caused the death of Lawrence Meadows. Whether the fatal act was done by the defendant, an accomplice, another victim, or a bystander is, under the facts here, not controlling. The significant factor is whether the death was the natural and proximate result of the acts of the appellant or of an accomplice. Of course, an independent intervening cause might relieve appellant of criminal responsibility for the killing. But in this case the act of Williams was not an independent act because it was the attempted robbery by the appellant and his accomplices which provoked Williams to pull the pistol he was carrying from his waistband and it was the shot fired from one of the felons which brought Williams’ return fire.

Insofar as Majors and Glenn are inconsistent with this opinion, they must no longer be followed. The judgment of the circuit court of the City of St. Louis is affirmed.

MORGAN, C. J., BARDGETT, DONNELLY, SEILER and SIMEONE, JJ., and FINCH, Senior Judge, concur.

WELLIVER, J., not participating because not a member of the Court when cause was submitted.

      . Section 559.010 was repealed effective after the commission of the homicide at issue and controlled the prosecution of Moore’s case. Laws 1975, p. 408.

      . Although appellant’s trial took place after revisions in the MAI-CR 6.00 series effective September 28, 1975, those revisions applied only to trials for homicides committed on or after that date in order to conform with the 1975 legislative revisions to the homicide statutes. Laws 1975, p. 411.


source: Caselaw Access Project

author: FINCH, Senior Judge. RENDLEN, Judge,

license: Public Domain

text:
    STATE ex rel. Phillip Anthony CURTIS, Relator, v. The Honorable John CROW, Judge, 31st Judicial Circuit, Greene County, Respondent.
    No. 60503.
    Supreme Court of Missouri, En Banc.
    May 17, 1979.

      Ronald Holmes, Yates, Mauck & Robi-nett, Inc., Springfield, for relator.
    Lincoln J. Knauer, Jr., Farrington, Curtis, Knauer, Hart & Garrison, Springfield, for respondent.
   FINCH, Senior Judge.

This action in prohibition arises out of discovery proceedings by Springfield Newspapers, Inc., in a libel action instituted against it by the relator herein. Relator seeks to prohibit respondent judge from enforcing a portion of an order that the prosecuting attorney of Greene County produce his files concerning two earlier cases involving relator. We now make permanent the provisional rule in prohibition previously entered.

Relator’s petition in his libel suit is stated in eleven counts. Each count relates to a separate statement appearing in the newspaper concerning plaintiff’s arrest on suspicion of child abuse. The allegedly libelous statements recited that relator had inflicted venereal disease on his 3-year-old son by reason of buggery. Plaintiff alleged each statement to be libelous per se and claimed numerous items of actual damages. These include mental anguish, suffering and distress, inability to gain work on occasions, inability to gain an advancement in employment, loss of esteem, society and the benefit of personal association from trust, and various other injuries. For purposes of this action in prohibition, the most significant allegation of damage is impairment of relator’s reputation and standing in the community. The newspaper’s answer to the petition admitted each statement but denied all allegations that such statements were libelous or that they caused the injuries alleged.

On November 9,1977, defendant newspaper served relator with a notice to take depositions and a carbon copy of a subpoena duces tecum addressed to James M. Kelly, the prosecuting attorney for Greene County. The subpoena ordered Mr. Kelly to produce at this deposition certain records and documents, allegedly kept in his official capacity as prosecutor, which relate to two separate incidents in the relator’s past. The subpoena first directed Mr. Kelly to produce “[a]ll notes, pleadings, trial preparation materials, records of interviews, letters, correspondence, and all other writings and/or tape recordings or transcripts thereof now in [his] possession, whether originally prepared by [him] or [his] staff or forwarded to [him] by others, pertaining to the case of State of Missouri v. Phillip Anthony Curtis * * *.” a 1975 case. This case was a prosecution for attempted buggery which was dismissed by the Magistrate Court of Greene County after a preliminary hearing. It was this incident which allegedly was incorrectly reported in the newspaper’s articles. The subpoena also commanded Mr. Kelly to bring “all records, notes, memoranda, written documents of whatever nature, whether originally compiled by [him] or [his] staff, or that of [his] predecessor, or whether forwarded to [his] predecessor in office by other law enforcement personnel, concerning the investigation, arrest, and prosecution of Phillip Anthony Curtis for the possession, use or sale or attempted sale of prescribed or scheduled narcotics or drugs in any form whatever.”

Upon receipt of the notice to take depositions and a copy of the subpoena duces tecum, relator’s counsel filed in the circuit court a motion for protective order and a motion to quash the subpoena duces tecum. Respondent denied that motion. Thereafter, Mr. Kelly appeared for the taking of his deposition but refused to produce the documents specified in the subpoena duces te-cum. He explained that in his opinion the records of the prosecution for attempted buggery were, or might to considered to be, “closed records” under the provisions of § 610.100 and that, according to the records of the circuit clerk, an order to expunge pursuant to § 195.290 had been entered in the case involving narcotics or drugs. He stated that he would not produce his own records as to these cases unless ordered to do so.

Subsequently, the newspaper filed a motion for enforcement of discovery in the libel case. The respondent sustained that motion, ordering Mr. Kelly to appear for deposition and under pain of contempt to bring with him for inspection, copying and use in the deposition all material listed in the subpoena duces tecum.

Relator filed a petition for prohibition in the Missouri Court of Appeals, Southern District. That petition was denied and he then filed a petition in this court seeking to prohibit respondent from enforcing that part of the order which directs relator to produce for inspection, copying and use all documentary material contained in his file in the case involving a controlled substance.

The petition for prohibition alleges that after Curtis served a successful term of probation on the charge of attempted possession of a controlled substance, an order of the court was obtained which expunged all official records of that conviction in accordance with § 195.290. Respondent’s answer alleged lack of knowledge concerning probation and an order of expungement and on that basis denied those allegations. In order to resolve the disputed issue this court directed the Circuit Court of Greene County to conduct a hearing concerning whether an order to expunge was entered and to make findings thereon, certifying same to this court.

The findings of fact made by the Circuit Court of Greene County have been received. They disclose that on April 19, 1972, Curtis was sentenced to jail by the Magistrate Court of Greene County on a charge of attempted possession of a controlled substance but that sentence was suspended for a year and Curtis was placed on probation. The court further found that on April 12, 1973, Curtis appeared by his attorney and moved that he be discharged from probation. That motion was granted. The court then sustained an additional motion to expunge the records relating to the case, the order stating that the records were ordered expunged and that the Sheriff’s office should be notified to expunge all records pertaining to the case. Certified copies of the record made on April 19, 1972, and on April 12, 1973, are attached to the court’s findings.

Respondent argues that the April 12,1973 order to expunge is void on its face because it does not recite (1) that relator was under 21 at the time of the offense; (2) that a hearing was held on the motion to expunge; (3) that the court made reference to the controlled dangerous substances registry; (4) that relator was not guilty of other offenses during the period of probation; and (5) that relator was not guilty of repeated violations of the conditions of his probation. All of these, says respondent, are jurisdictional facts, required by § 195.-290, which must be recited in the order to expunge. Cited in support of this position is Green v. St. Louis County, 327 S.W.2d 291 (Mo.1959). It involved a collateral attack on an earlier proceeding in the County Court of St. Louis County wherein it was sought to establish a county road. The court found that the County Court record in said case did not show that the required statutory notice was given to landowners over whose property the road was to run. Such notice was held to be jurisdictional and its absence caused the judgment in the County Court proceeding to be null and void.

