source: Caselaw Access Project

author: HARBISON, Justice.

license: Public Domain

text:
    HUMANA OF TENNESSEE, d/b/a McFarland Hospital, Appellant, v. TENNESSEE HEALTH FACILITIES COMMISSION et al., Appellees.
    Supreme Court of Tennessee.
    April 25, 1977.

      William M. Leech, Jr., Columbia, for appellant.
    Michael E. Terry, Asst. Atty. Gen., Nashville, James H. Kinnard, Lebanon, Mark A. Schneider, Nashville, for appellees.
   OPINION

HARBISON, Justice.

This case arises under the Tennessee Health Facilities Act of 1973, T.C.A. § 53-5401 et seq. After administrative procedures and hearings provided for in the statutes, the Health Facilities Commission granted a certificate of need to appellee University Medical Center, Inc., authorizing it to construct a sixty-five-bed specialty care hospital in Wilson County, Tennessee.

The application was opposed at all administrative stages by appellant, which owns and operates a 137-bed general care hospital in Wilson County. Appellant sought review of the final order of the Commission in the chancery court. After considering the records of the administrative hearings and additional evidence filed in court, the Chancellor affirmed the action of the Commission. Appellant seeks further review here.

Although the record reveals some procedural irregularities, no error sufficiently material or prejudicial to warrant reversal has been shown. Accordingly we affirm the judgment of the Chancellor.

Before discussing the specific assignments of error, we think it appropriate to summarize the procedural background.

I. History of the Litigation

In January 1975 University Medical Center, Inc., a nonprofit corporation, filed its application with the Tennessee Health Facilities Commission, seeking permission to build a sixty-five bed hospital in Wilson County. As provided by T.C.A. § 53-5412, the Commission referred the application to an area-wide health planning agency, the Mid-Cumberland Comprehensive Health Planning Council. After a public hearing held on February 27, 1975, that agency recommended that the certificate be granted. Its recommendation was forwarded to the State Health Planning Agency for review, pursuant to T.C.A. § 53-5413, and the latter recommended approval by the Commission.

On March 25, 1975 the Health Facilities Commission considered the application in a review-and-comment session. At that time the application failed to receive six affirmative votes as required by T.C.A. § 53-5407. Only eight members of the Commission were in attendance. Of these, four voted for the application, two against, and two members abstained.

Pursuant to T.C.A. § 53-5415, the applicant was granted a public hearing before the Commission. This was held on May 29, 1975, at which time a number of witnesses testified. Following that hearing, the Commission approved the application by a vote of nine to one.

Appellant sought review of the decision of the Commission by petition for certiorari filed in the chancery court at Nashville on July 23, 1975. This was after the effective date of the Uniform Administrative Procedures Act, T.C.A. § 4-507 et seq., but the administrative hearings had been held before July 1, 1975, when most of the provisions of the Administrative Procedures Act went into effect.

Therefore, in the chancery court, the matter was treated as a certiorari proceeding, the Chancellor at one point holding that review would be had as under a “common law” writ of certiorari, T.C.A. § 27-801 et seq. Nevertheless, after the ease had reached the chancery court, appellant took fifteen depositions, comprising nearly four hundred pages of testimony, calling as witnesses all but one member of the Health Facilities Commission, together with personnel on the staff of the Commission and an official of the Mid-Cumberland Comprehensive Health Planning Council.

These depositions were very wide ranging in scope, involving not only the procedures used before the respective agencies, but also inquiries of the various Commission members as to the reasons for their votes and the evidence they considered.

The Chancellor apparently reviewed all of these depositions, together with the records made before the administrative agencies, and after considering the numerous assignments of error made before him by appellant, he affirmed the action of the Health Facilities Commission in granting the application.

Appellant appealed to the Court of Appeals as under a certiorari proceeding, but after the cause reached that Court, appellant for the first time invoked the provisions of the Uniform Administrative Procedures Act and sought to have the cause transferred here pursuant to T.C.A. § 4-524. The Court of Appeals granted the motion, and we have concluded to allow the request of appellant to have the cause reviewed in this Court under the provisions of that Act.

The matter is not free from uncertainty, and it is possible that the case should be treated as a certiorari proceeding, as it began. This, however, might involve a remand to the Court of Appeals. More than two years have already been consumed in administrative and judicial proceedings since the filing of the original application for a certificate. Therefore, we believe it appropriate to dispose of the case here, despite its unusual procedural history.

II. Judicial Review Under the Administrative Procedures Act

In the recent case of Metropolitan Government of Nashville and Davidson County v. Shacklett, released for publication at Nashville on January 24, 1977, the Court had occasion to consider the provisions of the Administrative Procedures Act governing judicial review, both in the chancery court and on appeal, T.C.A. §§ 4-523, 524.

There, it was noted that the provisions of T.C.A. § 4-523(h) provide for a limited review in the chancery court, rather than a de novo review upon the record. New evidence may be received in that court only in cases “of alleged irregularities in procedure before the agency, not shown in the record . . . .” T.C.A. § 4-523(g). Otherwise, review is confined to the record made before the administrative agency.

There are provisions for remand to the agency for further proceedings. On the record before it, however, the court may reverse or modify the decision of the agency only if it finds that the agency findings, inferences, conclusions or decisions are:

“(1) in violation of constitutional or statutory provisions;
(2) in excess of the statutory authority of the agency;
(3) made upon unlawful procedure;
(4) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(5) unsupported by evidence which is both substantial and material in light of the entire record.” T.C.A. 4-523(h).

