author: HARBISON, Justice.

text:
    TIPTON COUNTY BOARD OF EDUCATION and William T. Eaton, Petitioners, v. Lawrence DENNIS, b/n/f Stephen Dennis and Stephen Dennis, Individually, Respondents.
    Supreme Court of Tennessee.
    Jan. 23, 1978.

      J. Thomas Caldwell, Ripley, J. Houston Gordon, Covington, for petitioners.
    Ricco Gatti, Jr., Memphis, for respondents.
   OPINION

HARBISON, Justice.

These actions were instituted under the Tennessee Governmental Tort Liability Act, T.C.A. §§ 23-3301 et seq. They arose out of a collision between an automobile being driven by Mrs. Jane Ann Dennis and a school bus which was stalled on State Highway 59 at about 7:30 a.m. on January 23, 1974. Mrs. Dennis was fatally injured in the accident. Her twelve-year-old son, a passenger in her car, sustained personal injuries.

The trial court found that Mrs. Dennis was guilty of proximate contributory negligence and dismissed the action brought for her wrongful death. He allowed a recovery to the minor, Lawrence Dennis, and to his father for medical expenses. From these judgments the plaintiffs appealed, contending that the trial court had erred in dismissing the wrongful death action and in not allowing punitive damages in the action brought on behalf of the minor. They contended that the trial court erred in not finding the operator of the school bus guilty of gross negligence.

The Court of Appeals affirmed the compensatory award in the suit of the minor but held the bus driver to be grossly negligent, entitling the plaintiffs to punitive damages. It also held that Mrs. Dennis was guilty only of remote contributory negligence, which would not bar recovery in view of the gross negligence of the bus driver. It allowed compensatory and punitive damages in the wrongful death action.

This Court granted certiorari to consider whether or not punitive damages are recoverable, as a matter of law, under the provisions of the Tennessee Governmental Tort Liability Act, and also to review the disposition of the wrongful death action by the Court of Appeals. There were numerous other issues before the trial court and Court of Appeals, but we have limited our consideration to the two questions stated above, one of which is legal and the other factual.

A large number of witnesses testified in the cases, and there was a great deal of conflicting testimony. As provided by statute, the actions were tried without a jury, T.C.A. § 23-3319, and review on appeal is governed by T.C.A. § 27-303.

On the January morning when the accident occurred, Daylight Saving Time was in effect, and there is little question from the record that the collision occurred during darkness. A light misty rain had been falling, and the pavement was wet, although it was not raining at the time of the accident. The school bus had been traveling north on a straight, relatively level two-lane highway. The investigating highway patrolman testified that the road was completely level to the south of the collision site for more than a mile. To the north there was a gradual incline, cresting several hundred feet past the accident scene. The automobile being operated by Mrs. Dennis was also proceeding in a northerly direction, and it struck the school bus in the rear.

There were approximately twenty to twenty-five children on the bus at the time of the collision. The driver had stopped to pick up a regular passenger, Debbie Boyd, at the home of her grandmother, Mrs. Freddie Gibson. He stopped at or near the driveway to the residence, which was situated on the east side of the highway. The right wheels of the bus were at the edge of the pavement, but not on the shoulder.

After Debbie Boyd had boarded the bus, the driver shifted into gear, but the motor of the bus stalled after the vehicle had moved forward a very short distance. The driver made two attempts to start the motor, but the starter did not engage. He got out of the bus, raised the hood, and checked the battery cable, which was intact. He returned to the bus and again attempted to start the engine, without success. He then requested the oldest boy on the bus, Danny Brent, who was sixteen years of age, to stand on the opposite shoulder of the highway to flag traffic. The driver went into Mrs. Gibson’s home and called the maintenance shop of the school system for assistance. He received an answer immediately, and was advised that a mechanic should be on the scene within about ten minutes. He then returned to the highway, where a number of cars had stopped behind the bus. He and Danny Brent waved about six cars around the bus and were attempting to flag traffic when Mrs. Dennis approached from the south.

The bus remained stalled in the northbound lane of the highway for ten to fifteen minutes between the time of its initial stop and the collision. Most of the children remained on the bus. The driver testified that there were flares on board, and that these were' in operable condition. He had not placed them along the highway prior to the impact, however, as required by T.C.A. § 59-919. He testified that he simply did not think to get the flares, with all of the other matters which required his attention.

Mrs. Dennis was apparently driving at a high rate of speed for the weather conditions then obtaining. The impact between her automobile and the bus was violent, driving the school bus more than one hundred feet north on the highway and into the southbound lane, and completely demolishing the front portion of the automobile. Witnesses estimated her speed at about fifty-five miles per hour, but we agree with the observation of the Court of Appeals that a trier of fact could reasonably conclude that the vehicle was traveling at an even higher rate of speed.

Lawrence Dennis testified that he did not see the school bus until his mother’s vehicle was within ten or fifteen feet of it, and that there were no lights on the bus at the time. He also testified, however, that he was just beginning to learn to operate an automobile and that he was quite sleepy, almost “groggy,” when the collision occurred.

There was sharply conflicting testimony concerning the presence or absence of lights on the bus at the time of the accident. A number of persons who were driving or riding in other automobiles prior to the collision testified that they did not see any lights on the bus, either from- the front or the rear. Others testified to the contrary, one witness testifying that she stopped behind the bus and then pulled around it, and that its lights were operating. The bus driver testified that the flashers on the bus were operating continuously from the time he stopped until the accident occurred. He said that the headlights were burning when he first stopped, but that he cut these off in order to try to start the engine, later turning them on again. He testified that at no time were the flashers ever turned off.

One eyewitness, traveling north behind the Dennis vehicle, testified unequivocally that the lights of the bus were flashing, and that he saw them over two-tenths of a mile before he reached the accident scene. He saw the impact, saw the bus careen down the highway thereafter, and testified that its flashers were burning during and after the impact. The fact that the lights were burning after the accident was confirmed by the investigating highway patrolman, and by one of the maintenance employees of the School Board. The latter also testified that they were still on when the damaged bus was brought into the garage later in the morning.

Debbie Boyd, the boarding passenger, was slightly injured in the accident and made claim for damages. Her case was tried along with the cases now under consideration. Her grandmother, Mrs. Gibson, testified positively that the bus lights were flashing when the accident occurred, and that she heard her daughter, mother of the child, exclaim that Mrs. Dennis was going to run into the bus. Danny Brent, the sixteen-year-old who was assisting with traffic, and whose injured sister was also a claimant in the trial court, testified that the bus lights were flashing when the accident occurred.

There was, therefore, material evidence in the record to justify a factual decision either way as to whether the bus was lighted before the collision. The trial judge concluded that the lights either were not burning or that they were so dim as not to be visible under the weather and driving conditions then existing. The Court of Appeals concurred in this finding.

The trial judge, however, also concluded that the bus driver was not guilty of gross neglect. He observed that the driver was “a relatively uneducated man and that he tried to do what he thought best under the circumstances.” The Court of Appeals overturned this conclusion and found that the bus driver was guilty of gross neglect of duty, to the point that he might as well have left the scene of the accident, as occurred in one of the cases which it cited and relied upon, Inter-City Trucking Co. v. Daniels, 181 Tenn. 126, 178 S.W.2d 756 (1944).

The Court of Appeals also reversed, the finding of the trial judge that the wrongful death action was barred by the proximate contributory negligence of Mrs. Dennis. It concurred in finding that she was at fault, but characterized her negligence as being “remote” only.

We are unable to agree with either of these conclusions of the Court of Appeals. In the first place, it seems to us that the school bus driver did not evince a conscious neglect of duty or display a callous indifference to consequences. He was faced with a school bus loaded with children, a vehicle which had suddenly experienced an engine failure, and a busy highway filled with traffic, which was stopping and building up behind the bus. He dispatched the oldest student on the bus to assist with traffic, made a very brief phone call for assistance, and then returned himself to try to relieve traffic congestion. Whatever the ultimate factual decision on the matter may have been, he clearly believed that flashing lights on his bus were operating as a warning to approaching cars, and substantial independent evidence was offered in support of his testimony in that regard. A total of not more than fifteen minutes elapsed. While his failure to place flares, as required by statute, constituted negligence per se, and while we have no disposition to alter the conclusions of the courts below that this failure was a direct and proximate cause of the accident, we do not think his conduct at all comparable to that of the truck driver who abandoned a darkened vehicle for over an hour and a half and was found in a near-by restaurant after the accident, as in the Inter-City Trucking Co. case, supra. Nor is it even remotely comparable to that of the owner and the driver in Garner v. Maxwell, 50 Tenn.App. 157, 360 S.W.2d 64 (1961). There the vehicle was on the highway for over four hours at night. The owner and the driver, Garner and Wells, deliberately turned off the lights to protect the battery, left the vehicle unattended without lights or flares and went home to bed.

The trial judge saw and observed all of the witnesses in this case and heard the conflicting testimony. Based thereon, he concluded that the bus driver was not guilty of gross misconduct or aggravated neglect of duty. We are of the opinion that the evidence does not preponderate against this finding, and we reverse the holding of the Court of Appeals that the bus driver was guilty of gross negligence.

We are also unable to conclude that the negligence of Mrs. Dennis, found to exist by both courts below, was anything other the direct and proximate and constituted an immediate, contributing cause to the tragic accident in which she lost her life. Accordingly the judgment of the Court of Appeals, awarding compensatory and punitive damages for her wrongful death, is reversed, and the judgment of the trial court, dismissing that suit, is affirmed at the cost of the respondent therein.

No issue is made before us as to the amount of compensatory damages awarded to the minor, Lawrence Dennis, and to his father for medical expenses. The Court of Appeals added punitive damages to the compensatory award made by the trial court, and, for the reasons stated above, on the facts, we are of the opinion that this was error. We are further of the opinion that it was error as a matter of law, because we do not consider that punitive damages are recoverable under the provisions of the Tennessee Governmental Tort Liability Act, T.C.A. § 23-3301 et seq.