In the case against relator the Magistrate Court record clearly shows that the court had jurisdiction of the subject matter and of the person. The prosecuting attorney had filed an information charging relator with commission of a misdemeanor and relator and his attorney had appeared and the court entered a judgment which included probation. Thereafter, motions to be discharged from probation and to expunge were filed in that case by relator which the court acted upon. The five items which respondent claims should have been recited in the order to expunge are items of proof, not jurisdictional matters. The fact that the order to expunge does not recite that the court found each of these evidentiary matters does not make the order to expunge void on its face. The fact that they are not recited does not entitle respondent in this collateral attack to a holding that the order to expunge is a nullity.

In his supplemental brief, filed to address the question of whether the order to expunge was sufficient to constitute a valid order or whether it was void on its face, the respondent also seeks to raise the proposition that the order to expunge, even if valid, denies Springfield Newspapers, Inc., due process of law and equal protection of the law in violation of state and federal constitutional provisions. These questions were not addressed in respondents’ brief which was filed when this proceeding in prohibition was briefed and orally argued. We will not consider them when belatedly raised in the supplemental brief which was permitted in order to allow respondent to question the sufficiency of the recitals in the order to expunge. The constitutional questions could and should have been briefed and argued when the case was submitted. They were waived by respondent.

It is relator’s contention that as a result of the order to expunge entered pursuant to § 195.290, the respondent has no jurisdiction to order relator to furnish his file and the documents contained therein. There have been two cases interpreting § 195.290. State v. Kraus, 530 S.W.2d 684 (Mo. banc 1975), held that an applicant’s probationary period must have terminated before he may apply for an order to expunge under § 195.290. State ex rel. M. B. v. Brown, 532 S.W.2d 893, 896 (Mo.App.1976), held that “it is evident that the legislature intended ‘expunge’ to mean ‘to strike out, blot, obliterate, delete or cancel’ that part of the record which identifies it with the offender.” Neither case dealt with application of the statute to records and documents not actually in the court file such as those in the prosecutor’s files. Therefore, we must look to the language of the statute to ascertain legislative intent on this question.

Section 195.290, which is remedial in nature, provides that after successful completion of six months probation an offender who was twenty-one years of age or younger at the time of committing an offense under that chapter may apply for an order “to expunge from all official records, * * and all recordations of his arrest, trial and conviction.” The chapter does not define “official records” nor does it define “all recordations of his arrest, trial and conviction.” It does not say whether it also applies to other records such as a prosecutor’s file. However, the fact that the legislature intended broad rather than limited application of an order to expunge entered thereunder is apparent from the fact that the section specifies that when an offender meets the prerequisites of the statute and obtains an order to expunge, such offender is restored to the status occupied before arrest and conviction. In other words, it provides that the situation then becomes one in which it is as though the arrest, prosecution and conviction had never occurred.

Our conclusion as to the interpretation of the statute intended by the legislature is supported by the statute’s additional provision that if “in response to any inquiry made of him for any purpose” (emphasis added), the offender does not acknowledge that such arrest, prosecution and conviction occurred, the offender will not be guilty of perjury or making a false statement. This makes it crystal clear that the legislature intended that the prior arrest, prosecution and conviction not be used against the offender.

In view of this apparent purpose of § 195.290, we cannot accept respondent’s contention that in providing for “official records” to be expunged, the section refers only to “public records” open and available to the public as under § 109.180 and that a prosecutor’s working file is not such a record. Section 195.290 does not use the term “public records” nor does it make any reference to § 109.180, the section to which respondent calls our attention. If the restricted interpretation of “official records” and of “all recordations of his arrest, trial and conviction” contended for by respondent were adopted, the newspaper, by going to the public prosecutor’s files, could accomplish by indirection that which the order to expunge clearly would prevent it from doing by means of the records of the court itself. Such a limited reading of the statute is not in harmony with the other provisions thereof to which we have made reference. In our judgment, the legislature did not so intend. We conclude and hold that an order to expunge “all official records” and “all recordations or arrest, trial and conviction” requires expunging all reference to the offender in the prosecutor’s file as well as in the court files.

We are not persuaded to the contrary by Garcia-Gonzales v. Immigration and Naturalization Service, 344 F.2d 804 (9th Cir. 1965), a case relied on by respondent to support a narrow interpretation of ex-pungement statutes. In that case a resident alien was charged with unlawful possession of heroin. She entered a plea of guilty and was placed on probation for three years. Subsequently, following a hearing to determine whether Garcia-Gonzales should be deported because of the conviction, she was ordered deported. After her probation terminated she was allowed, under a California statute, to withdraw her plea of guilty and enter a plea of not guilty. She then sought to reopen the deportation order on the ground that her conviction had been wiped out or expunged. The statute under which the plea of guilty was withdrawn contained no provision for expungement of the records in the case and the Board of Immigration Appeals denied her motion. This action was affirmed in Garcia-Gonzales v. Immigration and Naturalization Service, supra. The court noted that it must decide whether allowing withdrawal of the plea under the statute in question amounted to or resulted in ex-pungement and it concluded that it did not. The case is not comparable to the situation with which we deal and is not persuasive as to how we should interpret § 195.290, an expungement statute.

Respondent next argues that even if the prosecutor’s records are covered by § 195.290, relator has waived his right to have those records withheld because he has filed a libel suit in which he has put in issue his character and his reputation in the community. He relies on cases such as McNutt v. Keet, 432 S.W.2d 597 (Mo. banc 1968), wherein we held that by bringing an action for personal injuries, plaintiff waived the physician-patient privilege with reference to medical records covering the injuries for which recovery was sought. McNutt held that in order to recover for injuries plaintiff necessarily would waive the privilege by her own testimony or by calling the doctor. Therefore, “once the matter of plaintiff’s physical condition is in issue under the pleadings, plaintiff will be considered to have waived the privilege under § 491.-060(5) so far as information from doctors or medical and hospital records bearing on that issue is concerned.” The testimonial privilege arising from the physician-patient relationship was waived.

Section 195.290 does not create a privilege in anyone not to testify. It directs that under certain circumstances the records concerning a prior arrest, prosecution and conviction of an offender are to be expunged. The situation is to be as though those things had not occurred. McNutt and the other cases cited by respondent on the issue of waiver of a testimonial privilege do not apply because there is no testimonial privilege to be waived.

Finally, respondent argues that even if the prosecutor’s file contains records to which § 195.290 is applicable and which would be covered by the order to expunge previously entered, there may be information in the file which would not be records which are to be expunged. For example, argues respondent, “[t]he file may contain police reports of surveillance on Curtis, statements of witnesses who have seen Curtis in possession of narcotics, or seen him use narcotics, or arranged for him to buy and sell narcotics. It may contain information tending to show that Curtis was guilty of other crimes as well as the one for which he was convicted.” For this reason it is argued by respondent that the file should be produced and that information made available. We disagree. The broad purpose expressed in § 195.290 shows, in our judgment, that the legislature did not contemplate permitting such examination and use of any portion of the prosecutor’s file in a case in which an order to expunge has been entered. To interpret the statute in any other way would allow its evident purpose to be circumvented.

Provisional rule in prohibition is made permanent.

MORGAN, C. J., BARDGETT, DONNELLY and SEILER, JJ. and HOUSER, Special Judge, concur.

RENDLEN, J., concurs in result in separate opinion filed.

SIMEONE and WELLIVER, JJ., not participating because not members of the court when cause was submitted.

RENDLEN, Judge,

concurring in result.