The statute further provides that in determining the “substantiality” of evidence the chancellor shall “take into account whatever in the record fairly detracts from its weight, but the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.”

In light of this language, it appears that the General Assembly intended that the trial court should review factual issues upon a standard of substantial and material evidence. The court is directed to consider the entire record, including any part detracting from the evidence supporting the findings of the administrative body. Nevertheless the trial court is not to review issues of fact de novo or to “substitute its judgment for that of the agency as to the weight of evidence . . . .”

The statute also contains a “harmless error” provision, stating that no agency decision in a contested case be reversed, remanded or modified “unless for errors which affect the merits of the decision complained of.” T.C.A. § 4—523(i).

Appeals under the Act are taken directly to the Supreme Court “as in chancery cases”. T.C.A. § 4-524. In the Shacklett case, supra, however, the Court construed that phrase as follows:

“We do not believe that the drafters of the Administrative Procedures Act intended that there be a broad, or de novo, review in this Court of the decision of a trial judge, when his action, initially, is confined to a narrow and statutorily prescribed review of the record made before the administrative agency. We consider that it would be impracticable for this Court to afford any broader or more comprehensive review to cases arising under the Act than is afforded to them by the trial court in the first instance, except, of course, this Court can review for the first time any new or additional evidence introduced in the chancery court with respect to ‘alleged irregularities in procedure’ before the agency as provided in T.C.A. § 4-523(g). Therefore we do not deem the words ‘as in chancery cases’ contained in T.C.A. § 4-524 to be definitive of the scope of review to be given such cases in this Court, but merely as descriptive of the general procedure to be followed in bringing cases from the chancery court to this Court, where procedures are not otherwise expressly set out in the Administrative Procedures Act itself.”

1 Accordingly, insofar as appellant suggests a de novo review of the factual issues presented before the Commission, its assignments are not well taken. The record must be reviewed here, as in the trial court, under the statutory criteria.

III. Procedural Assignments of Appellant

In this Court appellant has asserted, for the first time, that the record transmitted to the chancery court from the Health Facilities Commission was incomplete, in that it did not contain a copy of the final order of the Commission granting the certificate of need. There is no contention that the Commission failed to enter an order or to furnish the parties with copies. The omission of the final order apparently was never called to the attention of the Chancellor while the case was pending before him. Indeed, counsel for appellant concedes that the omission was not discovered until appellate briefs were being prepared.

Ordinarily, of course, the omission of the final decision of the Commission would be a serious matter. T.C.A. § 4-519 requires that a final decision or order in a contested case shall be in writing or stated in the record. The final decision must include findings of fact, conclusions of law and a statement of reasons for the ultimate decision. Further, the record in a contested case is required to include any decision, opinion or report by the agency or the officer presiding at the hearing. T.C.A. § 4-514(f)(6).

We have already noted that the present ease has followed an unusual procedural course. In the chancery court, appellant was permitted to take extensive new evidence, not by any means confined to “irregularities in procedure before the agency, not shown in the record . . . .” as provided in T.C.A. § 4-523(g). Not only were the Commissioners and personnel of the agencies interrogated at length, but a copy of the deliberative session of the Commission, at which it decided to grant the application, was filed as an exhibit. Since all of this evidence was apparently considered by the Chancellor, and since no mention was made in the chancery court of the omission of the final order itself, we are of the opinion that appellant has waived this procedural irregularity and that no useful purpose would now be served by our remanding the case to the chancery court, with directions that the Commission supply a copy of the order for the record. Indeed, appellant almost concedes as much in its brief, and primarily relies upon other assignments of error for reversal. Under these circumstances, we overrule the assignments dealing with the omission of the final order of the Commission from the administrative record.

Appellant further insists that it was deprived of the right of cross-examination of witnesses before the area-wide agency, the Mid-Cumberland Comprehensive Health Planning Council. In this regard, the record shows that a physician testified for the applicant, and was then required by reason of prior commitments to leave the hearing. It is not shown what evidence, if any, appellant expected to elicit from him by cross-examination. This witness was available and was cross-examined at a subsequent hearing before the Health Facilities Commission. Although T.C.A. § 53-5412(B) does provide for cross-examination of opposing witnesses before an area-wide health planning agency, we agree with the Chancellor that the denial of cross-examination to appellant under the above circumstances does not amount to reversible error.

The most serious assignment of error, from a purely procedural standpoint, deals with the receipt by members of the Health Facilities Commission of ex parte, informal, personal communications concerning the subject matter of the hearings. This practice is expressly prohibited by T.C.A. § 4-521—one of the sections of the Act, however, which had not taken effect at the time the administrative hearings involved in this case were being held. Several members of the Commission apparently had informal discussions with other persons prior to the final hearing on May 29, 1975, some of these being merely general inquiries but some of them dealing with the issue of the need for an additional hospital in Wilson County.