Like many other statutes permitting recovery from governmental entities for tor-tious injuries, the Tennessee Governmental Tort Liability Act contains several exceptions. It does not authorize any recovery at all for most willful or intentional torts. T.C.A. § 23-3311. It generally removes immunity from suit, with stated exceptions, “for injury proximately caused by a negligent act or omission of any employee within the scope of his employment . . . .” Ibid. It specifically removes such immunity for injuries resulting from negligent operation of motor vehicles or other equipment. T.C.A. § 23-3308.

The statutes define injury for which damages may be recovered as follows:

“The word ‘injury’ means death, injury to a person, damage to or loss of property or any other injury that a person may suffer to his person, or estate, that would be actionable if inflicted by a private person or his agent.” T.C.A. § 23-3302(4).

The theory of punitive, or exemplary damages is not to compensate an injured plaintiff for personal injury or property damage, but to punish a defendant, to deter him from committing acts of a similar nature, and to make a public example of him. As stated in a recent case, they are “in excess of compensatory damages and in addition thereto.” Inland Container Corp. v. March, 529 S.W.2d 43 (Tenn.1975). See Liberty Mutual Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760 (1962); Knoxville Traction Co. v. Lane, 103 Tenn. 376, 53 S.W. 557 (1899).

Apart from statute, the weight of authority is that punitive damages are not recoverable from municipal or local governments, on grounds of public policy. Since the ultimate payment of public tort claims devolves upon taxpayers, most courts have concluded that punitive awards in such cases have little deterrent value and do not advance any other public purpose underlying exemplary damages. See 57 Am.Jur.2d, Municipal, Etc. Tort Liability §§ 318 et seq.; 63 C.J.S. Municipal Corporations § 947; Annot., 19 A.L.R.2d 903 (1951). In many jurisdictions having tort claim statutes, there are express provisions disallowing punitive awards. See, e. g. 28 U.S.C.A. § 2674 (Federal Tort Claims Act); West’s Ann.Gov. Code § 818 (California, 1977 Supp.) (disallowing “damages imposed primarily for the sake of example and by way of punishing the defendant”); Minn.Stats. Ann. §§ 466.04 (1977 Supp.); Okla.Stats. Ann. § 11-1751(b) (1977 Supp.).

The Tennessee statute does not expressly prohibit an award of punitive damages. However, it seems to us inappropriate and not in accord with the legislative intent to permit a punitive award against a public body and its employees where only a negligent act is involved, even though it might be characterized as gross, when the Legislature has excluded compensatory as well as punitive awards in nearly all cases involving willful or intentional misconduct. Further, the definition of “injury” for which recovery may be had is not consonant with the theory of punitive damages. We are of the opinion that in adopting the Tennessee Governmental Tort Liability Act, the General Assembly intended to authorize compensatory damages, but not exemplary or punitive damages, within the statutory limits. T.C.A. § 23-3327.

Accordingly, the judgment of the Court of Appeals in the action brought on behalf of Lawrence Dennis is modified by deleting the award of punitive damages. It is otherwise affirmed. Costs accrued in the appellate courts in that case are taxed against respondents; costs in the trial court against petitioners. The cause will be remanded to the trial court for any necessary orders incident to the final judgment.

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


source: Caselaw Access Project

license: Public Domain

text:
    Helen Scales TRICE, Individually and d/b/a Scales Farms, Petitioner, v. A. C. MOYERS, Respondent.
    Supreme Court of Tennessee.
    Jan. 30, 1978.

      William M. Leech, Jr., Leech, Hardin & Knolton, Columbia, for petitioner.
    Jack B. Henry, Henry & Henry, Pulaski, for respondent.
   OPINION

HARBISON, Justice.

In this case an unsuccessful plaintiff in a civil action has sought relief from the judgment of the trial court and has moved for a new trial upon the basis that he was deprived of effective appellate review without fault on his part. Relief is claimed under Rule 60.02, Tennessee Rules of Civil Procedure.

The action was instituted by respondent for an accounting for alleged partnership profits. Petitioner counterclaimed, seeking an accounting and reimbursement for losses sustained in a number of cattle purchases and sales in which the parties were involved.

Several depositions were taken, and the case was thereafter tried without a jury upon these depositions, oral testimony and numerous exhibits. The trial consumed two days, March 6 and 7, 1975, and the matter was taken under advisement by the Chancellor.

On January 16, 1976 the Chancellor filed a memorandum opinion, finding that neither party was entitled to recover from the other. Pursuant to the opinion, judgment was entered on February 21,1976. Respondent filed a motion for a new trial which was overruled on April 6, 1976. An order reflecting that action and allowing respondent an appeal was entered on April 21. Respondent was allowed a total of ninety days within which to prepare and file a bill of exceptions.

Thereafter, on April 30, 1976, the present motion, seeking relief from the judgment and a new trial, was filed. It alleged that after the motion for new trial had been overruled, counsel for respondent contacted the court reporter who had been present at the trial and ordered from her a transcript of the evidence. The motion alleged that counsel was advised that during January, 1976 “she had erased all of those tapes since it had been some nine (9) months since the case was tried, and she assumed that no one was going to appeal and that the matter was closed.”

The motion alleged that counsel for both parties were in agreement that “there is no way to prepare a narrative bill of exceptions in view of the complexity of the proof.”

In support of this motion there was attached an affidavit, dated May 6, 1976, from the court reporter, which stated that she was “authorized to report lawsuits in the State of Tennessee.” The affiant stated that she was the reporter in the instant case, but that no one had ordered a transcript of the testimony. Accordingly, “sometime in January 1976” after hearing nothing from either party with reference to having a transcription made, she “erased the tapes, since I felt that after such a length of time had expired, no one needed a transcript, or the case had been disposed of.”

No further affidavits or testimony appear to have been taken in connection with the motion, nor was any response thereto filed, insofar as the record reveals. The Chancellor heard the motion, considered the affidavit and statement of counsel, and on June 23, 1976 entered an order overruling the motion for relief.

The text of the order recites that counsel for respondent had alleged that there was no way to prepare a narrative bill of exceptions, and that counsel for petitioner “has stated in open court that it would be virtually impossible to prepare a narrative bill of exceptions.” The order recites that the case was, to a large extent, tried on the basis of many exhibits with testimony of the parties and witnesses being related to the exhibits. The trial court found as a fact “that an adequate and accurate narrative bill of exceptions would be virtually impossible.”

From the denial of his motion, respondent appealed to the Court of Appeals. That Court reversed and ordered a new trial, finding that sufficient basis for relief under Rule 60.02 had been shown.

The Court of Appeals noted that counsel for the petitioner averred in his brief in three places that the Court reporter “employed standard shorthand and backup recording devices.” The Court found no evidence of those facts in the record. After quoting the affidavit of the reporter, the Court of Appeals said:

“We assume that had there been shorthand notes taken at the trial a proper record could have been prepared and counsel and the court would not have agreed that the preparation of a record would be virtually impossible.”

The record is silent as to whether shorthand notes existed from which a proper transcript could be prepared, although we note that nearly a month elapsed between the filing of the court reporter’s affidavit and the hearing on the Rule 60 motion— seemingly an ample time for either or both parties to have developed the facts on this point if either had desired to do so.

Except as provided in criminal and post-conviction cases, pursuant to T.C.A. §§ 40-2029 et seq., Tennessee had no system of official reporters in trial courts. Court reporters are engaged privately, at the expense of one or more of the parties, and are not officials of the trial court system. From the nature of their work, probably in legal theory most of them are independent contractors rather than direct employees of the litigants, although this may be a question of fact to be determined from proper evidence if the issue is contested.

The affidavit of the court reporter in the present case states that she was “authorized to report lawsuits in the State of Tennessee.”

The meaning of this statement is unclear. The reporter may have meant that she was a member of a professional reporters’ association, or perhaps that she had been designated in one or more of the trial courts to report criminal cases. There is no statement of her qualifications, and this court simply has no way of knowing whether she can or did take shorthand or other notes of the trial, in addition to the tape recordings.

The record is extremely meager, and the relief sought by the respondent is drastic. Respondent seeks to set aside a judgment on its merits, and to require the successful party to submit to a complete new trial because of the respondent’s dilemma. We are of the opinion that the record is not yet sufficiently developed to warrant that sort of relief. On the other hand, counsel for the respondent was, from a practical standpoint, at the mercy of a private court reporter, and does not appear to have been personally at fault. From the present record it does not appear that he could have known of the need for a transcript until the case had been completed in the trial court and authority from his client to appeal had been received. He tried to obtain a bill of exceptions promptly after his motion for post-trial relief had been denied, insofar as the record indicates.

There is no question in this state of the authority of a court of equity to order a new trial, either in the law courts or in an equity court itself, when a party has, without fault on his part, been deprived of effective appellate review. See, F. D. C. Corp. v. Burgess, 225 Tenn. 546, 473 S.W.2d 186 (1971). The filing of a separate or independent suit in equity for relief from a judgment is recognized as a permissible remedy under Rule 60.02. This, however, has not been encouraged, since the adoption of the Rules of Civil Procedure. Most claims for relief from a judgment which has become final can be presented under the provisions of Rule 60. See Jerkins v. McKinney, 533 S.W.2d 275 (Tenn.1976).

Nevertheless, as mentioned previously, the relief sought here is serious and quite out of the ordinary. It should be granted only upon a clear showing that the party seeking to appeal could not, in fact, obtain an adequate transcript of the testimony of the witnesses and that he was deprived of this without culpable neglect on his own part. In cases decided prior to the adoption of Rule 60, the requirements for obtaining a new trial in equity were very strict, and such relief was not routinely granted. See Tenn, Central Ry. Co. v. Tedder, 170 Tenn. 639, 98 S.W.2d 307 (1936).

The affidavit of the court reporter in the present case fails to state her qualifications, fails to show whether or not she did take shorthand notes, or whether any such notes would be adequate upon which to base a trial transcript. It simply says that she had erased her tapes, nothing more.