While not in complete agreement with the rationale of the principal opinion, and believing that the broad construction given the statute by the court today should not be extended beyond the particular facts of the case, I nevertheless concur in the result reached. The term “official records” used in § 195.290, RSMo 1969, has today been construed by the court to include the file of the prosecuting attorney who conducted the proceedings resulting in plaintiff’s (defendant in the criminal cause) conviction. I would be strongly disinclined to extend the statute to include expunction or the withholding, as ordered here, of any other records not clearly covered by its language. In this connection, the holding in State v. Kraus, 530 S.W.2d 684 (Mo. banc 1975), should be reemphasized and it be remembered that only the record of drug related crimes are involved. Finally, the statute should not be viewed as establishing a restraint on the testimony of any person with knowledge of any drug related arrest, trial and conviction, the record of which has been expunged under this section.

      . All statutory references are to RSMo 1969 unless otherwise indicated.

      . Section 195.290 RSMo 1975 Supp. provides:
      “After a period of not less than six months from the time that an offender was placed on probation by a court, such person, who at the time of the offense was twenty-one years of age or younger, may apply to the court which sentenced him for an order to expunge from all official records, except from those records maintained under the comprehensive drug abuse prevention and control act, as enacted in 1970, and all recordations of his arrest, trial and conviction. If the court determines, after a hearing and after reference to the controlled dangerous substances registry, that such person during the period of such probation and during the period of time prior to his application to the court under this section has not been guilty of any offenses, or repeated violation of the conditions of such probation, he shall enter such order. The effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied prior to such arrest and conviction. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such arrest or trial or conviction in response to any inquiry made of him for any purpose.”

      .Relator does not seek in this proceeding to prohibit production by the prosecuting attorney of his file in the attempted buggery case.


author: FLANIGAN, Chief Judge.

text:
    CONTINENTAL TELEPHONE COMPANY of Missouri, Respondent, v. William H. BOUSE et al., Crawford County R-II Schools, Appellants.
    No. 10617.
    Missouri Court of Appeals, Southern District.
    April 3, 1979.
    Rehearing Denied April 23, 1979.
    Walter D. McQuie, Jr., McQuie & Deiter, Montgomery City, for appellants.
    Gary A. Love, Lilley, Cowan & Love, Springfield, for respondent.
   FLANIGAN, Chief Judge.

Plaintiff Continental Telephone Company of Missouri, a regulated utility, brought this action to recover a portion of the 1975 school taxes which it paid defendant William H. Bouse, the Crawford County collector. The portion was paid under protest. See § 139.031. A school district, Crawford County R-II, intervened in the action and opposed plaintiff's claim. The case was submitted to the trial court on stipulated facts. The trial court found in favor of Continental and awarded it the sum of $1,047.56. Intervenor R-II appeals.

Appellant R — II is one of nine school districts located wholly or partially in Crawford County. One of those school districts, Steelville R-3, is a “single-county district” in that it is located wholly within Crawford County. The other eight districts (including appellant R-II) are “multi-county districts” in that each of them lies partly in Crawford County and partly in one or more other counties.

In 1975 the assessed valuation of real property in Crawford County increased by 15.16 percent over the prior year’s valuation and the assessed valuation of personal property in Crawford County increased by 21.16 percent over the prior year’s valuation. As a result § 137.073, set forth marginally, was brought into play.

At the time the instant action was tried, the supreme court had not yet handed down its opinion in Missouri Pac. R. Co. v. Jones, 544 S.W.2d 541 (Mo.1976), in which the court spelled out the steps which a multi-county school district must take in order to comply with § 137.073. The court held that a multi-county school district must take into consideration “the increased assessed valuation of all the property within the school district. Specifically, the school district must include in its base the increases in assessed valuation in all of the counties in which the school district lies and not just the county where the increase exceeds 10 percent. This method will produce the sum of money which the school district has declared that it needs for the ensuing year.” Missouri Pac. R. Co. v. Jones, supra, at 547.

The taxes involved here are those which were levied against the “distributable property” of Continental.

“The ‘distributable property’ of regulated utilities is assessed on a statewide basis by the state tax commission pursuant to Section 151.060. That statewide assessment is then allocated by the state tax commission among the counties in accordance with Section 151.080. The local school taxes were levied against the ‘distributable property’ of plaintiffs pursuant to Section 151.150, which requires that the separate levies of each school district which lies wholly or partly within a county be averaged to arrive at an average rate of school levy within the county. This average rate of school levy was then charged against the portion of each utility’s ‘distributable property’ allocated to the county.” Missouri Pac. R. Co. v. Jones, supra, at 542-43.

The trial court found that the average rate of school levy “which should have been applied for school taxes in Crawford County in the year 1975” was $3.06 per $100 of assessed valuation. The trial court further found that the average rate of school levy which in fact had been applied against the portion of Continental’s distributable property allocated to Crawford County was $3.20. By appropriate calculations, the accuracy of which appellant R-II does not question, the trial court found that Continental was entitled to recover $1,047.56, which was the difference between the amount it paid under the $3.20 average rate of levy and the amount it owed under the $3.06 average rate.

On this appeal appellant R — II’s sole “point relied on” is that the trial court erred in making the award to Continental “because the $1,039,653 taxes produced from Crawford County was substantially the same as the $991,897 estimated to be needed therefrom within the meaning of § 137.073 and the school districts, thus, fully complied with the statute, an alleged violation of which was the basis of this suit, when six of the nine school districts in Crawford County revised their rates of levy after a more than 10 percent increase in Crawford County real and personal assessed valuations was made.”

Each of the nine school districts had adopted an original rate of levy for 1975 based upon the 1974 assessed valuation of property in the district and estimates of the district’s financial requirements. The original rates were certified to the county clerk of Crawford County. The original rates would have generated tax revenue from Crawford County in the total amount of $991,897 for all of the districts. In view of the increase, in 1975, in assessed valuation in Crawford County, the taxes which were actually produced from Crawford County for all of the districts amounted to $1,039,-653. Six of the nine districts had lowered their original rates of levy and the other three (Sullivan C-2, Strain-Japan R-16 and Northwood R — 4) made no change.

Thus, appellant R-II, in its point, makes a comparison between the amount all of the school districts originally estimated they would receive from Crawford County ($991,897) and the amount which they in fact received from that county ($1,039,653).

In view of the increase in assessed valuation in Crawford County in 1975, § 137.073 was “triggered” with respect to all nine school districts. Each of them was under a duty to comply with the statute and to do so in the manner spelled out in Missouri Pac. R. Co. v. Jones, supra.

Section 137.073 required the school districts to “immediately revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy.”

As pointed out in Southwestern Bell Telephone Co. v. Hogg, 569 S.W.2d 195, 199 (Mo. banc 1978) there are three factors in taxation: (1) assessed valuation, (2) amount of money to be raised, (3) rate of levy. The school district, the court said, “must have the assessed valuation and the aggregate amount of money to be raised before they can fix the rate of levy. The rate of levy is always the last factor to be determined, and to be obtained as a quotient, the assessed valuation being the divisor and the amount of taxes the dividend.” The court also said:

“All that is required is for the school districts to make the mathematical computation using the known factors of revenue need and new increased valuation to arrive at the rate which will produce the needed revenue when applied to the assessed valuation. The result will not be the exact amount of estimated need from taxation but it can and should be every close to it.
“In St. Louis-Southwestern R. Co. v. Cooper, 496 S.W.2d 836 (Mo.1973), the court noted that ‘substantially the same’ is synonymous with ‘practically’, ‘almost’, ‘essentially’, and ‘virtually’ the same.” Hogg, supra, at 201. (Emphasis added.)

The “declared needs” of the respective school districts (that is, the amount each district considered it needed and which it used in computing its original rate of levy based on the 1974 assessed valuation) were as follows:

Sullivan C-2 $539,518
Bourbon R-l 265,083
Crawford R-II 395,706
Steelville R-3 229,435
Viburnum C — 4 595,649
Owensville R — 2 646,019
St. James R-l 321,879
Strain-Japan R-16 43,260
Northwood R-4 110,144

The record shows that, based on the 1975 district-wide assessed valuations within each of the nine districts, the revised (lower) rate of levy indicated below for each district would have produced for each substantially the same amount of taxes as would be produced by the original rate of levy.