As noted by the Chancellor, none of the members of the Commission appear to have been motivated by anything other than a sincere desire to obtain information, and none of them acted for any improper purpose. Most of the information which they received was of a general nature, and all of it was cumulative to other testimony given at the formal hearing. The Chancellor noted that T.C.A. § 4-521 does not contain any express provisions as to the consequences of a violation, and a reviewing court should reverse under T.C.A. § 4—523(i) only if it finds that an error affected the merits of the decision complained of. Since the provisions of T.C.A. § 4-521 were not in effect at the time of the administrative hearings, there was not an actual violation of the Act, and we can find nothing in the testimony of any of the Commissioners which would lead us to believe that information was received which materially affected their ultimate decision. We have previously noted that an affirmative vote of only six members was required under T.C.A. § 53-5407, while nine members actually concurred in the final decision which was reached. Only one member initiated any extensive discussions, and his actions were clearly well-intentioned and motivated only by a desire to render a conscientious decision. The assignments of error pertaining to this issue are, therefore, overruled.

Appellant contends that the administrative agencies had failed to promulgate adequate written criteria or guidelines for evaluating applications for certificates at the time of the hearings in question. This contention is not borne out by the record, which reveals both written guidelines and hearing procedures in effect when the hearings were held.

Appellant further assigns as error the absence of a public hearing by an adjacent area-wide agency, the Upper Cumberland Council, having jurisdiction over counties east of Wilson, from which the proposed facilities might receive patients. The terms of T.C.A. § 53-5412 provide for public hearings by only one area agency, and this assignment is overruled.

IV. Substantive Assignments of Error

As pointed out by the Chancellor, appellant’s contentions on the merits of this case “when stripped to the bare essentials amount to an assertion that there is no evidence in the record to support the Commission’s findings.”

Appellant has taken issue with each and every aspect of the handling of the subject application, both before the area-wide agency and before the Health Facilities Commission itself. A review of the record makes it readily apparent that there was conflicting evidence offered in the administrative hearings, and evidence from which diverse inferences and conclusions could be drawn.

The Health Facilities Act, T.C.A. § 53-5411, contains the basis upon which a certificate of need may be issued and the criteria for certification of such need.

It provides:

“(A) No certificate of need shall be issued unless the action proposed in the application for such certificate is necessary to provide required health care in the area to be served, can be economically accomplished and maintained, and will contribute to the orderly development of adequate and effective health care services. Criteria for certification of need shall be prescribed by rules and regulations of the commission which shall take into consideration: (1) the availability of facilities or services which may serve as alternatives or substitutes; (2) the need for such equipment and services in the area; (3) possible economies and improvement in services to be anticipated in the operation of joint central services; (4) the adequacy of financial resources and sources of present and future revenue; (5) the availability of sufficient manpower in the several professional disciplines required; and (6) such other factors as may be established or required by federal regulations.”

Despite appellant’s sincere and thoughtful contentions to the contrary, we are of the opinion that there was substantial and material evidence offered on behalf of ap-pellee with regard to each of the criteria, and that the Commission took all of these into consideration in reaching its decision.

One of the principal insistences of appellant is that the Commission granted the certificate simply because some sixteen physicians, practicing various specialties, wished to locate in Wilson County and would do so only if the facility under consideration were authorized. We do not find this to be the primary or sole basis upon which the Commission reached its decision, although we do note that one of the criteria for certification of need specified in the statute is “the availability of sufficient manpower in the several professional disciplines required . . . .” Accordingly the availability of medical personnel was a legitimate factor for the Commission to consider.

There is evidence in the record that a very large percentage of the citizens in the area to be serviced seek health care in Davidson County or in other areas, and this factor was given great weight, particularly by the area-wide agency in making its recommendation. Appellant contends that its general care hospital is more than adequate to meet the needs of the area to be served, and that secondary and tertiary health care are easily available in neighboring Davidson County, where Nashville affords some of the most advanced medical facilities in the Southeastern United States.

There is substantial evidence, however, that the existing hospital has failed to attract needed medical personnel into the area, and that portions of Wilson County and other counties adjoining it to the east have been considered “medically deprived” for a long period of time, both from the standpoint of medical practitioners and of health care facilities. Wilson County is shown to be one of the most rapidly growing counties in the region.

There are in the record conflicting projections as to present and future demands for hospital facilities in the area. None of these projections, or formulas, amounted to “rules” of the Health Facilities Commission within the meaning of the Administrative Procedures Act, in our opinion, and no one of them appears to have been given controlling weight by the Commission in its consideration of the evidence. Although appellant offered countervailing evidence as to the need for facilities, based upon what it characterizes as more recent data, it is clear from the record that there was material and substantial evidence before the Commission showing a future need of health care facilities which would justify the granting of the subject application.

It is pointed out by appellant in its brief that the determinations to be made by administrative agencies, such as the Health Facilities Commission, are of a complex nature, involving the weighing and consideration of many conflicting factors and elements. The Health Facilities Act of 1973 represents an attempt on the part of the Tennessee General Assembly to regulate the construction and expansion of health care facilities, consonant with a number of federal statutes and policies on the subject. Appellant correctly points out that the task of the Commission is not unlike that of a public service commission regulating public utilities, both as to initial entry and certification and as to expansion of services. Public need under all of the circumstances is the ultimate consideration, and the legislation is designed to prevent costly, inefficient development or duplication of health care facilities. For a comprehensive review and evaluation of state statutes of this type, see Havighurst, Regulation of Health Facilities and Services by “Certificate of Need,”59 Va.L.Rev. 1143 (1973).