Apparently both counsel were of the opinion that from their own notes or recollections a narrative bill of exceptions would be “virtually impossible.” Whether they consulted their clients or witnesses does not appear. If in fact shorthand or other notes did exist, further inquiry could and should be made into the qualifications of the court reporter and her ability to convert such notes into a reasonable transcript or summary of the testimony.

The erasure of the tapes may have obliterated all possibility of there being any usable trial transcript, but this does not sufficiently appear in the present record to justify setting aside a judgment on the merits and the granting of a new trial. On other other hand, as indicated previously, we are not satisfied from the record that the situation resulted from fault on the part of respondent or his counsel. Certainly the broad review available in an equity case, T.C.A. §§ 27-301 et seq., is a valuable right, of which a party should not be deprived by circumstances wholly unforeseeable and beyond his control.

Petitioner correctly insists that the burden of showing a basis for relief under Rule 60 rests upon respondent in this case and that petitioner should not be required to go forward with evidence to assist her opponent. However, the matter is essentially one of equity, and we are not content to have so fundamental an issue disposed of upon a record so meager that courts are forced to engage in guesswork to decide the merits. It is the petitioner who has suggested that other court reporter notes or records existed, but she produced no evidence of this essential information for the record. Obviously more complete and satisfactory evidence can and should be developed. Further proceedings are appropriate under those circumstances. T.C.A. § 27-329.

The judgment of the Court of Appeals is reversed, and the cause is remanded to the trial court. Both parties should be given the opportunity for a full evidentiary hearing as to whether or not, as of April, 1976, it was or was not feasible or practicable for the respondent to obtain a transcript or a summary of the trial testimony which, in the opinion of the trial judge, would be adequate for purposes of appellate review. If the trial judge is of the opinion that such a record could have been obtained or that there was inexcusable neglect chargeable to respondent, then relief under Rule 60.02 would be inappropriate and should be denied. If he is of the opinion that such a record could not have been obtained by any practicable or feasible means at the disposal of the respondent, and that the respondent and his counsel were without fault in that regard, he should grant relief and order a new trial.

Costs of the present appeal will be divided equally between the parties. All other costs will be assessed by the trial judge.

FONES, COOPER and BROCK, JJ., and MeCANLESS, Special Judge, concur.

HENRY, C. J., not participating.


author: MARTHA CRAIG DAUGHTREY, Special Judge.

text:
    TENNLITE, INC. and Aetna Life & Casualty Insurance Company, Appellants, v. Wendell Hyman LASSITER, Appellee.
    Supreme Court of Tennessee.
    Feb. 6, 1978.
    Thomas H. Peebles, III, John W. Wade, Jr., Trabue, Sturdivant & DeWitt, Nashville, for appellants.
    Samuel L. Swann, Springfield, for appel-lee.
   OPINION

MARTHA CRAIG DAUGHTREY, Special Judge.

In this worker’s compensation case, the employee, Lassiter, was found by the trial judge to be totally and permanently disabled as the result of multiple injuries received in an industrial accident. On appeal, the employer and the employer’s insurance carrier contend that the judgment must be reversed because (1) the award under T.C.A. § 50-1007(d) was legally improper, the injuries being solely to scheduled members covered by T.C.A. § 50-1007(c), and (2) there was insufficient evidence to support a determination that the injuries received were totally and permanently disabling. For the reasons set out below, we reject the appellants’ contentions and affirm the judgment of the trial court.

There is no dispute as to the cause or the anatomical extent of the employee’s injuries. The boom of a crane fell on Lassiter while he was operating a crusher feeder on company premises, pinning both of his thighs and his left hand and wrist. He was hospitalized for six weeks and underwent surgery on more than one occasion during an eighteen month period following the accident. Lassiter, who is left-handed, was eventually forced to undergo amputation of the index finger of his left hand. His orthopedic surgeon testified that Lassiter sustained 15% permanent anatomical impairment to his left leg, 15% impairment to his right leg, and 35% to his hand. The doctor declined to make an estimate of his patient’s earning disability or “industrial impairment,” saying only that it would probably be greater than the anatomical impairment sustained.

According to uncontroverted proof at trial, as the result of his injuries Lassiter is now unable to do any climbing or heavy lifting (even assuming he is able to grasp an object for purposes of lifting), because of permanent damage to his thigh muscles. The physician testified that climbing or lifting would likely cause Lassiter to “collapse” because of muscular incapacity. He thus rated Lassiter’s anatomical disability to the body as a whole at 25% impairment. Again, he offered no estimate as to overall industrial impairment.

The employer and carrier insist that the award should have been limited to the amounts provided under T.C.A. § 50-1007(c), arguing that the injuries to the employee’s legs and left hand are injuries to scheduled members and that recovery must be awarded exclusively on the basis of the formula set out in the subsection (c) schedule. Significantly, the appellant’s brief is silent as to how the award for scheduled loss should be arithmetically calculated under the provisions of that schedule.

A thorough review of the worker’s compensation statute and relevant case law convinces us that the injuries suffered by the employee in this case are unscheduled injuries for purposes of § 50-1007(e), which presently provides:

When an injury not otherwise specifically provided for in this chapter as amended, totally incapacitates the employee from working at an occupation which brings him an income, such employee shall be considered “totally disabled,” and for such disability compensation shall be paid as provided in subsection (d) hereof, provided that the total amount of compensation payable hereunder shall not exceed forty thousand dollars ($40,000), exclusive of medical and hospital benefits.

We conclude that the injuries here are “not otherwise specifically provided for” under Title 50, Chapter 10, and we therefore hold that there was no legal impediment to an award under the permanent total disability provision of § 50-1007(d).

By providing specific formulas for combined injuries to certain members, the legislature has recognized the virtually uncon-trovertible fact that a combination of injuries to members of the body has a greater disabling effect than the mere arithmetical sum of individual scheduled awards would reflect. T.C.A. § 50-1007(c). The award for a simultaneous injury to a leg and hand (based on 400 weeks) is greater, for example, than the sum of awards for injury to a leg (200 weeks) and a hand (150 weeks).

But the subsection (c) provisions for combined injuries are limited to those involving two members. Thus, we must now decide whether the legislature intended in the event of multiple injuries to three or more members that an award be based exclusively on some combination of the scheduled provisions. We think they clearly did not. Not only does the statute reflect a policy against mere arithmetical recovery for multiple injuries, as discussed above, but it must also be noted that the standards for determination of an award for the multiple injuries sustained in this case are wholly ambiguous, if calculated by the schedule alone: Should the trial judge have based the award upon the combined loss of use of two legs plus the loss of use of a hand (400 weeks plus 150 weeks, for a total of 550 weeks)? Or should he have based it upon the combined loss of use of a leg and a hand plus the loss of use of a leg (400 weeks plus 200 weeks, for a total of 600 weeks)? While it would be possible to resolve this dilemma by awarding the greater amount on the basis of the requirement of liberal construction in favor of the employee, T.C.A. § 50-918, we think it is more in keeping with that very rule to hold that multiple injuries to three or more members are not covered by the schedule set out in subsection (c).

This court has previously dealt with the question of multiple injuries to more than two scheduled members. In Griffith v. Goforth, 184 Tenn. 56, 195 S.W.2d 33 (1946), the employee had suffered injuries to a total of eight scheduled members, as the result of a dynamite explosion. The chancellor found total permanent disability and awarded the then statutory maximum of $5,000. The employee appealed this decision, requesting an award on the basis of the arithmetical sum of the amounts recoverable for individual injuries to scheduled members, which arithmetical sum would have been approximately double the maximum amount awarded for total permanent disability.

Although the posture of the Griffith case is inverse to the one before us, the opinion is nevertheless instructive for our purposes. The Griffith court noted that the compensation statute provides limitations on the amounts recoverable for the loss of a single member and for the loss of two members, but held that “no provision is made for multiple injuries above two.” 195 S.W.2d at 36. The court then disallowed the pyramiding of injuries to scheduled members.

We adhere to the interpretation of the compensation statutes adopted in Griffith, supra, to the effect that multiple injuries of three or more members are not scheduled injuries under § 50-1007(c). This holding is in conformity with legislative policy and is in harmony with our own decisional law and that of other jurisdictions. Griffith v. Goforth, supra. Accord, Williamson v. Bush & LaFoe, 294 So.2d 641 (Fla.1974); Superior Construction Co. v. Day, 127 Ind.App. 84, 137 N.E.2d 543 (1956); Engle v. Industrial Commission, 77 Ariz. 202, 269 P.2d 604 (1954); Berg v. Sadler, 235 Minn. 214, 50 N.W.2d 266 (1951). See generally A. Larson, The Law of Workmen’s Compensation § 58.20 (1976).

Having concluded that the injuries here are unscheduled, we must now decide whether the evidence at the hearing was sufficient to support the trial court’s finding that the injuries were totally and permanently disabling and thus compensable under § 50-1007(d), or whether the case must be remanded to permit a determination under § 50-1007(c) of the extent of the employee’s permanent partial disability in proportion to the body as a whole. We conclude that there is material evidence sufficient to sustain the trial judge’s finding and that a remand is therefore unnecessary.

In addition to the physical incapacities discussed above, the proof showed that because of his injuries Lassiter was no longer able to do work around the home and that he had been forced to abandon altogether his part in the family’s tobacco farming operation. And although Lassiter was working for the same employer at the time of the hearing, it was clear that this was largely the result of his employer’s magnanimity: the company had hired an additional worker to assist Lassiter in the performance of his job, and his supervisor testified that under normal circumstances he would not be allowed to hire a person with Lassi-ter’s disabilities. The proof further showed that Lassiter had a ninth grade education, that his only previous employment was as a gas station attendant, and that, while his only skill and training was as a manual laborer, he was no longer able to lift, to carry, to walk distances, or to stand for any appreciable length of time. In terms of manual dexterity it must again be noted that Lassiter is a left-handed person and that his left hand is now seriously impaired because of the amputation of his left index finger and the permanent impairment of three other fingers on his left hand.