School District 1975 Valuation Revised Rate (per $100 valuation) Tax Production
Sullivan C-2 $14,000,540 $3.85 $539,021
Bourbon R-l 8,138,017 3.26 265,299
Crawford R-II 12,539,440 3.15 394,992
Steelville R-3 8,306,290 2.77 230,084
Viburnum C-4 27,088,937 2.20 595,956
Owensville R-2 20,689,245 3.13 647,573
St. James R — 1 10,967,585 2.94 322,447
Strain-Japan R-16 1,416,128 3.06 43,333
Northwood R-4 3,791,835 2.91 110,342

It will be observed that under the foregoing computations the taxes produced under the revised rate for seven of the districts would exceed their respective “declared needs.” In two of the districts (Sullivan C-2 and Crawford R-II) the taxes produced would be slightly less than the respective declared need but the fact is that Sullivan C-2 set its original rate at $3.85 and did not revise it and Crawford R-II revised its original rate downward to $3.15. Each of those two school districts apparently felt that its respective rate was adequate even though it yielded slightly below its anticipated need.

If the revised rates contained in the foregoing table were used, the average rate (total of the revised rates divided by nine, the number of school districts) is $3:03.

Although plaintiff Continental suggested to the trial court revised rates for each of the nine districts, the trial court did not, in its judgment, utilize a specific rate for a specific district, nor was the trial court asked to do so. The trial court did determine that the average rate of levy should have been $3.06.

Continental’s petition had suggested an average rate of $3.04 but prior to final submission of the case to the trial court Continental suggested that the court determine the average rate to be $3.06. Thus Continental received all of the relief which it had requested. If $3.03 had been applied to Continental’s “distributable property,” Continental would have been entitled to a refund slightly higher than the $1,047.56 which the trial court awarded. Manifestly appellant R-II was not prejudiced by the action of the trial court for the reason that the average rate of levy of $3.06 would result in more tax revenue to appellant R-II than would $3.03.

The figures which appellant R — II cites in its “point relied on” are confined to Crawford County and ignore the fact that the multi-county school districts, in order to comply with § 137.073, were required to take into consideration the valuation increases in all of the counties forming a part of the respective district and not merely the increase in Crawford County. Appellant R-II’s “point relied on” has no merit.

The judgment is affirmed.

HOGAN and BILLINGS, JJ., concur.

      . References to statutes are to RSMo 1969, V.A.M.S.

      . The appeal was filed originally in the Supreme Court of Missouri but that court entered an order transferring the cause “to the Missouri Court of Appeals, [Southern] District, in which jurisdiction is vested.”

      . § 137.073. Readjustment of prior levy when county assessment increased ten percent. —Whenever the assessed valuation of real or personal property within the county has been increased by ten percent or more over the prior year’s valuation, either by an order of the state tax commission or by other action, and such increase is made after the rate of levy has been determined and levied by the county court, city council, school board, township board or other bodies legally authorized to make levies, and certified to the county clerk, then such taxing authorities shall immediately revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy. Where the taxing authority is a school district it shall only be required hereby to revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy, plus such additional amounts as may be necessary approximately to offset said district’s reduction in the apportionment of state school moneys due to its increased valuation. The lower rate of levy shall then be recertified to the county clerk and extended upon the tax books for the current year. The term ‘rate of levy’ as used herein shall include not only those rates the taxing authorities shall be authorized to levy without a vote, but also those rates which have been or may be authorized by elections for additional or special purposes. No levy for public schools or libraries shall be reduced below a point that would entitle them to participate in state funds.

      . In Missouri Pac. R. Co. v. Jones, 544 S.W.2d 541, 549 (Mo.1976) an increase in assessed valuation in Cass County “triggered the reduction provision of Section 137.073.” A multi-county school district in that case argued that the increase in assessed valuation in Cass County had little effect upon its total budget — an effect of less than 1 percent. The court rejected the argument and said that “the statute does not concern itself with what percentage the increase in taxes from one county represents of the total school budget.”

      . Section 137.073, with respect to a school district, contains this language:
      “Where the taxing authority is a school district it shall only be required hereby to revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy, plus such additional amounts as may be necessary approximately to offset said district’s reduction in the apportionment of state school moneys due to its increased valuation. The lower rate of levy shall then be recertified to the county clerk and extended upon the tax books for the current year.”
      The formula to be utilized in complying with that portion of the statute is set forth in Union Elec. Co. v. Toulouse, 572 S.W.2d 167 (Mo. banc 1978).
      In the case at bar the loss of “state school moneys” has been taken into consideration in calculating the “declared needs” of the nine school districts and appellant R-II has not questioned the mathematical accuracy of those calculations.

      . For a similar computation see Union Elec. Co. v. Collector of Rev., etc., 562 S.W.2d 370 (Mo. banc 1978).


author: BILLINGS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Tommy Wayne WILHITE, Defendant-Appellant.
    No. 10854.
    Missouri Court of Appeals, Southern District, Division Three.
    April 23, 1979.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Donald E. Lamb, Centerville, for defendant-appellant.
   BILLINGS, Judge.

Defendant Tommy Wayne Wilhite was convicted by an Iron County jury of felonious stealing and sentenced by the court under the Second Offender Act [§ 556.280, RSMo 1969] to a 10-year prison term. He contends the evidence required an instruction on stealing property of a value under $50 and that the evidence was insufficient to support his conviction. We affirm.

Defendant was charged with stealing a gasoline engine which had a value of more than $50. The only evidence of the value of the purloined engine came from its owner who testified the fair market value of the engine was $125. The owner was qualified, without more, to testify to the engine’s reasonable market value. State v. Morse, 514 S.W.2d 375 (Mo.App.1974). This uncontradicted evidence warranted the instruction given and there was no error in the court’s failure to give an instruction submitting the lesser included offense of stealing property of a value less than $50. State v. Davis, 544 S.W.2d 600 (Mo.App.1976).

Defendant’s point concerning the sufficiency of the evidence to support his conviction has not been preserved for appellate review. There was no motion for judgment of acquittal at the close of the state’s case-in-chief. There was no such motion at the close of all of the evidence. And, defendant’s motion for new trial made no mention of the insufficiency of the evidence. Rule 27.20(a), V.A.M.R., requires a motion for new trial to set forth in detail and with particularity the specific grounds or causes therefor. A point not presented in defendant’s motion for new trial and first presented in his brief is not preserved for review. State v. Brookshire, 353 S.W.2d 681 (Mo.1962), cert. denied 371 U.S. 67, 83 S.Ct. 155, 9 L.Ed.2d 119 (1962).

We are urged by defendant to consider the question of the sufficiency of the evidence under the plain error rule. Rule 27.-20(c), V.A.M.R. Application of the plain error doctrine is limited to those cases in which the reviewing court “deems that manifest injustice or miscarriage of justice has resulted . . . .” We have read the trial transcript and find no basis for review under plain error.

The judgment is affirmed.

FLANIGAN, C. J., and MAUS and GREENE, JJ., concur.


author: HARBISON, Justice.

text:
    COMMERCIAL TRUCK & TRAILER SALES, INC., et al., Petitioners-Defendants, v. Mary C. McCAMPBELL, Administratrix of the Estate of Charles Miller, Deceased, Respondent-Plaintiff.
    Supreme Court of Tennessee.
    April 2, 1979.