Certainly there was evidence offered on behalf of appellant at all stages of the proceedings which would have justified a decision in its favor, and a determination that the new facility was not needed in the proposed service area. This was by no means the only evidence in the record, however, and reviewing courts cannot reverse an agency merely because they might have decided the matter differently. Appellant is an existing and established hospital and clearly had an interest in opposing the application, particularly since it was just completing an expensive addition to its own facilities. The trier of fact was entitled to consider this in evaluating appellant’s contentions.

The decision which had to be reached in this case was basically one for determination by the administrative agencies charged with making it, on disputed evidence, representing divided community sentiments and opinions. We find no error, either substantive or procedural, which would warrant a reversal of the decision of the Commission.

. The judgment of the Chancery Court is affirmed and the cause is remanded to that Court for such further orders as may be necessary for implementation of its judgment. Costs are taxed to the appellant.

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


author: FONES, Justice. HENRY, Justice,

text:
    Eddie SCHARFF, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    May 2, 1977.

      Walter C. Kurtz, Knoxville, for petitioner.
    Brooks McLemore, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, for respondent.
   OPINION

FONES, Justice.

We granted certiorari in this case because of the pending question of the constitutionality of the death penalty statute and to further consider the admissibility of certain statements obtained from defendant. We will also address, to the extent the record permits, the status of our statutes granting women the option to serve or not when summoned to jury duty.

The jury found the defendant guilty of murder in the first degree and fixed his punishment at death by electrocution. The Court of Criminal Appeals affirmed all aspects of the trial court verdict, although one member dissented on the majority’s handling of the issue of discriminatory composition of the jury. On February 9, 1977, the Governor commuted defendant’s sentence to life imprisonment.

The victim of this brutal murder was an eighteen (18) year old female. She was last seen alive by her parents on October 22, 1974, in the accompaniment of defendant and one Donnie Moore.

On October 24,1974, defendant voluntarily called Knox County Deputy Sheriff Riggs to relate the circumstances of the whereabouts of the victim. Riggs testified that the defendant claimed that he, Moore and two individuals named Mingle and Carmen were all sniffing paint with the victim in an area near the Holston River. All participants in this activity were at one time m defendant’s car. Defendant claimed that while he and Moore were in the back seat of his car sniffing paint the other two men grabbed the victim, took her outside and began beating her severely. He stated that he thought the victim had run away and knew nothing more about her whereabouts. Defendant then led Riggs to the site of the incident. On October 25, Officer Riggs, with helicopter assistance located the victim’s body in the Holston River.

On that same day warrants were obtained but not served on defendant and all others he had been with on the night of the murder. Defendant actually assisted officers in the apprehension of the others and was taken into custody solely to protect his informant status. A consent to search defendant’s car was also obtained from defendant.

After interrogating Moore and his wife, officers began to suspect defendant was lying. Sometime on October 26, defendant became a suspect and was advised of his rights. He waived counsel and agreed to cooperate. He was repeatedly questioned throughout the day and evening of the 26th until approximately 2:30 a. m. on the 27th when he was returned to his cell. During the time he gave several different accounts of what occurred but none inculpatory.

Sometime during the late morning hours of the 27th, defendant began to act as if intoxicated. Although obviously under the influence of something, a waiver of presentment was obtained from defendant by an assistant district attorney general. However, no questioning of the accused was conducted on the 27th after it became obvious he was under the influence of drugs.

On the 28th, the defendant appeared normal to officers, was readvised of his rights and executed a waiver. At that time a handwritten statement was obtained from defendant in which he admitted being alone with the victim, sniffing paint on the evening of the 22nd when he passed out. He said he awoke and found the victim on the ground and then became alarmed and put her in the trunk of his car. He stated he drove around with her body and finally dragged her from the trunk of his car and dropped her into the Holston River. He did not admit killing the victim.

Subsequent to this confession on the 28th, defendant was arraigned before a general sessions judge. The general sessions judge was called to testify for the prosecution and stated that at the time of arraignment defendant appeared coherent and understood his rights.

The search of defendant’s car produced a lug wrench with unidentifiable blood stains on it. A vacuum of the contents of the trunk of defendant’s automobile also produced hair samples which matched the victim’s. A substantial amount of other scientific evidence was also introduced at trial which linked defendant with the crime.

A pathologist testified that the cause of death was approximately thirty (30) heavy blows to the victim’s head from a smooth blunt instrument. In this testimony the State, over defense objection, introduced several slides of the victim’s head to show the multiplicity of the blows. The pathologist testified that the lug wrench taken from defendant’s car could easily have been the murder weapon.

Donnie Moore testified at trial that he had been with the defendant and victim the night of the murder. All three (3) had gone to his apartment to sniff paint. Sometime during the evening defendant stated that he and the victim wished to be alone and left. The next day defendant returned to Moore’s apartment and showed Moore the victim’s body in his trunk, stating, “I killed her.” After Moore refused to help with the disposal of the victim’s body defendant left.

Defendant’s testimony at trial was somewhat different from any of his other statements. He denied being alone with the victim and laid the responsibility of her death on two different individuals named Caylor and Peacock. He said that those men murdered the victim because they believed that she was a drug informant. He denied knowledge of his confession made on October 28.

I.

Defendant contests the admission of any statements characterized as “inculpatory” or “made against his interest” which were obtained on either October 25, 26, or 27, as well as the handwritten, later typewritten statement of October 28. He alleges these statements were made while he was incapacitated and were, as well, the products of an illegal arrest.