Under such circumstances as these, the mere fact that the employee is subsequently re-employed through the magnanimity of his former employer is no bar to a finding of permanent disability. Skipper v. Great Central Ins. Co., 225 Tenn. 584, 474 S.W.2d 420 (1971). In his memorandum of law the trial judge cited several authorities which stand for the proposition that legal disability is not synonymous with and may exceed medical disability for purposes of determining partial or total compensability. See, e. g., Employers-Commercial Union Co. v. Taylor, 531 S.W.2d 104 (Tenn.1975); Smith v. Hale, 528 S.W.2d 543 (Tenn.1975); Federated Mutual Implement & Hardware Ins. Co. v. Cameron, 220 Tenn. 636, 422 S.W.2d 427 (1967). By implication, the trial court found that the employee “is unable to perform his work and that he does not have the education, training, and other elements which would provide him with job opportunities in other lines.” His finding of total disability is thus in accord with the result reached by this Court in Travelers Insurance Co. v. Flatford, 551 S.W.2d 695 (Tenn.1977).

The judgment of the trial court is in all respects affirmed.

HENRY, C. J., COOPER and BROCK, JJ., and McCANLESS, Special Judge, concur.

      . Such a recovery is no longer possible, because the maximum benefits for permanent partial disability under subsection (c) and for permanent total disability under subsection (d) are now the same. T.C.A. § 50-1007(c) and (d). There was no maximum recovery for permanent partial disability resulting from scheduled injuries at the time Griffith was decided. See Code 1932, § 6878(c).

      . Had the employee prevailed on this question, the result would have been an award greatly in excess of the maximum amount recoverable for total permanent disability. However, the court did permit recovery slightly in excess of the maximum provided for total permanent disability, for reasons which are not relevant to this case and which are no longer valid because of subsequent amendments to the statute. See fn. 1, supra. In so doing, the Griffith court announced that its result was in keeping with the “rule of liberality in construing the statute . so as to give injured employees every benefit which it was reasonably intended to confer . . . 195 S.W.2d at 37.


author: PARROTT, Presiding Judge (E.S.). PARROTT, Presiding Judge (E.S.).

text:
    OSBORNE ENTERPRISES, INC. and East Ridge Development, Inc. v. CITY OF CHATTANOOGA et al.
    Court of Appeals of Tennessee, Eastern Section.
    May 19, 1977.
    Certiorari Denied by Supreme Court Jan. 16, 1978.

      Spears, Moore, Rebman & Williams, Chattanooga for Osborne Enterprises, Inc. and East Ridge Development, Inc.
    Eugene N. Collins and Randall L. Nelson, Chattanooga, for City of Chattanooga.
   OPINION

PARROTT, Presiding Judge (E.S.).

In this inverse condemnation action plaintiffs, Osborne Enterprises, Inc. and East Ridge Development Corporation, Inc., seek damages for the loss of air space above their property and for the cutting of trees on their property that encroach into the defendant airport’s glidepath.

Both sides have appealed. The defendants assign error to the circuit judge’s allowing plaintiff, Osborne Enterprises, Inc., to amend its original complaint to include East Ridge Development Corporation, Inc. as a party plaintiff. The plaintiffs insist the circuit judge erred in sustaining defendants’ motion for summary judgment on the grounds the statute of limitations barred any recovery of damages resulting from the limitation of the height of structures on plaintiffs’ property or damages resulting from noise caused by aircraft.

After allowing the amendment and sustaining the motion for summary judgment, the issue of defendants’ cutting trees on plaintiffs’ property was submitted to a jury and in accord with the jury’s verdict, judgment in the amount of $2,000.00 was entered in favor of the plaintiff, East Ridge Development Corporation, Inc.

The transcript of the jury trial has been made a part of this record as a bill of exceptions; however, neither party has assigned error to the jury trial but complain only of matters which were determined by the circuit judge before the trial. Thus, we will limit our review to those matters considered by the circuit judge in allowing the amendment and sustaining the motion for summary judgment.

The pleadings and briefs show East Ridge Development Corporation, Inc. is a wholly owned subsidiary of the original plaintiff, Osborne Enterprises, Inc. Osborne owns the greater part of a large shopping complex on the south side of Brainerd Road known as East Gate Center. Adjoining East Gate Center Osborne owns some additional land on which there is office buildings. East Ridge Development Corporation, Inc. owns property on the north side of Brainerd Road which is adjacent to the defendants’ airport. All of plaintiffs’ property is in the approach zone of the defendants’ Runway 20.

As early as July 13,1954, ordinances were passed by the City of Chattanooga which undertook to establish glide angles for the airport runways. On January 29, 1969, after Runway 20 was to be extended 200 feet, the glide angle ordinance was amended to lower the angle of the approach zone one foot vertically to fifty feet horizontally from the end of the runway. The actual extension of the runway was not completed and put into use until September 29, 1970. In December 1970, the defendants went onto plaintiffs’ property, removed some trees in the approach zone that were thought to be a safety hazard.

On October 14, 1971, Osborne Enterprises brought this inverse condemnation action seeking damages for cutting of the trees and damages for the ordinance’s limiting the height to which plaintiffs could build on the East Gate Center property.

First we will consider the defendants’ assignment that the circuit judge erred in allowing Osborne, on May 13, 1976, to amend its complaint to include as a plaintiff East Ridge Development Corporation, Inc., the record owner of the property where the defendants cut the trees. Defendants argue strongly that East Ridge was a stranger to the litigation and since Osborne had no right to bring an action for damages involving property owned by East Ridge, the amended complaint should not relate back to the time of the filing of the original complaint. If the amendment does not relate back, plaintiff’s claim is barred by the one-year statute of limitations as set forth in T.C.A. 23-1424.

The Tennessee Rules of Civil Procedure became effective in 1971. “They were designed to simplify and ease the burden of procedure under the sometimes harsh and technical rules of common law pleading. . Rule 15.01 provides that leave (to amend) shall be freely given when justice so requires. This proviso in the rules substantially lessen the exercise of pre-trial discretion on the part of a trial judge. Indeed, the statute (§ 20-1505, T.C.A.) which conferred a measure of discretion on trial judges was repealed and Rule 15 stands in its place and stead. That rule needs no construction; it means precisely what it says, that ‘leave shall be freely given’ ”. Branch v. Warren, 527 S.W.2d 89, 91-92 (Tenn.1975).

Following this policy, Rule 15.03 should be liberally construed and applied. It was designed so cases would be determined on their merits and not on rigid technicalities. However, “the rule does not apply where the amendment introduces a different and additional cause of action. . Where the original pleading contains allegations which advise, although not clearly, the nature of the claim and the parties against whom it is being made, an amendment stating more clearly and explicitly the same things relates back to the commencement of the action and is not affected by the intervening lapse of time; and this is true of an amendment which includes new allegations of facts which existed at the time of the filing of the original complaint. A plaintiff may usually amend, under the relation back provision . to substitute or add as plaintiff the real party in interest.” 35A C.J.S., Federal Civil Procedure, § 347, p. 531.

Rule 15.03 of the Tennessee Rules of Civil Procedure, which is identical with Rule 15(c) of the Federal Rules of Civil Procedure, provides:

Whenever the claim or defense asserted in the amended pleadings arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provisions is satisfied and if, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a misnomer or other similar mistake concerning the identity of the proper party, the action would have been brought against him. Except as above specified, nothing in this rule shall be construed to extend any period of limitations governing the time in which any action may be brought.

Our Supreme Court in Karash v. Pigott, 530 S.W.2d 775, 777 (1975), noted Rule 15.03:

The time-honored “new cause of action” objection to amendments has been substantially eroded by the New Rules of Civil Procedure. Rule 15.03 has never been construed by our courts; however, its language is so clear and unequivocal that it is virtually self-construing. .
The great liberality of this Rule is convincingly demonstrated by the ensuing provisions permitting a new party, under certain circumstances, to be brought in notwithstanding the fact that the statute has run at the time of the amendment.

The three primary considerations cited by the federal courts in determining whether an amendment seeking to add or substitute a new party plaintiff would be allowed to relate back under Rule 15(c) to the date of the original pleading so as to avoid the statute of limitations, have been (1) whether the defendant received adequate notice of the claim against him; (2) whether the relation back of such an amendment would unfairly prejudice the defendant; and (3) whether there is an “identity of interest” between the original party plaintiff and the new party plaintiff. In Williams v. United States, 405 F.2d 234, 236-238 (Ga.C.A.,1968), as cited in 12 A.L.R.Fed. § 7(a), p. 252, the Court said “that notice was clearly the critical element involved in Rule 15(c) determinations, and that Rule 15(c) was in fact based on the idea that a party who is notified of litigation concerning a given transaction or occurrence is entitled to no more protection from statutes of limitation than one who is informed of the precise legal description of the rights sought to be enforced. . .In determining whether the adversary has had fair notice, the usual emphasis of ‘conduct, transaction or occurrence’ is on the operational facts which give rise to a claim by a particular party based on any one or all of the theories conjured up, whether timely or belatedly. But when it comes to a late effort to introduce a new party, something else is added. Not only must the adversary have notice about the operational facts, but it must have had fair notice that a legal claim existed in, and was in effect being asserted by, the party belatedly brought in. This becomes of special importance in situations in which a common set of operational facts gives rise to distinct claims (or defenses) among distinct claimants (or defendants).”

Once the defendant has fair notice from the original pleadings that the new party’s claim is also involved, then the defendant has suffered no prejudice. Here, the plaintiffs’ original complaint sufficiently identifies the property allegedly damaged by defendants so as to prevent any unfair prejudice to the defendants in bringing in the new plaintiff who had record title to the land. The theories of recovery, the type and extent of damage occurring and the type of recovery sought are clearly apparent from the complaint. There is a definite identity of interest between the original plaintiff and the new plaintiff in that East Ridge is pled to be a wholly owned subsidiary of Osborne. Consequently, the three primary considerations in determining whether the amended complaint relates back to the original complaint have been sufficiently satisfied to allow the amendment. Although the defendant must now defend a claim which was thought the mere passage of time had barred, statutes of limitations do not afford such an automatic insulation from suit by such a mechanical procedure. We find the trial judge did not err in allowing the amendment to relate back to the filing of the original complaint.