      Fred H. Cagle, Jr., John W. Wheeler, William A. Zierer, Ray L. Jenkins, W. P. O’Neil, Bernard E. Bernstein, Knoxville, Kendred A. White, Madisonville, for petitioners-defendants; Frantz, McConnell & Seymour, Hodges, Doughty & Carson, Morton, Lewis, King & Krieg, Bernstein, Susa-no, Stair & Cohen, Knoxville, of counsel.
    Robert W. Ritchie, Joseph M. Tipton, Knoxville, for respondent-plaintiff.
   OPINION

HARBISON, Justice.

This is a combined products liability and legal malpractice action. Respondent, as Administratrix of the deceased victim of an accidental injury, sued six defendants for the death of decedent upon theories of negligence, strict liability in tort and breach of implied warranties under the Uniform Commercial Code. As a precautionary measure, she also sued a seventh defendant, her former attorney, for alleged negligence in failing timely to institute the wrongful death action.

The trial court dismissed the suit as to all defendants. The Court of Appeals affirmed insofar as the malpractice action was concerned, holding venue to be improper. It reversed as to five of the defendants in the personal injury action, holding that the plaintiff was entitled to maintain an action for breach of the statutory warranties, and that this aspect of the suit was governed by the four-year statute of limitations contained in the Uniform Commercial Code, T.C.A. § 47-2-725. These five defendants sought further review by petition for certiorari, and the plaintiff also petitioned for review of the dismissal of the malpractice suit. The petitions of all of these parties were granted.

A. The Parties and the Pleadings

The complaint sought damages for injuries and the subsequent death of Charles Miller from an accident which occurred in February, 1974. The action was brought by the administratrix and next-of-kin of the decedent, Mrs. Mary C. McCampbell.

The complaint alleged that the decedent was injured when a dump-truck, owned by defendant Eugene Crawley, was delivering gravel to the decedent’s property in Monroe County, Tennessee. It was alleged that a hoist failed while the truck bed was in a raised position, causing the bed to tilt and the gravel to be spilled upon the decedent. Allegedly as a result of injuries sustained in this accident, the decedent died on March 3, 1974, a little less than one month later.

The complaint contained various allegations of common-law negligence against Crawley, the owner of the vehicle, based primarily upon conduct of his employee and driver, Daniel R. Plemons.

The other five defendants to this part of the action were sued on theories of strict liability, negligence and breach of warranties of merchantability and fitness for particular purposes. The complaint alleged that the defendant American Lease Plans, Inc., either sold the truck to Eugene Craw-ley or transferred it to him under a lease-purchase agreement. It was alleged that American Lease Plans, Inc., was engaged in the business of leasing and selling the type of vehicle involved in the accident. The defendant Commercial Truck & Trailer Sales, Inc., was also alleged to be engaged in the business of assembling and selling such vehicles. The complaint stated that the latter company actually delivered the truck to Eugene Crawley but did so under an arrangement whereby American Lease Plans, Inc., would ultimately sell it to him.

The defendant Reynolds Body Company was alleged to be engaged in selling, manufacturing and installing truck beds and hoist apparatus of the type involved, and it allegedly sold the truck bed and hoist to Commercial Truck & Trailer Sales, Inc. The defendant Peabody Gabon Corporation was alleged to have manufactured, assembled and sold the hoist to Reynolds Body Company, and the defendant Joseph T. Ryerson & Son was alleged to have manufactured, assembled and sold the cylinder and its components, which were part of the hoist apparatus.

Apart from the malpractice action, each of the defendants filed a motion for summary judgment. Only one filed an answer. All of the defendants contended that the action was barred by the one-year statute of limitations, and four of them alleged that as a matter of law the plaintiff was not entitled to recover for breach of warranties of merchantability and fitness for a particular purpose under the Uniform Commercial Code.

As to the malpractice action, the present suit was instituted on October 29, 1976. The complaint alleged that the plaintiff had originally employed respondent J. D. Lee, an attorney, to prosecute an action for damages against the other defendants for the death of her father. It was alleged that he failed to institute the action within one year from the date of the accident, although he did file a complaint on February 5, 1975. It was stated that this former action was dismissed by voluntary nonsuit. The plaintiff claimed that if the former suit was not timely initiated, then she was entitled to recover damages as the result of alleged negligence and breach of contract by the defendant Lee. This defendant filed a motion to dismiss based upon improper joinder and upon the ground that venue was localized in Monroe County under the provisions of T.C.A. § 20 — 401.

B. Action of the Trial Court and the Record on Appeal

The trial court dismissed the malpractice suit but the record does not reflect the reason for his decision. It is not possible to ascertain from the judgment entered whether the dismissal was based upon improper joinder, improper venue or both.

The personal injury and wrongful death action was dismissed in part upon the one-year statute of limitations, the court finding that the accident occurred on February 4, 1974 and that the first suit was not instituted until February 5, 1975. The court held that the suit was barred by the one-year statute of limitations insofar as the strict liability and common-law negligence theories were concerned. It further held that actions for breach of warranties “do not apply to a wrongful death action” so as to allow a greater period of time in which to commence such action.

This judgment, entered on April 29, 1977, states that the court relied upon and considered not only certain affidavits which have accompanied the record on appeal but “depositions filed both for and against the motions” for summary judgment.

None of these depositions, which might well be pertinent to many aspects of this case, were included in the appellate record by the appealing party, Mary C. MeCampbell, or by any of the other parties, despite the affirmative statement in the record that they had been filed with the trial court and considered by it. Such depositions were not required to be incorporated in a bill of exceptions, but should have been filed as a part of the technical record. See Rule 14(8)(a), Rules of the Tennessee Supreme Court.

The Court of Appeals would have been well within its discretionary authority in dismissing the appeal or in insisting that these depositions be furnished to it before attempting to decide the complex issues upon which the parties seek appellate review. It did not do so, however, but accepted the case upon an incomplete record and undertook to deal with the issues presented by the parties.

Under our direction, the clerk of this Court has undertaken to obtain these discovery depositions, because we felt that they might contain important factual information about the accident, the status of the parties, their residence and other issues sought to be presented for review. The clerk has succeeded in obtaining two of four depositions filed by the defending parties. We have reviewed these carefully and find that they do, indeed, contain some information relevant to disposition of portions of the ease. The depositions of the owner of the truck and of one other witness, however, have not been located, and we have no means of knowing their contents. Nor are we advised whether the plaintiff did file additional depositions in opposition to the summary judgment motions as indicated in the final order of the trial court.

In the trial court there was initially a dispute as to whether the accident occurred on February 4, 1974, or on February 5. As the case comes to us, it is conceded that the correct date was February 4. Accordingly the original suit for damages was not instituted within one year from that date but was one day late, having been filed on February 5, 1975.

Probably because this date was no longer disputed, counsel saw fit not to include the discovery depositions in the record on appeal. We have concluded not to dismiss the appeal because of an incomplete record since the case has now been reviewed by the Court of Appeals.

C. Action of the Court of Appeals

As to the legal malpractice action, the Court of Appeals, in a divided decision, held that the provisions of T.C.A. § 20-401 required the action to be brought in the county where the cause of action “arose.” It made some factual assumptions which we cannot verify from the record and concluded that the employment of counsel occurred in Monroe County where the attorney resided. The court then concluded that a legal malpractice action based on nonfeasance of an attorney “arises” in the county of the situs of the attorney-client relationship. It further concluded that since the attorney was shown to be a resident of Monroe County, “in legal contemplation” he must have been in that county when he failed to file the suit. The court held that the cause of action for legal malpractice could only have been filed in the county where the cause of action apparently arose, and the conclusion was reached that “Monroe County was the only county in which Lee could be sued.”