Our review of the record reflects that only the statement of October 28 was ever utilized by the prosecution. Furthermore, although reference was made to other statements in cross-examination of the defendant and in the testimony in the motion to suppress, none were ever introduced into evidence for any purpose nor were any shown to be inculpating. Consequently, our review is limited to the statement made on October 28.

Both the trial judge and the Court of Criminal Appeals held the statement rendered on October 28 to have been freely and voluntarily given and specifically found that defendant was not laboring under the influence of drugs at the time. Such concurrent findings are all but conclusive if there is any evidence to support them. State v. Chandler [and Dearing], 547 S.W.2d 918 (Tenn.1977); Monts v. State, 218 Tenn. 31, 400 S.W.2d 722 (1966). We find the testimony of the general sessions judge as well as the testimony of the police officers that defendant was coherent on the 28th constitutes sufficient evidence that defendant was free from any drug influence at the time the statement was taken.

Defendant also contends that the statement of the 28th was as a consequence and a direct product of the illegal apprehension occurring on the 25th of October. Neither the trial court nor the Court of Criminal Appeals specifically dealt with this issue. In State v. Chandler [and Dearing], supra, we delineated the factors that the United States Supreme Court set forth in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), that must be considered in the review of statements taken pursuant to an illegal arrest. See 547 S.W.2d at 922. However, there is no need for such review where there was no illegal arrest.

In the present case the testimony demonstrates that the initial apprehension of defendant was with his own consent and for his own protection. He actually assisted officers by gathering those he said participated in the murder at a single location. Throughout the 25th the accused was actually in “protective custody.” Although on the 26th, defendant became the prime suspect, it was only after officers had interrogated other individuals who had been informed on by defendant and had searched his automobile. From these interrogations and investigations reasonable cause was established in the eyes of the officers and district attorney general to believe that defendant was actually their murderer. Only at this time did defendant actually enter into an “arrest status.” The fortuitous circumstance that he was already in police custody does not change what was otherwise a valid arrest under T.C.A. § 40-803(3).

Under this assignment of error defendant also contends that the October 28 statement was inadmissible because the police should have known that defendant was at that time represented by counsel in a burglary case and should not have been interrogated without contacting said attorney. This argument is untenable in the face of defendant’s voluntarily signed waivers of his right to have a lawyer present.

We specifically find that the statement given on October 28 and introduced into evidence by the prosecution was valid, and freely and voluntarily given.

II.

Defendant assigns as error the failure of the trial judge to sustain his plea in abatement to the indictment. Relying upon Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), defendant asserts that optional jury duty granted to women in T.C.A. § 22-101 is unconstitutional upon its face.

The Louisiana law under examination in Taylor provided that no woman would be called for jury service unless she had previously filed with the clerk a written declaration of her desire to serve. Taylor did not find that exemption facially unconstitutional. The record in Taylor revealed, factually, by proof and stipulation, that in the judicial district where defendant was tried fifty-three (53%) percent of the persons eligible for jury duty were female; that in one of the two parishes of that district no more than ten (10%) percent of the persons on the jury wheel were women; that from December 8, 1971, to November 2, 1972, of one thousand eight hundred (1,800) persons drawn to fill petit jury venires only twelve (12) were women and no women were among the one hundred seventy-five (175) persons drawn for jury service during the term that Taylor was tried.

The Court reviewed its prior relevant decisions and concluded that, “the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.” 95 S.Ct. at 697.

After discussion of the reasons historically given for excluding women from jury service and the recent demise of those reasons the court concluded:

“ . . .we think it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost totally male. . . .
Our holding does not augur or authorize the fashioning of detailed jury selection codes by federal courts. The fair-cross-section principle must have much leeway in application. The States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community. . But, as we have said, Louisiana’s special exemption for women operates to exclude them from petit juries, which in our view is contrary to the command of the Sixth and Fourteenth Amendments.” 95 S.Ct. at 701, 702.

As we read the opinion, the exemption statute is unconstitutional only if the consequence is, or if it operates, to produce criminal jury venires that are almost totally male.

This record contains no facts reflecting the consequence of the operation of T.C.A. § 22-101 and § 22-108 in Knox County. The list of names of the petit jurors indicate that three (3) were probably women.

The Court of Criminal Appeals disposed of this assignment of error with the statement that the Court had previously held the statutes relating to women jurors to be constitutional, citing two (2) unreported decisions, Joe Ivory McKinney v. State, released at Jackson, November, 1975, and Alvin Gene Schwartz v. State, released at Knoxville, September, 1976. The dissent in this case calls attention to a third unreported case of the Court of Criminal Appeals, Robert D. Christopher v. State, released in Knoxville, March 23, 1976. In Alvin Gene Schwartz and Robert D. Christopher, the Court of Criminal Appeals interpreted T.C.A. §§ 22-101 and 22-108 as follows:

“T.C.A. § 22-101 sets forth the basic qualifications for jurors. The defendant complains of the provision in that section which provides, ‘A woman shall have the option of serving or not when summoned to jury duty.’ (emphasis added). In answering this assignment, it is necessary for the provisions of T.C.A. § 22-101 to be read in conjunction with the provisions of T.C.A. § 22-108, which provides:
‘Any woman may, when summoned by an officer or otherwise, at that time state to said officer or notify the court by mail, that said woman does not desire to serve and she may thereby be excused from such service.’ (emphasis added).
Thus, we readily see that these two Tennessee statutes do not systematically exclude women from serving as jurors. While T.C.A. § 22-101 says she shall have an option of serving or not, T.C.A. § 22-108 erodes this option by saying she may be excused. We interpret these sections to mean that the excusing of a prospective woman juror is a matter for the discretion of the trial court."