Turning now to plaintiffs’ assignment of error, it is argued the circuit judge erred in finding the lowering the approach zone fails to state a claim upon which relief may be granted and is barred by the application of the statute of limitations, being T.C.A. 23-1424.

We take the above quoted portion of the circuit judge’s order sustaining the motion for summary judgment to be a finding that the plaintiffs’ claim was barred by the statute of limitations and not to mean that the plaintiffs had no cause of action if the defendants had taken the air space over plaintiffs’ property. The taking of air space above one’s property does in fact create a cause of action upon which relief may be granted. In Johnson v. City of Greeneville, 222 Tenn. 260, 435 S.W.2d 476 (1968), our Supreme Court stated: Further, in Jones v. Cocke County, 57 Tenn.App. 496, 420 S.W.2d 587, 589 (1967), this Court stated that “for there to be a taking, it is not necessary for the owner to be entirely deprived of the use of the property. Any destruction, restriction or interruption of the common and necessary use may constitute a taking.” Indeed, the U. S. Supreme Court, in United States v. Causby, 328 U.S. 256, 262, 66 S.Ct. 1062, 1066, 90 L.Ed. 1206 (1946), stated:

This court many years ago held, and properly so, that the obtaining of property for public use where the property is either actually appropriated or the common or necessary use of the property is rendered impossible or seriously interrupted constitutes a taking.
The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value.

We cannot agree with the circuit judge’s order sustaining the motion for summary judgment on the ground plaintiffs’ claim was barred by the one year statute of limitations [T.C.A. 23-1424]. The defendants offered in support of their motion a copy of the 1954 ordinance restricting the heights of structures and objects in the vicinity of the airport and the affidavit of the assistant manager of the airport. The affidavit stated the extension of Runway No. 20 was completed and put into use on September 29, 1970, more than one year before the suit was filed. The plaintiffs offered a counter-affidavit of Charles D. Uptain, president of Osborne Enterprises, stating that the plaintiff did not know of the extending and lowering of the glide angle until December 15, 1970. It is clear from these affidavits that there exists a dispute as to when the plaintiff knew or should have known of the alleged injury.

There being conflicting evidence as to when the “taking,” if any, did occur, it was error for the circuit judge to sustain the motion for summary judgment. Rule 56.03 forbids the sustaining of a motion for summary judgment unless there is no genuine issue of fact and the movant is entitled to a judgment as a matter of law. See Evco Corp. v. Ross, 528 S.W.2d 20 (Tenn.1975).

“The time of the accrual of the cause of action, as affecting the running of the statute of limitations, is frequently a question of fact to be determined by the jury or trier of fact under the evidence, as where the evidence is conflicting or the time is not clearly provided and is a matter of inference from the testimony. On the other hand, if the evidence is undisputed and only one conclusion can be drawn therefrom, the time of the accrual of the cause of action is a question of law to be determined by the Court.” 54 C.J.S. Limitations of Actions § 399b, pp. 550-551.

T.C.A. 23-1424 provides:

The owners of land shall commence proceedings within twelve (12) months after the land has been actually taken possession of, and the work of the proposed internal improvements begun . . (Emphasis supplied.)

In Morgan County v. Neff, 36 Tenn.App. 407, 256 S.W.2d 61 (1952), this Court speaking through Presiding Judge McAmis, in determining the application of the one year statute of limitations, said the following:

In our opinion, if it is to apply at all to such cases, it should be applied in a manner to afford the landowner the statutory period of one year within which to bring suit after injury or after reasonable notice or knowledge of such injury and damage. Where the land is taken either without a conveyance or a condemnation proceeding there is no hardship in holding that the period begins, as the statute expressly provides, when the land is taken possession of.

In Jones v. Hamilton County, 56 Tenn.App. 240, 405 S.W.2d 775 (1966), it was held:

T.C.A. Sec. 23-1424 provides that owners of land appropriated to a public use must bring suit for the value of the land within one year “after the land has been actually taken possession of, and the work of the proposed internal improvement begun.”

The law does require diligence on the part of the landowner. In Knox Coun ty v. Moncier, 224 Tenn. 361, 455 S.W.2d 153 (1970), our Supreme Court further provided that the property owner cannot “sit idly by and wait to commence his suit at any time which is convenient with him, thereby circumventing the purpose of the stature of limitations. What we do hold is that the onus is on the property owner to institute his suit within one year after he realizes or should reasonably realize that his property has sustained an injury which is permanent in nature. At that time the ‘taking’ occurs and the statute of limitations begins to run.”

We find the circuit judge did not err in allowing plaintiff to amend but did commit error in sustaining defendants’ motion for summary judgment and remand the cause for further proceedings not inconsistent with this opinion.

Let the costs incident to this appeal be taxed to the defendants.

GODDARD, J., and T. MACK BLACKBURN, Special Judge, concur.

OPINION ON PETITION TO REHEAR

PARROTT, Presiding Judge (E.S.).

The defendant, City of Chattanooga, petitions this Court to reconsider the effect of Ordinance 5991, passed in 1969, which lowered the approach zone from the extended runway. Defendants argue that since the ordinance, as a matter of law, puts the plaintiffs on notice of the lowered glide path, the one year statute of limitations precludes their cause of action filed in October 1971. We considered this argument in our original opinion and determined then that it was without merit in light of recent inverse condemnation cases in this State that hold the statute of limitations begins to run when the landowner’s property is injured by the taking, not when the landowner has notice of the taking. We will take this opportunity on defendants’ petition to rehear to re-emphasize and re-affirm our prior determination.

The leading cases in Tennessee that establish this principle are Johnson v. City of Greeneville, 222 Tenn. 260, 435 S.W.2d 476 (1968); Knox County v. Moncier, 224 Tenn. 361, 455 S.W.2d 153 (1970); and Jones v. Cocke County, 57 Tenn.App. 496, 420 S.W.2d 587 (1967). In each of these cases it is held that “in a suit such as this, the landowner’s cause of action does not accrue until an injury has been suffered.” (Emphasis supplied.) Jones v. Cocke County, supra. More specifically, in Johnson v. City of Greeneville, supra, 435 S.W.2d at 481, our Supreme Court stated:

We think that this one year statute means that it begins to run within one year from the time of the injury instead of one year from the date of construction.

The defendants cite Knox County v. Moncier, supra, for the proposition that summary judgment oh the statute of limitations question was proper in this case because the plaintiffs were put on notice of the taking and should have reasonably realized that their property would be damaged. We can not agree with this strained application of Moncier. In Moncier the Supreme Court held “that the onus is on the property owner to institute his suit within one year after he realizes or should reasonably realize that his property has sustained an injury which is permanent in nature. At that time the “taking” occurs and the statute of limitations begins to run.” Supra, 224 Tenn. at 368, 455 S.W.2d at 156.

The plaintiffs’ affidavit establishes the plaintiffs’ lack of knowledge of any injury to their property resulting from the lowered glide path. Applying the holding in Moncier to this factual situation, the result is a material issue of fact inappropriate for summary judgment. The time of the accrual of the cause of action is not clearly provided and the evidence is in conflict. Therefore, the running of the statute of limitations is a question of fact to be determined by the jury or trier of fact under the evidence and is not an appropriate issue for resolution by motion for summary judgment.

We accordingly overrule defendants’ arguments on petition to rehear and re-affirm our original opinion.

GODDARD, J„ and T. MACK BLACKBURN, Special Judge, concur.


author: TATUM, Judge. DWYER, Presiding Judge,

text:
    David W. OWENS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 16, 1977.
    Certiorari Denied by Supreme Court Feb. 6, 1978.

      Walker Tipton, Covington, for appellant.
    Brooks McLemore, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Michael E. Whitaker, Dist. Atty. Gen., Preston Parks, Asst. Atty. Gen., Somerville, for appellee.
   OPINION

TATUM, Judge.

The defendant, David W. Owens, was sentenced to life imprisonment after conviction of murder in the second degree of his father. Reversed.

The defendant charges that the trial court erred (1) in submitting the issue of insanity upon the M’Naghten Rule, (2) in admitting into evidence an inculpatory statement made by him to police officers, and (3) in instructing the jury that Doctor Thatch testified that the defendant knew right from wrong. He also says that the evidence preponderates against the jury verdict.

The defendant entered a plea of not guilty by reason of insanity. There is overwhelming evidence in the record that on the evening of 11 March 1976, the defendant and his father were drinking together. The defendant and his father were driving to get some beer when the defendant stopped his car, took his father out, and stomped his head until he was dead. The defendant put his father’s body in the backseat of the car, took it to a creek and threw it in. He immediately telephoned his sister and his employer and confessed to them. Immediately after his arrest, he was given his Miranda rights and confessed to the arresting officer. He subsequently summoned officers of the Tipton County Sheriffs Department and gave them a confession.

In December, 1975, the defendant attempted suicide by shooting himself in the stomach with a pistol. After his recovery, he resided with his parents in Tipton County. He was arrested on the night of 11 March 1976. Between March 15 and April 2, he made two other attempts at suicide. On 28 July 1976, the trial judge found the defendant to be mentally ill and ordered him hospitalized at Central State Hospital in accordance with T.C.A. § 33-604.

In his first assignment of error, the defendant says that the trial court erred in submitting the issue of the defendant’s insanity to the jury upon the M’Naghten test, citing Graham v. State, 547 S.W.2d 531 (Tenn.1977). In that case, the Tennessee Supreme Court promulgated the discontinuance of the M’Naghten test of insanity in Tennessee and adopted the test proposed by the American Law Institute in its Model Penal Code. The Graham decision stated:

“The Model Penal Code standards will be applied (1) in all criminal trials or retrials beginning on or after the date of the release of this opinion and (2) in all cases wherein appropriate special requests were submitted during the trial of the action, or the issue otherwise was fairly raised in the trial court and supported by competent and credible testimony, and the conviction has not become final. . . ” [Emphasis supplied] 547 S.W.2d 531, at 544.