As to the personal injury action, the Court of Appeals held that it was time-barred upon all theories and claims except that predicated upon breach of statutory implied warranties, T.C.A. §§ 47-2-314 and 315. As to that claim, the four-year statute of limitations provided in the Uniform Commercial Code was deemed applicable, and the action for breach of warranty was held to fall within the purview of and to be authorized by the Tennessee Wrongful Death Statute, T.C.A. § 20-607.

OUR CONCLUSIONS

I. The Malpractice Action. We are of the opinion that the Court of Appeals was in error in holding that the action for legal malpractice was localized in the county of residence or employment of the attorney.

This is a transitory action, sounding either in contract or in tort, subject to a one-year statute of limitations. See T.C.A. § 28-304.

Venue in transitory actions, where not controlled by a specific statute, is governed by the general provisions of T.C.A. § 20-401 as follows:

“In all civil actions of a transitory nature, unless venue is otherwise expressly provided for, the action may be brought in the county where the cause of action arose or in the county where the defendant resides or is found. If, however, the plaintiff and defendant both reside in the same county in this state, then such action shall be brought either in the county where the cause of action arose or in the county of their residence.”

As previously stated, the Court of Appeals was of the opinion that the cause of action for malpractice “arose” in Monroe County. There is no evidentiary basis for this conclusion in that portion of the record which has been filed. The deposition of Mrs. McCampbell is one of the two which we have been able to obtain, and there is no indication in it as to when or where she employed counsel.

Further, it appears conclusively from that deposition that Mrs. McCampbell does not reside in Monroe County but that she is a resident of Memphis, Shelby County, Tennessee. Accordingly she and the attorney do not reside in the same county, and the action is in no sense “localized” by the provisions of T.C.A. § 20-401. It is the actual residence of a personal representative, not the county of official qualification, which is of legal significance for venue purposes under this statute. See Denny v. Webb, 199 Tenn. 39, 281 S.W.2d 698 (1955); Sherrill v. Stevenson, 174 Tenn. 672, 130 S.W.2d 110 (1939).

In response to the petition for certiorari filed by the Administratrix, counsel for the respondent attorney insists that even if the Knox County venue in the present case can be sustained, plaintiff failed to comply with the provisions of T.C.A. § 20-211, dealing with the issuance and service of counterpart process.

Such record as we have tends to support this contention, but this was not one of the grounds of the motion to dismiss presented to the trial court. It could present factual issues not yet developed. Therefore our consideration of it in the present state of the record would be inappropriate. Whether process has been correctly issued and served is a matter which may still be raised for consideration by the trial court when respondent files an answer to the merits. See Rules 12.02 and 12.08, Tennessee Rules of Civil Procedure.

Despite the fact that the malpractice claim is transitory and not “local” in nature, and although it is not “localized” in this case by reason of a common county of residence of the parties, there is shown no predicate for venue in Knox County unless this claim is properly joined with the breach of warranty action against the other defendants. Process was not served on the defending attorney in Knox County but in Monroe County. There is no allegation that the malpractice action arises out of any professional or business office maintained by the attorney in Knox County, so as to permit venue under the provisions of T.C.A. § 20 — 405. The Knox County venue, therefore, can be sustained on the present record only if there is proper joinder with the warranty claim, as to which no venue question has been raised.

The Court of Appeals did not address the issue of joinder. The respondent attorney insists that the action against him is premature, since it has not yet been determined that the original action is wholly time-barred. Respondent also insists that any claim to be asserted against him is necessarily different from and does not arise out of the same transactions or events as those involved in the remaining portion of the personal injury suit.

The provisions of Rule 20.01, Tennessee Rules of Civil Procedure, are quite broad and permit the joinder in a single action of several defendants if there is asserted

“. . . any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.”

In an action for malpractice against an attorney, ordinarily a plaintiff is required to prove that recovery could have been made in the original action which the attorney was employed to prosecute. See Gay & Taylor, Inc. v. American Gas. Co., 53 Tenn.App. 120, 381 S.W.2d 304 (1964). Usually many of the same witnesses and basic facts needed to make out a meritorious claim against the defendants in a personal injury action are necessary in an action against an attorney based upon untimely filing.

Respondent is correct in his insistence that the only claims remaining against the other defendants arise out of an alleged breach of warranty. In another section of this opinion we have concluded that the warranty action is still viable in theory. Accordingly if that claim ultimately is found without merit, it will be upon grounds other than those now asserted against the attorney.

Nevertheless, from such pleadings as are presently in the record, it appears that most of the same transactions and events which will be the subject of the warranty action, together with most of the same parties and witnesses, will be involved in the malpractice action. On the present state of the record, we are unprepared to hold as a matter of law that joinder of this action with the wrongful death suit was improper under Rule 20.01. If, after answers are filed or the issues are otherwise more fully developed, the trial judge concludes that dismissal for improper joinder is appropriate, he may act accordingly.

Further, under the provisions of Rule 20.-02 the trial court may make such orders as will prevent a party from being embarrassed, delayed or put to unnecessary expense, including ordering separate trials or making other orders to prevent delay or injustice. See also Rule 21.

The judgment of the Court of Appeals with respect to the malpractice action is reversed, and the cause is remanded to the trial court for further proceedings consistent herewith, but subject to such further orders as the trial court may later see fit to enter with respect to joinder, severance or separate trial.

II. The Warranty Action. The plaintiff took no appeal in this case insofar as her negligence action against the owner of the truck was concerned. Further, as the case comes here, it is conceded that all claims against the other five defendants, who were the manufacturers and sellers of the vehicle or its components, are time-barred except such claims as may be tenable under the Uniform Commercial Code.

There is no information in the pleadings or in such depositions as we have received as to the year model of the vehicle, or as to when any of the various defendants may have manufactured, assembled or sold it or its components. It is conceded by all parties that if the four-year statute of limitations contained in T.C.A. § 47-2-725 does apply, the statute begins to run not from the date of the injury or death but from an earlier date as provided in that section. It is entirely possible, therefore, that this four-year statute of limitations may have expired as to some or all of the defendants remaining in the action, but on the record which we have before us, this cannot be ascertained.

The parties broadened on appeal the actual issues decided by the trial court. He did not hold that the decedent, or his personal representative, was outside the purview of the statutory warranties contained in the Uniform Commercial Code, insofar as we can ascertain. After holding that all claims other than those based on warranty were time-barred, his judgment recites:

“Further, the Court found, as a matter of law, that the allegations as to breach of warranties do not apply to a wrongful death action so as to allow a greater period of time in which to commence said action.”

We construe this as a holding that a warranty action abates upon the death of the claimant prior to suit, at least as to any claim for personal injury resulting in death.

On appeal, and in the assignments of error made before us, the defending parties have broadened the issues to include an assertion that the decedent was a “total stranger” to the vehicle in question, not in the chain of commercial transactions, nor one of the protected third-party beneficiaries provided for in T.C.A. § 47-2-318 (a member of the family or household of the purchaser or a guest in his home).

It is the insistence of the defendants that, regardless of whether the action may be brought under the wrongful death statute, there was no “privity” of contract between any of them and the decedent, and that he was a “mere bystander.” They assert that he was not entitled to the benefit of the implied warranties of merchantability or fitness for a particular purpose, even if his injuries had not been fatal.