With the possible exception of Robert D. Christopher, the record in each of the three (3) unreported decisions of the Court of Criminal Appeals was devoid of the necessary evidence to enable a decision on the merits of the constitutionality of statutes exempting women jurors, applying the principles enunciated in Taylor. It is regrettable that the record in this case does not permit a decision on the merits. Nevertheless, we deem it necessary to express our disagreement with the Court of Criminal Appeals’ interpretation of the women juror exemption statutes.

T.C.A. § 22-108 clearly evinces the purpose of providing methods of claiming the exemption that do not require women to make a personal appearance at the courthouse. The use of the word “may” in the latter section does not dilute the imperative “shall” in the earlier section. In our opinion, trial judges have no discretion whatsoever and must honor the claim of any woman, to exemption from jury service.

We are acutely aware that a continuing invitation to appellate review is presented by the unresolved status of woman jurors.

The constitutionality of these statutes, while highly suspect from the single fact that 51.3% of the nation’s population are women, cannot be tested pursuant to the principles announced in Taylor until a record is presented that reflects the consequences of their operation, rather than attempts to circumvent their mandatory application.

III.

We affirm the Court of Criminal Appeals’ disposition of all remaining issues urged by defendant.

In the cases of Clarence L. Collins v. State, and State v. Frank Carl Morgan, released on January 24, 1977, we have held that the statutory provisions for mandatory death sentences, T.C.A. §§ 39-2405 — 2406 are unconstitutional under decisions of the Supreme Court of the United States therein referred to and discussed.

We have considered the validity and effect of the Governor’s commutation of a death sentence to life imprisonment, in circumstances similar to those of this case, in our Opinions on Petition to Rehear in Collins and Morgan, to be released on the same date as this Opinion. For the reasons stated therein, the majority of the Court is of the opinion that the commutation is valid and has the same legal effect as though it had originally been pronounced for the commuted term.

The result is that the judgment of the trial court, as commuted to life imprisonment, is affirmed.

I am authorized to state that Chief Justice COOPER and Justice BROCK concur except for that portion of this opinion that affirms the sentence of the trial court as commuted by the Governor to life imprisonment for the reasons stated in their dissent in Collins and Morgan.

HARBISON, J., concurs.

HENRY, Justice,

concurring.

The time has come for us to stop whispering and whistling about the constitutionality of Sections 22-101 and 22-108, T.C.A., and to say flat-footedly that these Code provisions are unconstitutional.

At least four times this insistence has been made in the Court of Criminal Appeals. Each time we could not reach the issue on certiorari. It is apparent that this has become one of those issues of overriding, recurring, and substantial importance demanding resolution but evading review. Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969).

What we say might be dictum but it would be so demonstrably clear that to denounce it as dictum would be a study in futility.

I am impressed with the dissenting opinion of Judge Daughtrey in this case. I particularly applaud these comments:

I am persuaded that T.C.A. §§ 22-101 and 22-108 are facially unconstitutional. The legislature in determining the qualifications for jury service has provided unequivocally in T.C.A. § 22-101 that a woman “shall have the option of serving or not when summoned to jury duty. Under § 22-108 a woman choosing to exercise her option not to serve is merely relieved of the responsibility of appearing in Court in response to the summons:
Any woman may, when summoned by an officer or otherwise, at that time state to said officer or notify the court by mail, that said woman does not desire to serve and she may thereby be excused from such service.
By use of the term “may” the legislature obviously meant that excuse by a summonsing officer or through the mail are not a woman’s exclusive means of declining service; presumably she may also come to court after a summons has been executed and invoke her unqualified option not to serve under T.C.A. § 22-101. I therefore think it is clear that a woman in Tennessee may decline jury service for no reason other than her sex, and that upon request her option must be honored by the trial court, although it may also be granted by a court officer or after notice by mail.

Any woman can decline jury service; therefore, as Judge Daughtrey points out, all women can.

These, and all other statutes, that single out women for preferential treatment by relieving them from the duties and obligations of citizenship are as offensive as those that abridge their rights and privileges as citizens. These statutes are a throwback to the now wholly discredited belief that “a woman’s place is in the home”. This is but a subtle form of antifeminism under which women are denied a portion of their rights as citizens.

I am persuaded that all gender-based classifications are constitutionally infirm. Irrespective of the time frame of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), and independent of that case, I would hold that they violate the provisions of Art. 11, Sec. 8 of the Constitution of Tennessee.

And I would hold it now.

      . Male citizens, if qualified under § 22 101 (requiring a minimum age of 21 years, United States citizenship, Tennessee residency, and durational residency of 12 months in the county of service) and not disqualified under § 22-105 (by reasons of interest in the case or relationship to the parties) nor incompetent under § 22-102 (because infamous or mentally or physically incompetent), must serve unless excused under § 22-103 (by reason of occupation) or under § 22-104 (for “hardship”).


author: HENRY, Justice.

text:
    Irene Cobb FOGO, Executrix, Petitioner, v. Peggy June GRIFFIN, etc., et al., Respondents.
    Supreme Court of Tennessee.
    May 31, 1977.