This case was tried before the release of the Graham opinion. Although no special requests were submitted, the defendant insists that since the issue of insanity was fairly raised in the trial court and supported by competent and credible testimony, the Model Penal Code test was applicable. We think that the “issue” referred to in the above-quoted language does not mean the broad issue of insanity. It means that at trial an issue of law and fact must be made specifically on the Model Penal Code test. We are persuaded by the fact that the Supreme Court expressly refused to reverse the Graham case on the basis of the use of the M’Naghten rule by the trial court, and by the express statement that the M’Naghten rule was Tennessee law pri- or to the release of the Graham opinion. Assignment One is overruled.

Assignments of Error Two and Three complain of the admission into evidence of the defendant’s written statement given to Deputy Sheriff Pickard on 1 April 1976. Assignment Two is predicated upon the allegation that the use of the defendant’s statement in evidence is a violation of his constitutional right prohibiting self-incrimination as protected by the Fifth and Fourteenth Amendments to the United States Constitution. The third assignment of error is predicated upon the assertion that there was a violation of the defendant’s right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution.

A jury-out hearing was held by the trial judge to determine whether the statement should be suppressed. The evidence accredited by the trial judge was that the defendant sent a message to Deputy Sheriff Hershel Jones that he wanted to talk with him. Jones was busy and did not see the defendant on that day. On the next day, April 1, the defendant had Deputy R. W. Pickard contacted at home and given the message that the defendant wanted to talk with him. Pickard and Jones then visited the defendant and Jones again gave him his “Miranda Rights.” The defendant told them that he had been reading the Bible and wanted to “get it off his chest.” The defendant then gave a statement which was reduced to writing and signed by the defendant. He also signed an admonition and waiver form. The constitutionally protected rights against self-incrimination and to the advice of counsel may be relinquished if a defendant knowingly, intelligently and voluntarily waives them. The trial judge found that the defendant had the mental capacity to waive his rights and did so knowingly, intelligently and voluntarily. The trial judge’s findings have the weight of a jury verdict and this Court will not disturb his finding unless the evidence preponderates against it. Taylor v. State, 180 Tenn. 62, 171 S.W.2d 403 (1943); Janow v. State, 4 Tenn.Crim.App. 195, 470 S.W.2d 19 (1971). We do not find that the evidence preponderates against the trial judge’s findings.

Counsel was appointed for the defendant before he sent for the police officers and gave the statement. The defendant insists that Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) is authority in support of his assertion that counsel was not waived. Due to the factual difference in the two cases, we find Brewer v. Williams, supra, inapplicable. The United States Supreme Court expressly held in Brewer v. Williams, supra, that a defendant could waive his rights under the Sixth and Fourteenth Amendments without notice to his counsel. We think that when the defendant sent for these police officers on two separate days and gave a statement to them after having been warned of his Miranda rights and without questioning by the police officers, the trial judge was justified in finding that he knowingly and intelligently waived his rights. As stated, the mental capacity of the defendant to waive his right to counsel when the statement was given was a question for the trial judge. The trial judge weighed the evidence and found that the defendant possessed the capacity to waive counsel and to give the statement. His finding on this question has the weight of a jury verdict. Taylor v. State, supra; Janow v. State, supra. Assignments Two and Three are overruled.

Assignment of Error Four is that the evidence preponderates against the verdict. The defendant says that the basis for this assignment “is that taking the evidence as a whole as presented by the state psychiatrist it is evident that the appellant was so mentally disturbed that he was not able to defend himself.”

The record does not show that a plea of present insanity was made or that there was a determination by the judge or the jury of the defendant’s capacity to understand the nature and object of the proceedings against him and to consult with counsel and assist in preparing his defense. However, if there is any indication that the defendant is incapable of standing trial at the time of the retrial of this case, then the trial judge is directed to determine the defendant’s capacity in this regard or to submit the question to a jury. See, Cogburn v. State, 198 Tenn. 431, 281 S.W.2d 38 (1955); Mackey v. State, 537 S.W.2d 704 (Tenn.Crim.App.1975). There is evidence in the record upon which a trier of fact could find that the defendant was incompetent to stand trial. There is evidence pro and con upon this proposition and the question should be resolved.

The mental capacity of the defendant at the time of trial has no bearing on his guilt or innocence of committing the crime. We do not find that the evidence preponderates against the jury verdict finding the defendant guilty of murder in the second degree. We overrule this assignment.

In Assignment of Error Five, the defendant insists that the trial court erred by commenting upon the weight of the evidence in his jury instructions, violating Article VI, Section 9 of the Tennessee Constitution. The portion of the charge complained of is as follows:

“Expert witnesses, Dr. Kington, Dr. Si-egmann, Dr. Luton and Dr. Thatch, psychiatrists, have testified as to the mental condition of the defendant. They have testified that in their opinion the defendant knew right from wrong and knew that his act was wrong. They also testified that in their opinion the defendant is able to stand trial.”

The State does not deny that this is error but states that the remarks of the trial judge, if error, were harmless.

When asked if the defendant had the mental ability to distinguish right from wrong and knew the nature and quality of his act, Dr. Thatch testified as follows:

“A. That would be most difficult to say in that this man in testing is a little bit retarded. Those people find it awfully hard if they’re trying to keep up with the rest of us. I say, ‘rest of us’_with the average person. And they get frustrated and burst out in anger easily and, of course, drinking whiskey doesn’t help it any. Using whiskey. He says and I’m quite doubtful. As I say, most of them don’t remember unless it’s an epileptic _He doesn’t remember the incident; doesn’t know why.He remembers before that, but he doesn’t remember after that. You talk about forensic cases; I had to go back to Chattanooga once about a man that remembered everything right after_well, I can’t take that, but this man_he and his father had been out drinking, apparently, and he, I don’t believe, remembers exact events and he certainly-He said, ‘If I did it, I don’t know why.’
Q. Well, Dr. Thatch, based on your period of observation of him, is the defendant competent to understand the nature of the charged [sic] brought against him here today and to assist in his own defense?
A. He’s able to understand them; yes, sir. From talking to the other doctors, he needs help in advising his counsel and not too many of us know too much about that.”

Dr. Thatch also testified:

“Q. All right, sir, which I believe this report, in essence, says, T further find that he should be committed to a forensic service unit, since he is substantially liable to injure himself or others if not treated in a forensic service unit and treatment in such a unit is in this individual’s best interest.’ That is written on the statement; is it not?
A. Yes, sir. I’m sure of that. Whether it’s forensic or not, he certainly should be in a mental hospital for his own protection, if no one else’s.
Q. Then he definitely should be in a mental hospital is what you’re saying?
A. Yes, sir.”

As above shown, the trial judge oversimplified at least the testimony of Dr. Thatch. We cannot say that the comment of the trial judge was harmless error. Assignment Five is sustained.

The judgment of the trial court is reversed and the case is remanded for a new trial. Upon retrial, the trial judge will follow the Model Penal Code test adopted by the Supreme Court in Graham v. State, supra. If there is any question at the time of retrial as to the defendant’s mental capacity to stand trial, it should be resolved in accordance with Cogburn v. State, supra and Mackey v. State, supra.

DWYER, Presiding Judge,

dissenting.

I will agree that the charge as given by the trial court was error as expressed by my brethren. I do disagree, however, that the record should be remanded for a new trial. With all four psychiatrists testifying that appellant was competent to stand trial and three clearly testifying that at the time of the killing appellant was sane, the error of the trial court’s charge was harmless. T.C.A. 27-117. The appellant is entitled to a fair trial, not a perfect one. Lutwak v. United States, 344 U.S. 604, 617, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953). I would, in deference to my colleagues, affirm this conviction where the evidence of guilt is overwhelming and the evidence beyond a reasonable doubt reflects a mental awareness of his crime.

      . There was also evidence from Dr. Siegman that it would be difficult for the defendant “to follow and pay attention all of the time” at trial and his lawyer would have to spend extraordinary time with the defendant to “help him understand the procedures in court and be assuring.” Dr. Siegman described the defendant’s personality as “brittle” and that the defendant was a person who might break under stress. (The defendant did not testify, and his attorney cites Dr. Siegman’s testimony as a clear showing that the defendant’s mental and emotional condition was such that he could not adequately defend himself in this proceeding.)


author: CHADICK, Justice.

text:
    Frank Odis ROGERS, Petitioner, v. Teri Lyn ROGERS, Respondent.
    No. B-6798.
    Supreme Court of Texas.
    Jan. 4, 1978.
    Sudderth, Woodley & Dudley, Keith Woodley, Comanche, for petitioner.
    Darrell E. Haynes, Brownwood, for respondent.
   CHADICK, Justice.

The District Court of Mills County rendered a default judgment granting Mrs. Teri Lyn Rogers a divorce from her husband, Frank Odis Rogers. The judgment contained an order appointing Mrs. Rogers managing conservator of the couple’s infant son and made other orders appropriate to a suit affecting the parent-child relationship. After becoming aware of the judgment Mr. Rogers, by writ of error, brought the case to the Court of Civil Appeals for review. The record brought forward did not contain a Statement of Facts. The official court reporter did not attend and report the trial court’s proceedings. Mr. Rogers made no effort to secure a Statement of Facts from any source other than the official court reporter.

The sole ground for reversal in the Court of Civil Appeals was Mr. Rogers’ inability to obtain a Statement of Facts. That Court affirmed the judgment, concluding that Tex.Rev.Civ.Stat.Ann. art. 2324 did not impose a duty on the official court reporter to record the testimony in this case, absent a request to do so. No request was made by either party. 549 S.W.2d 471.

This Court has jurisdiction because the holding of the Court of Civil Appeals conflicts with Smith v. Smith, 544 S.W.2d 121 (Tex.1976). Tex.Rev.Civ.Stat.Ann. arts. 1728, 1821. In Smith a new trial was ordered when failure to obtain a Statement of Facts in a writ of error appeal resulted from no fault of the appealing party. For a conflict to exist between the decision of a Court of Civil Appeals and a prior decision of the Supreme Court the ruling of the Court of Civil Appeals “must be so far upon the same state of facts that decision of one case is necessarily conclusive of the decision in the other.” Gulf, Colorado & Sante Fe Railway Co. v. Hamilton, 126 Tex. 542, 89 S.W.2d 208 (1936); Garitty v. Rainey, 112 Tex. 369, 247 S.W. 825 (1923); 15 Tex. Jur.2d, Courts, § 32.