Such information as we can gather from the pleadings and the two depositions before us casts some doubt upon the factual assertion of the defendants that the decedent was such a “total stranger” as to be entirely unforeseeable and outside of the range of the normal use of the product involved. It appears that he was acquainted with the truck driver, who was an uncle of his son’s wife. The decedent was an elderly, retired individual, living alone on a farm which either belonged to him or to his son, who resided in Madisonville. The decedent’s son, now also deceased, had ordered some gravel to be delivered to the farm, and the decedent apparently decided that he would like to have some additional gravel spread near a barn. He either requested permission from the truck driver to accompany the latter on a trip to obtain the gravel or was invited by the driver to do so. In all events it appears that the decedent rode as a passenger with the driver to the point of supply and return. When the driver raised the bed of the dump truck, however, gravel was not released. The truck driver was a handicapped individual, described in the record as being crippled and physically disabled. The decedent emerged from the truck to go to the rear in an effort to determine the cause of the difficulty. While he was behind the truck, for some reason the hoist mechanism failed, the bed apparently tilted in some way, and a large quantity of gravel was discharged upon the decedent, allegedly resulting in internal injuries from which he subsequently died.

While we cannot pass upon the question on this undeveloped record, it is not entirely beyond the realm of possibility that the decedent might have been a protected person within the express provisions of T.C.A. § 47-2-318. Assuming that he was not, however, his representative claims that she is entitled nevertheless to maintain an action for breach of a statutory warranty by virtue of the provisions of T.C.A. § 23-3004 as follows:

“In all causes of action for personal injury or property damage brought on account of negligence, strict liability or breach of warranty, including actions brought under the provisions of the Uniform Commercial Code, privity shall not be a requirement to maintain said action.”

The Uniform Commercial Code, with its limited third-party beneficiary provisions, was adopted in this state in 1963. T.C.A. § 23-3004 was enacted in 1972, shortly after the decision of this Court in Hargrove v. Newsome, 225 Tenn. 462, 470 S.W.2d 348 (1971).

In the Hargrove case, it was held that privity of contract was required in order for a plaintiff to maintain an action for breach of the implied warranties contained in the Uniform Commercial Code. There it was held that an employee of the purchaser of an allegedly defective product could not sue either the dealer or the manufacturer for breach of an implied warranty. There, as in the present case, all other claims of the plaintiff, based upon negligence and strict liability in tort, were time-barred.

In the opinion, the Court discussed in some detail the history of the adoption of the Uniform Commercial Code in this state, including the restricted third-party provisions of T.C.A. § 47-2-318. It held that T.C.A. § 47-2-318 did change previous law with respect to privity of contract,

“. . . but also clearly delineates the extent of the change. Under these circumstances to extend to any person not within the categories mentioned in the statute the right to bring an action upon warranty without privity of contract would, in effect, be amending the statute under the guise of judicial construction. This we should not do.” 225 Tenn. at 469-470, 470 S.W.2d at 352.

A few years earlier, in the case of Leach v. Wiles, 58 Tenn.App. 286, 429 S.W.2d 823 (1968) the Court of Appeals had held that the purchaser of a product could maintain an action for breach of implied warranty under the Uniform Commercial Code only against his immediate vendor, not against a remote manufacturer.

It was after these decisions that the provisions of T.C.A. § 23-3004 were enacted. We are constrained to the view that the Legislature meant exactly what it said — that in all actions for personal injury or property damage predicated upon breach of warranty, including those arising under the Uniform Commercial Code, “privity shall not be a requirement to maintain said action.”

We are unable to agree with the assertion of the petitioners, shared by the dissenting judge in the Court of Appeals, that this statute purported to eliminate only “vertical” privity but did not broaden so-called “horizontal” privity or enlarge the class of persons who might claim the benefit of an implied warranty. It seems to us that the provisions of T.C.A. § 23-8004 must be read in conjunction with those of T.C.A. § 47-2-318 and that the latter statute was impliedly amended so as to broaden the class of persons who might claim the benefit of a warranty, as well as to eliminate the requirement of “vertical” privity. Essentially the statutory warranties are made to run with the product, at least in the range of its intended and reasonably anticipated use.

It is recognized, of course, that the existence of the remedy of strict liability in tort, pursuant to Restatement (Second) of Torts, § 402A, heretofore recognized in this state has, to some extent, made it unnecessary in many instances for a products liability claimant to seek redress under the provisions of the Uniform Commercial Code. There are many similarities between the tort remedy of strict liability and the statutory action for breach of implied warranty. There are, however, some significant differences of which the applicable statute of limitations is only one.

The existence and reach of these similar remedies have been the subject of widespread litigation and discussion. See generally Wade, Is Section 402A of the Second Restatement of Torts Preempted by the U. C. C. and Therefore Unconstitutional? 42 Tenn.L.Rev. 123 (1974); Dickerson, Products Liability: Dean Wade and the Constitutionality of Section 402A, 44 Tenn.L.Rev. 205 (1977); 20 Vand.L.Rev. 665 (1967). For treatment of the subject in a state which, like Tennessee, has removed the privity requirement by statute, see Speidel, The Virginia ‘Anti-Privity’ Statute: Strict Products Liability Under the Uniform Commercial Code, 51 Va.L.Rev. 804 (1965).

It is not necessary here to attempt to delineate precisely the class of potential plaintiffs who might claim the benefit of an implied warranty under the U.C.C. We are of the opinion that, in view of the removal of the privity requirement by statute, the allegations of the complaint and such proof as we have in the record are sufficient to show that the decedent is not precluded as being a totally unforeseeable claimant. Accordingly we affirm the decision of the Court of Appeals and the implicit holding of the trial court in this regard, on the record thus far developed.

While petitioners concede that consequential damages for breach of an implied warranty under the U.C.C. include personal injuries proximately resulting therefrom, T.C.A. § 47-2-715, it is their insistence that if the personal injury results in subsequent death, no action may be maintained. They further insist that if such an action could be maintained, it would be governed by the one-year statute of limitations generally controlling personal torts. T.C.A. § 28-304.

We are not able to sustain either of these contentions. It is well settled in this jurisdiction that in actions for personal injury or property damage resulting from breach of warranty, the four-year statute provided in T.C.A. § 47—2-725 controls. See McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d 487 (Tenn.1975); Layman v. Keller Ladders, Inc., 224 Tenn. 396, 455 S.W.2d 594 (1970).

Petitioners insist that an action for breach of warranty is essentially contractual, rather than tortious, in nature, and that Tennessee law respecting the survival of claims only preserves tort, not contractual, causes of action.

There is a fallacy in this contention. Even if the action were contractual in nature, it does not follow that claims based upon contract abate upon the death of the claimant. Rather, it is well settled that such actions generally survive and do not abate upon the death of the holder of a contractual right. See generally Butler v. Trentham, 224 Tenn. 528, 458 S.W.2d 13 (1970); T.C.A. § 20-601; 1 Am.Jur.2d, Abatement, Survival and Revival §§ 57,107 (1962); 1 C.J.S. Abatement and Revival § 137 (1936). As stated in Carruthers, History of a Lawsuit § 48, at 56 (8th ed., Gilreath, 1963):

“The law of Tennessee then, which rests upon authority, reason, and practice is, that in all cases the right of action under a contract, which one has at his death, survives to his representatives, and that the suit should be in the name of such representatives alone, or jointly, with the other parties plaintiff if there be any.”

Inasmuch as the present action was brought by the personal representative of the deceased, even if it should be deemed contractual in nature, it is a claim which might well have survived as an asset of the decedent’s estate to be asserted by his personal representative.

However, the claim is basically one for personal injuries. It is a statutory right of action under the Uniform Commercial Code. We are unwilling to construe the Code as narrowly as the petitioners contend, so as to permit an action for personal injuries as consequential damages for breach of a warranty, but to preclude one when those injuries result in death prior to suit. We believe that this would be an unduly restrictive and harsh interpretation. We are in agreement with the Court of Appeals that the language of the Tennessee Wrongful Death Statute, T.C.A. § 20-607, is sufficiently broad to embrace an action where death has resulted from breach of an implied statutory warranty under the Uniform Commercial Code.