      Eugene N. Collins, Chattanooga, for petitioner.
    Robert D. Lawson, Chattanooga, for respondents.
   OPINION

HENRY, Justice.

We granted certiorari in this case in order to resolve an issue of first impression in this jurisdiction: whether a widow, who abandoned her husband, is entitled to dissent from his will and receive a distributive share of his estate.

We affirm the action taken by the Court of Appeals; however, we limit our affirmation to a concurrence in the results only. We do this, first, because that court concurred in the finding of the Chancellor that there was no abandonment, with the result that a substantial portion of its opinion was dicta. Secondly, we do .not agree with the dicta.

The Court of Appeals was disturbed over the holding of this Court in Keicher v. Mysinger, 184 Tenn. 226, 198 S.W.2d 330 (1946). Keicher has no relevance to the ■issues discussed by the Court of Appeals. It stands as authority for the sole proposition that a widow who abandons her husband and is guilty of adultery forfeits her right to homestead and the statutory year’s support. This is all that was involved, 184 Tenn. at 228, 198 S.W.2d 330, although the opinion did contain dicta touching upon matters not before the court.

We have no Tennessee cases directly relating to the entitlement of a widow, guilty of abandonment or other misconduct, to claim a distributive share of her husband’s estate. However, the case of Johnson v. Morgan, 184 Tenn. 254, 198 S.W.2d 549 (1947), is in point and its reasoning and rationale is applicable to the instant case. There a childless widow instituted suit to recover for the wrongful death of her husband. The husband’s father brought a suit in chancery seeking to enjoin the widow from further proceedings on the basis that “she forfeited any rights as his widow by her adulterous conduct.” 184 Tenn. at 255, 198 ,S.W.2d at 550. The Court quoted with approval the following language from Heggie v. Barley, 5 Tenn.Civ.App. 78 (1914):

Our statutes providing for recoveries for personal injuries negligently inflicted resulting in deaths, and designating for whose benefit such recoveries may be had are clearly in the nature of statutes providing for the descent and distributing of estates, and we are of opinion that the Courts can no more inquire into the worthiness or unworthiness of such beneficiaries in such personal injury cases than they can inquire into the worthiness or unworthiness of those who are designated as beneficiaries of the estates of decedents, and that the Courts cannot deny relief because of unworthiness in either case unless authorized so to do by some statute. (Emphasis supplied). 184 Tenn. at 256-57, 198 S.W.2d at 550.

The statute (31-605) is clear. It provides that the “widow may dissent from her husband’s will”. Having done so, she is entitled under former Sec. 31-606 to a distributive share of his estate. This latter section is but a special statute of descent and distribution for the benefit of the widow. It does not condition her entitlement upon her good conduct and her misconduct is not a bar. It must be borne in mind that wholly different considerations are present where homestead and the statutory year’s support are involved. All that was required under former Sec. 31-605, T.C.A. was (1) the existence of a valid marriage at the time of death and (2) the survival of the widow. Her dissent triggers the application of former Sec. 31-606.

Had the Legislature intended that the misconduct of the widow would bar her right to dissent and receive her distributive share it could have so stated, as it did in those cases where a divorce is granted to the husband for the misconduct of the wife. Sec. 36-826, T.C.A.

The Court of Appeals erred in reading into the statute disqualifications that the Legislature did not establish.

Affirmed.

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

      . We agree with the conclusion of the Court of Appeals that former Sec. 31-605, T.C.A. does not require that the widow physically appear in court. Phillips, Pritchard’s Law of Wills, Sec. 765, makes it clear that she may appear “in person or by attorney and signify in open court in writing her dissatisfaction.” We agree. It should be noted that this case arose under Sections 31-605 and 31-606, T.C.A., as they existed prior to their repeal by Chapter 529, Acts of 1976.

      . See Hicks v. Pepper, 60 Tenn. 42 (1873) for a discussion of the homestead exemption. Under Keicher, supra, abandonment and adultery bar the statutory year’s support.

      . Swift v. Reasonover, 168 Tenn. 305, 77 S.W.2d 809 (1935) makes it clear that dower is unaffected by abandonment, it being “an estate in land fixed by marriage and death of the husband.” 168 Tenn. at 308, 77 S.W.2d at 810.


text:
    Thomas J. SMITH, Appellant, v. ROYAL GLOBE INSURANCE COMPANY, INC., et al., Appellees.
    Supreme Court of Tennessee.
    May 31, 1977.

      Calvin H. Walter, Walter, Gilbertson & Claiborne, Thomas Marshall Cole, Knoxville, for appellant.
    F. Graham Bartlett, McCampbell, Young, Bartlett & Hollow, Knoxville, for appellees.
   OPINION

HENRY, Justice.

This workmen’s compensation appeal presents the single issue of the entitlement of an injured construction worker to recover on the basis of injuries sustained while en route to his home in Knoxville from a construction site in Big Stone Gap, Virginia, some 115 miles away. The Chancellor denied the claim. We affirm.