Smith v. Smith, supra, was a suit for divorce and child custody. The petitioner filed responsive pleadings to his wife’s suit but did not appear personally or by counsel at the hearing on the merits. Judgment was entered granting the wife a divorce and awarding her custody of a minor child. The record disclosed that the court reporter did not attend the trial and was unable to furnish petitioner a Statement of Pacts and that the trial judge had no independent memory of the facts and would not undertake to prepare a statement.

The procedural posture of this case and Smith differs only in that Rogers did not timely file responsive pleadings. The factual difference in the cases is that the record in this appeal does not show whether or not the trial judge could recall the facts adduced in the trial. Otherwise the procedural and factual circumstances of the two cases correspond in detail. It may also be noted that the record here presents no question of failure to object to the absence of the reporter or waiver of his presence at the trial as Rogers was not present in person or by counsel and could do neither.

The procedural difference in the cases is of no significance as it pertains to the scope of default and not to the fact that default occurred. The factual difference also is without materiality or significance as, prior to Smith, this Court approved a holding that diligence in obtaining a Statement of Pacts in a default judgment case did not require the appealing party to exhaust the provisions of Tex.R.Civ.P. 377(d). An appellant is not required to undertake to agree with an adversary upon the facts adduced at the trial or to rely upon the unaided memory of the trial judge who decided the merits of the case in order to obtain a Statement of Pacts. Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App.—Dallas 1975, writ ref’d). Therefore the residual and controlling facts in this and Smith correspond, and show that in both cases the appealing party was unable to obtain a Statement of Pacts from the official court reporter because that court official did not attend the trial of the case.

The Court of Civil Appeals attached controlling significance to a change in the provisions of Tex.Rev.Civ.Stat.Ann. art. 2324 prescribing the duties of official court reporters. At the time Smith was written the Article required the official court reporter to attend and report all trials in his court. Effective May 27, 1975, prior to the filing of the present suit, the Article was amended to require the reporter’s attendance only when requested. The opinion in Smith did not mention or refer to the statute but if the opinion is understood, as the Court of Civil Appeals believed it should be, to rest upon a reporter’s duty to attend and report proceedings, such factor is not absent in the case under consideration.

Texas Family Code § 11.14(d) requires that a record be made in all suits affecting the parent-child relationship unless waived by the parties with the consent of the court. This provision places a duty on the court to make a record of the proceedings in the same manner as did art. 2324 before its amendment. Although art. 2324 was changed in 1975 to require the making of a record only on request, Texas Family Code § 11.14(d), prescribing that a record be made in parent-child relationship cases, was not so amended.

However, the Court of Civil Appeals misapprehends the purport of Smith as it rests upon neither Art. 2324 nor Family Code § 11.14(d). The Smith opinion applies and reaffirms the rule in Robinson v. Robinson, 487 S.W.2d 713 (Tex.1972), that says: “. . . if an appellant exercises due diligence and through no fault of his own is unable to obtain a proper record of the evidence introduced, this may require a new trial where his right to have the case reviewed on appeal can be preserved in no other way.” The facts stated and the previous discussion disclose the conflict of the Court of Civil Appeals decision with Smith and that Mr. Rogers’ right to proper appellate review, due to no fault on his part, can be preserved only by a new trial.

The judgments of the courts below are reversed and the case is remanded for new trial.


author: PER CURIAM.

text:
    PHILLIPS PIPE LINE COMPANY, Petitioner, v. CLEAR CREEK PROPERTIES, INC., et al., Respondents.
    No. B-7018.
    Supreme Court of Texas.
    Jan. 4, 1978.
    Rehearing Denied Feb. 15, 1978.
    Stayton, Maloney, Hearne & Babb, Kent M. Rider, Austin, for petitioner.
    John H. Akin, Austin, for respondents.
   PER CURIAM.

Phillips Pipe Line Company replaced a pipeline that ran approximately two miles across land owned by Clear Creek Properties, Inc. While the new line was laid within the easement owned by Phillips, it was necessary during the construction to enter onto and cut trees in a strip of land owned by Clear Creek outside the easement.

After the pipeline was laid, Clear Creek brought a damage suit for trespass on the strip of land outside the easement. Phillips filed a cross-action to condemn, retroactively, a temporary working space over the strip of land that it had used during the pipeline construction three years earlier. The Court of Civil Appeals affirmed a judgment for Clear Creek under the trespass theory, holding that a pipe line company has no right to condemn for a temporary working space. 553 S.W.2d 389.

We agree that Phillips has no right to assert the power of eminent domain in this case three years after the land had been used. The right was not timely asserted. However, our action should not be understood as approving the statement in the Court of Civil Appeals opinion that there is no statutory or case authority that gives a pipe line company the right to condemn land for a temporary working space.

The application for writ of error is refused, no reversible error.


author: DALLY, Judge.

text:
    Ex parte Jimmy Ray BROWN.
    No. 57081.
    Court of Criminal Appeals of Texas. Panel No. 1.
    Feb. 8, 1978.
    Joe E. Anderson, San Antonio, court-appointed, for appellant.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

DALLY, Judge.

In this habeas corpus proceeding, petitioner seeks a reduction in his bail pending appeal.

On January 17, 1977, petitioner, after pleading guilty to aggravated robbery, was sentenced to no less than 5 nor more than 10 years in prison. During this robbery, which petitioner committed with another man, the victim was shot. Petitioner filed notice of appeal on January 24. On April 6, appeal bond was set at $50,000.00.

After the petitioner’s arrest, he was released on a bond of $10,000.00. He remained free pending trial for three years, during which time he remained in the jurisdiction of the court and met all appearances. His pre-trial bond was not reinstated because he was unable to pay the additional cash required by the bondsman.

Petitioner has lived in San Antonio most of his life. He is married and the father of two children. Both petitioner and his mother testified that they have no cash or other assets. Petitioner stated that he could afford a $5,000.00 bond.

Prior to his incarceration, petitioner worked as a waiter and attended college on his veteran’s benefits. His uncle, who is the head waiter at the establishment at which petitioner was employed, testified that he would hire petitioner if he were released. Petitioner stated that it was his desire to return to college.

The State offered no evidence; there is no evidence that the appellant has a prior criminal record.

We conclude that petitioner has met his burden of proving that the appeal bond is excessive. Ex parte August, 552 S.W.2d 169 (Tex.Cr.App.1977); Ex parte Jones, 468 S.W.2d 74 (Tex.Cr.App.1971); Ex parte Lanham, 459 S.W.2d 850 (Tex.Cr.App.1970). Bond will be reduced and set at $15,000.00.

It is so ordered.


author: ROBERTS, Judge.

text:
    Roberto HERRERA and Mellie Aguilar, Appellants, v. The STATE of Texas, Appellee.
    No. 53544.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 25, 1978.
    Rehearing Denied Feb. 22, 1978.

      Bob Kuhn, Austin, for appellants.
    Robert 0. Smith, Dist. Atty. and Richard E. Banks, Asst. Dist. Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

These are appeals from convictions for possession of more than four ounces of marihuana. The appellants waived a trial by jury and entered pleas of not guilty before the court. The trial judge assessed appellant Herrera’s punishment at ten years, probated, and appellant Aguilar’s punishment at five years, probated.

The appellants contend that the trial judge erred by admitting State’s Exhibits Nos. 2 through 12, and that the evidence was insufficient to support the trial judge’s findings of guilt. We affirm.

The record reveals that at approximately 2:00 p. m., on May 30,1974, Officer Shaw of the Austin Police Department responded to a reported collision in the 1200 block of Tinnin Ford Drive. When he arrived, Shaw learned that someone in a Plymouth had backed into a parked Fiat and then left the scene of the accident. Shaw investigated the damaged Fiat and found that the trunk had been knocked open.

As Shaw inspected the damage, he noticed two gallon jars which appeared to contain marihuana. Shaw summoned Sergeant Dowdle of the narcotics section. Dowdle arrived and together Shaw and Dowdle removed the substance from the Fiat. Shaw also checked the registration of the Fiat and was informed that the car was registered by one Frederico Herrera from Corpus Christi. Shaw asked the bystanders if anyone knew a person named Frederico Herrera and Shaw was informed that a Manuel Herrera lived in an apartment complex immediately adjacent to the scene of the collision. Someone pointed out the window of apartment # 322 in which Manuel Herrera lived. Shaw and Dowdle saw two marihuana plants in the window.

Dowdle subsequently obtained a search warrant for apartment 322, Consul Apartments, 1201 Tinnin Ford Drive. Shaw, Dowdle and Officer Huckabee executed the search warrant at 4:15 p. m. on May 30, 1974.

When the officers entered the apartment, no one was present. Their search revealed the following contraband: (1) 1.72 pounds of manicured marihuana in the hall closet; (2) 2.31 pounds of marihuana seeds in a bag in the hall closet; (3) 1.89 ounces of loose marihuana in the hall closet; (4) two marihuana plants weighing 1.11 ounces growing near the window overlooking the scene of the collision; (5) 4.78 ounces of marihuana seeds in the hall closet; (6) 2.14 ounces of marihuana “flowering tops” in the refrigerator; (7) .94 ounces of marihuana seeds in the center top dresser drawer in the northwest bedroom; (8) .83 ounces of marihuana “roaches” and seeds on the top of the bar in the kitchen; (9) 2.06 ounces of marihuana seeds on top of the bar in the kitchen; (10) 2.28 ounces of loose marihuana in a metal tray in the northeast bedroom; (11) 1.92 ounces of manicured marihuana in the top right-hand dresser drawer in the northeast bedroom; and (12) 1.05 ounces of loose marihuana on the nightstand in the northeast bedroom. During the search, the officers also seized personal papers and photographs found throughout the apartment.