The assignments of error of the petitioners with respect to the personal injury action are overruled, and the judgment of the Court of Appeals with respect thereto is affirmed. The cause is remanded to the trial court for further proceedings consistent herewith. All costs incident to this appeal are taxed to the five petitioners in the personal injury action. All other costs will abide the results in the trial court.

COOPER, FONES and BROCK, JJ., and HUMPHREYS, Special Justice, concur.

ORDER

A petition for rehearing has been filed on behalf of petitioner, American Lease Plans, Inc. Attached to the petition is a document stated to be a copy of one of the discovery depositions filed in and relied upon by the trial court, but not included in the record on appeal. Predicated thereon, petitioner requests this Court to make a determination as to whether, as a matter of law. it could be deemed a “seller” within the provisions of the Uniform Commercial Code.

In our opinion, this issue has not been timely raised or presented on appeal. Further, there may well be documentary evidence or oral testimony which the parties wish to produce in order to develop the issue raised.

Accordingly, the petition to rehear is denied at the cost of petitioner, without prejudice, however, to the right of the petitioner to raise and develop in the trial court the issue asserted in the petition for rehearing.

      . Whether a non-purchaser occupying an automobile is so protected is a subject on which there is a split of authority. See, e. g., Williams v. General Motors Corp., 19 N.C.App. 337, 198 S.E.2d 766 (1973) (borrower not covered); Thompson v. Reedman, 199 F.Supp. 120 (E.D.Pa.1961) (guest of owner covered).

      . For discussion of the 1972 statute, see 3 Memphis St.L.Rev. 212 (1973); 41 Tenn.L.Rev. 756 (1974).

      . See Ellithorpe v. Ford Motor Co., 503 S.W.2d 516 (Tenn.1973); Olney v. Beaman Bottling Co., 220 Tenn. 459, 418 S.W.2d 430 (1967).

      . We are urged to adopt an approach to the four-year statute under the U.C.C. similar to that used in Watts v. Putnam County, 525 S.W.2d 488 (Tenn.1975), to the effect that the four-year warranty period provides a basic period of exposure but that specific actions for personal injury or property deunage must be filed within one or three years from the date of injury, respectively. The Tennessee Products Liability Act of 1978 does adopt a similar approach, with an overall six to ten-year limitation, T.C.A. § 23-3703. This approach was considered and expressly rejected by the Court as to U.C.C. warranty actions in the Keller Ladders case, supra, and that position was reiterated in McCroskey, supra.

      . Personal injury claims generally arise out of conduct classified as tortious. Their survival, where death does not ensue, is provided for in T.C.A. § 20-602.

      . This case is not governed or affected by the Tennessee Products Liability Act of 1978, T.C.A. §§ 23-3701 et seq., but we note that in that statute the General Assembly, in defining the term “product liability action” included actions for personal injury, death or property damages. These are specifically defined to include claims based upon breach of warranty, express or implied. See T.C.A. § 23-3702(g).


author: FONES, Justice.

text:
    James R. PARTIN, Appellant, v. OLD REPUBLIC INSURANCE CO., Appellee.
    Supreme Court of Tennessee.
    April 30, 1979.
    Ray A. Stegall, Knoxville, for appellant.
    Earl R. Layman, Roy P. Neuenschwan-der, Knoxville, for appellee.
   OPINION

FONES, Justice.

This is a workmen’s compensation case. The trial court denied benefits for coal miner’s pneumoconiosis under T.C.A. § 50-1102 because plaintiff previously had been awarded 100% total permanent disability as a result of traumatic injuries sustained in February 1975, from which he has not recovered.

The proof showed that plaintiff, James H. Partin, age fifty-eight with a third-grade education, had been working in coal mines since age ten. In February 1975 plaintiff was seriously injured in an underground coal mine cave-in while employed by the Shadduck Coal Company. Plaintiff sought workmen’s compensation benefits, and in June 1976 plaintiff and his employer entered into a court-approved settlement agreement, which specified a recovery in the sum of $19,395.92 for 100% total permanent disability to the body as a whole. Plaintiff testified that he has not worked since his accident in February 1975.

Plaintiff consulted several doctors who opined that he had pneumoconiosis on the basis of their examination of his chest x-rays. Plaintiff thereupon filed for pneumo-coniosis benefits under the Tennessee Workmen’s Compensation Law on July 7, 1977. Three doctors deposed that he was suffering from pneumoconiosis when he was disabled in the February 1975 mining accident. On the other hand, two physicians, Drs. Rogers and Kirkpatrick, stated that they could not confirm a diagnosis of pneumoconiosis, but did find symptoms of emphysema.

On May 10, 1978, the chancellor rendered an order, which recited the following findings of fact:

“The evidence establishes that since February of 1975 Mr. Partin has been totally and permanently disabled and that he has not returned to work and he has not recovered from his February of 1975 injuries.
The evidence is convincing and it is found that he has pneumoconiosis, that is Black Lung Disease, and that he had it in February of 1975 when he ceased working for the Shadduck Coal.
However, the evidence is also convincing and it’s found that he was not disabled from working as a result of pneu-moconiosis in February of 1975. He was, in fact, working at that time.
We do not think it is the intent or the policy of the law that an employee can simultaneously recover two 100% awards when he is totally disabled.”

On appeal plaintiff asserts that the trial court erred in finding that he was not totally and permanently disabled by pneu-moconiosis. In workmen’s compensation cases the decision of a trial court will not be disturbed if there is any material evidence to support its findings. E. g., Trane Co. v. Morrison, 566 S.W.2d 849 (Tenn.1978). It was undisputed that plaintiff was working full-time in the coal mines at the time of his traumatic injuries, and plaintiff testified that except for the injuries sustained during the cave-in, he would still be working.

Despite the material evidence to support the decision below, plaintiff insists that the federal statutory presumptions incorporated into T.C.A. § 50-1102 mandate a different result. He argues that these provisions establish that once any evidence of pneumoco-niosis has been introduced into evidence, a judgment must be rendered in favor of the employee unless rebutted by evidence that the employee is capable of continuing his usual coal mine work or its equivalent. In short, plaintiff contends that he is entitled to judgment in his favor since the undisputed proof was that he has not entered the mines since February 1975. For several reasons, we must disagree with this theory of the cause of action.

We find that an employee who previously has been adjudicated 100% totally and permanently disabled because of traumatic injuries received in a mining accident and who has not shown a rehabilitation from his disability cannot again be declared totally and permanently disabled from pneumoconiosis. Any other result would defeat the plain meaning of total permanent disability. In Industrial Carving Co. v. Hurst, 223 Tenn. 469, 447 S.W.2d 871 (1969), we held,

“It is not inconceivable that an employee, though previously adjudged permanently and totally disabled and fully compensated therefor, may rehabilitate himself and return to work. In so doing he renews his wage-earning capacity and if he suffers a subsequent injury then he is deprived of this newly acquired capacity and should be compensated for such loss.” 223 Tenn. at 475; 447 S.W.2d at 873.

Accord, Employers-Commercial Union Cos. v. Taylor, 531 S.W.2d 104 (Tenn.1975); McKamey v. Pee Wee Mining Co., Inc., 498 S.W.2d 94 (Tenn.1973). In the case at bar, plaintiff has not rehabilitated himself from the traumatic injury and returned to work. It therefore has been impossible for plaintiff to renew his wage earning capacity and place himself in a position to claim that such a newly-acquired capacity was lost because of pneumoconiosis.

The result we reach renders the eviden-tiary question raised by plaintiff moot.

Affirmed. Costs are adjudged against appellant.

COOPER, BROCK and HARBISON, JJ., and HUMPHREYS, Special Justice, concur.