The appellants’ first contention is that the personal papers and photographs seized during the search were inadmissible as the product of an illegal search and seizure. Specifically, the appellants assert that the seizure of State’s Exhibits Nos. 2 through 12 was not authorized by the search warrant and that these items constituted mere evidence.

State’s Exhibit No. 2 was an envelope, seized in the kitchen, addressed to Mr. and Mrs. Manuel Herrera, 1201 Tinnin Ford Road # 332. State’s Exhibit No. 3 was a receipt from Brackenridge Hospital. It indicated that Manuel Herrera had paid a bill for Mellie Herrera on November 6,1973. It was found in the northeast bedroom of the apartment. State’s Exhibit No. 4 was a City of Austin utility statement addressed to Roberto Herrera, c/o Mems Herrera, 1201 Tinnin Ford # 322. The due date on the statement was May 21, 1974. This statement was seized in the kitchen. State’s Exhibit No. 5 was a City of Austin utility statement which indicated that Roberto Herrera was the customer located at 1201 Tinnin Ford # 322. The due date on the statement was March 21, 1974. This statement was seized in the northeast bedroom. State’s Exhibit No. 6 was an envelope addressed to Mr. or Mrs. Mems Herrera, 1201 Tinnin Ford Road, apartment 32_. The envelope had been torn open in such a manner that it was impossible to ascertain if there had been a third letter designating the apartment number. It was postmarked March 9, 1974, and seized in the northeast bedroom. State’s Exhibit No. 7 was an envelope addressed to Manuel Herrera, 1201 Tinnin Ford # 322. It was found in the northeast bedroom and it was postmarked on May 18,1974. State’s Exhibit No. 8 was a copy of a contract for the rental of apartment 322, 1201 Tinnin Ford. It was dated May 3,1974, and the lease began on June 1, 1974. It also indicated that the resident of the apartment would be Manuel Herrera. It was seized in the bar in the kitchen. State’s Exhibit No. 9 was a carbon copy of the lease introduced as State’s Exhibit No. 8. It was also seized in the kitchen. State’s Exhibit No. 10 was an envelope containing a statement from Brackenridge Hospital. It was addressed to Manuel Herrera, 1201 Tinnin Fork # 322. It indicated that Mellie Herrera was the patient. It was dated August 9, 1973, postmarked August 23, 1973, and was seized in the northeast bedroom. State’s Exhibit No. 11 was a photograph of a male subsequently identified as the appellant Roberto Herrera. It was seized in the top left dresser drawer of the northeast bedroom. State’s Exhibit No. 12 was a photograph of a female subsequently identified as the appellant Mellie Herrera Aguilar.

The appellants’ contention that State’s Exhibits Nos. 2 through 12 were mere evidence and not subject to seizure because there was no “nexus . . . between the item[s] . . seized and [the] criminal behavior,” Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), is without merit. In Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1971), the defendant contended, inter alia, that an envelope found during a search of his apartment was the fruit of an illegal search. The envelope, which was addressed to the appellant, had been seized from a cardboard box in which marihuana had been found. This Court there stated:

“In the instant case, the envelope seized was found in the same cardboard carton which contained the marihuana. The testimony relating to the envelope was admitted solely to show that an envelope addressed to appellant at the address searched existed and was found with the contraband. The contents were not admitted into evidence. Under such circumstances, we do not find any violation of appellant’s right under the United States Constitution. Warden, Maryland Penitentiary v. Hayden, supra.
Further, we perceive no violation of Article I, Section 9, of the Texas Constitution. While the ‘mere evidence’ rule was followed by this court for a time, recent cases have followed the reasoning of the United States Supreme Court in Warden, Maryland Penitentiary v. Hayden, supra, e. g., Brown v. State [Tex.Cr.App.], 475 S.W.2d 938; Satery v. State, Tex.Cr.App., 455 S.W.2d 294; Slaton v. State, Tex.Cr.App., 418 S.W.2d 508.” (Footnote omitted)

More closely in point is Phenix v. State, 488 S.W.2d 759 (Tex.Cr.App.1972). There, a search of the defendant’s apartment yielded an insurance company “Member’s Identification Card,” a note bearing the defendant’s initials, and the defendant’s motor vehicle operator’s license. The insurance company “Member’s Identification Card” and the note were found on top of a desk in plain view, and the license was found in a billfold next to a tobacco pouch that contained marihuana. We there held the exhibits admissible. See also Oubre v. State, 542 S.W.2d 875 (Tex.Cr.App.1976).

In the present case, State’s Exhibits Nos. 2 through 12 were seized pursuant to the execution of a valid warrant. Some of the items were in plain view. Marihuana was found in every room in which items were seized. The items seized were used for the purpose of showing the appellants’ joint occupancy of the apartment, and this joint occupancy was relevant to the issue of who or whom possessed the marihuana seized therein. The nexus between the search for the marihuana and the evidence of criminal behavior (i. e., State's Exhibits Nos. 2 through 12) was thus established. State’s Exhibits Nos. 2 through 12 were properly subject to seizure. Oubre v. State, supra; Phenix v. State, supra; Haynes v. State, supra. The appellants’ first contention is overruled.

The appellants’ second contention is that the evidence was insufficient to sustain the trial judge’s findings of guilt.

It is well established that in order to prove possession of a controlled substance the State must prove beyond a reasonable doubt that an appellant exercised actual care, control and management over the contraband and that an appellant had knowledge that the substance was contraband. Guitierrez v. State, 533 S.W.2d 14 (Tex.Cr.App.1976); Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976). Possession of contraband need not be exclusive and evidence which shows that the appellants jointly possessed the contraband is sufficient. Woods v. State, supra; Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1975). However, where an appellant is not in exclusive possession of the premises, it cannot be concluded that he had knowledge of the contraband and control over it unless there are additional independent facts and circumstances which affirmatively link him to the contraband. Woods v. State, supra; Higgins v. State, 515 S.W.2d 268 (Tex.Cr.App.1974).

The appellants rely upon our holdings in Williams v. State, 521 S.W.2d 275 (Tex.Cr.App.1975); Wright v. State, 500 S.W.2d 170 (Tex.Cr.App.1973); Williams v. State, 498 S.W.2d 340 (Tex.Cr.App.1973); and Reid v. State, 474 S.W.2d 702 (Tex.Cr.App.1972). However, in all of these cases either the defendant(s) or someone else was present when the search was conducted and the contraband seized. Moreover, in each of these cases, except the earlier Williams case, the contraband was not in plain view. These two factors distinguish the cases relied upon by the appellants from the instant factual situation.

In the present case, marihuana plants were found growing in the apartment. Marihuana seeds, “roaches,” and loose marihuana were found in plain view in the kitchen and in the northeast bedroom. We conclude that the evidence was sufficient to show that whoever possessed the marihuana knew it was contraband. Cf. Williams v. State, 524 S.W.2d 705 (Tex.Cr.App.1975).

The more difficult question is whether State’s Exhibits Nos. 2 through 12 affirmatively link the appellants with the apartment, thereby proving that the appellants jointly possessed and controlled the contraband. A review of State’s Exhibits Nos. 2 through 12 reveals that Nos. 2 through 5 and 7 through 10 all bear the address of the apartment. State’s Exhibit No. 6 was incomplete as to the apartment number. Moreover, State’s Exhibits Nos. 2 through 10 were all addressed to or referred to one or both of the appellants. Finally, State’s Exhibits Nos. 11 and 12 were pictures of the appellants. We hold that these facts sufficiently link the appellants to the apartment. Cf. Haynes v. State, supra. The appellants’ second contention is overruled.

The judgments are affirmed.

      . Appellant Aguilar was indicted under the name Mellie Herrera. At the start of the trial, the appellant stated that her name was Mellie Aguilar, not Mellie Herrera, and that she was not and never had been married to her co-defendant, Roberto Herrera. The trial judge, with the permission of the appellant Aguilar, ordered that the indictment be altered to reflect Aguilar’s allegedly correct name.

      . Cf. Attwood v. State, 509 S.W.2d 342 (Tex.Cr.App.1974); Chambers v. State, 508 S.W.2d 348 (Tex.Cr.App.1974); Arnott v. State, 498 S.W.2d 166 (Tex.Cr.App.1973); Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976).


text:
    Ex parte Michael Eugene HARP.
    No. 56408.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 1, 1978.
    Before THOMAS G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

DALLY, Judge.

We have here a post-conviction application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

The petitioner was convicted of felony theft in Cause No. 6239 in the 52nd District Court of Coryell County and granted probation on January 19,1965. On April 12, 1965, petitioner’s probation was revoked and he was sentenced to serve a 5 year prison term. No appeal was taken from the order revoking probation and the appellant has served that sentence. Because of the serious collateral consequences arising from a conviction for felony theft the doctrine of mootness does not prohibit this collateral attack. See Ex parte Guzman, 551 S.W.2d 387 (Tex.Cr.App.1977); Ex parte Burt, 499 S.W.2d 109 (Tex.Cr.App.1973); Ex parte Jentsch, 510 S.W.2d 320 (Tex.Cr.App.1974); Ex parte Langston, 510 S.W.2d 603 (Tex.Cr.App.1974).

The petitioner now alleges that his conviction is void and that it is not a final conviction because at the time of the revocation of probation hearing he was indigent, he did not have counsel, and he did not waive representation by counsel.

The trial court, after hearing evidence in this habeas corpus proceeding, concluded that the petitioner was indigent, he did not have counsel, and he did not waive counsel at the hearing when the court ordered the revocation of probation. Although there is some conflict in the evidence, the evidence supports the trial court’s findings. The conviction in Cause No. 6239 in the 52nd District Court of Cor-yell County is not a valid final conviction.

The petitioner also alleges that this conviction has been used for the enhancement of punishment in Dallas County in a cause for which he is now imprisoned. Although it appears that the Dallas County conviction cause has been appealed and affirmed and the record is available to this Court we refuse to determine whether that conviction is a valid conviction until that question now raised is properly presented in the convicting court under the provisions of Art. 11.07, V.A.C.C.P.

The relief requested is granted in part and denied in part.