The basic facts were stipulated and are as follows:

1. On December 8, 1974, and for some months prior thereto, the plaintiff was employed by the defendant and both were bound under the Workmen’s Compensation laws of the State of Tennessee.
2. That the business of the employer was excavation and construction work and many of the jobs were in localities away from the principal office of the employer, which was located in Knoxville, Tennessee. Employees furnished their own transportation when they traveled to any out-of-town work location and were not paid for any time up until the employee actually went to work on the job site. This and other employees were not paid any mileage or time except when he or they would be instructed to drive company vehicles to the job site. The employer did provide an allowance for housing and food on out-of-town locations, and did provide allowance for housing and food for the plaintiff on this occasion in Big Stone Gap, Virginia.
3. Plaintiff drove his own vehicle to Big Stone Gap, Virginia, on or about December 4 or 5, and the terms of this stipulation (2) applied to plaintiff while traveling to and from, and while staying in, Big Stone Gap, Virginia.
4. On December 7, 1974, the plaintiff was in Big Stone Gap, Virginia, and the work records of the employer show that the employee and the other crew members worked that day until 1:00 p. m., at which time the work was terminated due to inclement weather and the employees were informed by the foreman that there would be no further work until Monday, and that the employees were free to return to their homes.
5. The employee has retrograde amnesia concerning his activities for this day and for several months thereafter. The testimony of other witnesses is that the employee was in a restaurant in Big Stone Gap sometime during the afternoon of Saturday, December 7, 1974, and was seen to have eaten food, consumed some beer, and played the pinball machine. The employee left the restaurant in his automobile and about 9:40 p. m. that evening, he was involved in an automobile accident on Highway 58'. The officer’s accident report indicates that the employee was proceeding west. The route the employee was traveling would be the best and most direct route for his return to Knoxville, Tennessee.

I

The general rule is that an injury received by an employee on his way to or from his place of employment does not arise out of his employment and is not compensa-ble, Little v. Johnson City F. & M. Co., 158 Tenn. 102, 11 S.W.2d 690 (1928), unless the journey itself is a substantial part of the services for which the workman was employed and compensated. Doughs v. Lewis Brothers Bakeries, Inc., 477 S.W.2d 202 (Tenn.1972).

There are exceptions to this general rule in those cases wherein the travel is performed as an incident to, or in connection with the employment, or as this Court has phrased it, “where the contract of employment subjects the employee to such risks and hazards as are incident to performance of duty”. Central Sur. & Ins. Corp. v. Court, 162 Tenn. 477, 480, 36 S.W.2d 907, 908 (1931). The Court in Central Sur. & Ins. Corp. states the reason for the exception thusly:

This is so because the employment imposes the duty upon the employee to go from place to place at the will of the employer in the performance of duty and the risks of travel are directly incident to the employment itself. 162 Tenn. at 480, 36 S.W.2d at 908.

This exception has produced what has come to be known as the “traveling men” cases, which were discussed in Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765 (1966). In that case the Court denied death benefits to the widow of a construction worker who lived in Nashville, but who died, as a result of asphyxiation, while staying in a motel provided by the employer in the proximity of a construction site in Tullahoma.

The Court in Knox cites three of the “traveling men” cases. The first of these is Employers’ Liability Assur. v. Warren, 172 Tenn. 403,112 S.W.2d 837 (1938), where the employee, as a special agent and adjuster for an insurance company, traveled the entire state on a continuous basis. In the second, Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211 (1939), the employee was a traveling salesman. In the third, Martin v. Free Service Tire Co., 189 Tenn. 327, 225 S.W.2d 249 (1949) the employee was a collector of accounts and traveled extensively.

In each of these cases travel and/or lodging were essential incidents of the employment and not merely coincidental in relation thereto. Therefore, the injury arose “out of” the employment.

The workman, on appeal in the instant case, in addition to relying upon Central Surety, supra and Martin, supra, also relies upon Lumbermen’s Mut. Cas. Co. v. Dedmon, 196 Tenn. 94, 264 S.W.2d 567 (1951), a case which offers no support to his position. There the Court denied death benefits to the widow of a lumber inspector whose duties required him to travel to various lumber yards but whose death occurred while on a purely personal mission. But for this deviation the deceased employee might have come under the “traveling men” line of cases, but even then his situation could not be equated with that of the appellant in this case who had no traveling duties and who, in reality, was simply a commuter, even though the distance involved was substantial, and the situs of his duties changed from time to time.

Appellant also relies upon Underwood Typewriter Co. v. Sullivan, 196 Tenn. 238, 265 S.W.2d 549 (1954). This case has no relevance. There the employee was required to attend a three-week course of study in another state. He met his death while on a purely personal mission, on a day during which no school was being conducted, and the Court held that it did not arise out of his employment.

Lastly, appellant relies upon Gregory v. Porter, 204 Tenn. 582, 322 S.W.2d 591 (1959). There the duties of the employee involved delivering automobiles to points distant from his home. While returning from such a delivery over the route he usually traveled, he was fatally injured. The Court held death to be compensable.

This case is controlled by Knox v. Batson, supra, and by the general rules this Court has galvanized into settled principles of law.

The latest pertinent pronouncement of this Court will be found in Woods v. Warren, 548 S.W.2d 651. There we reviewed the authorities relating to injuries sustained by employees while going to or coming from work. We recognized the exception to the general rule of non-liability arising in those cases where the “risks of travel are directly incident to the employment itself”, citing Central Surety, supra. We pointed out the distinction between injuries “arising out of employment” and those merely “in the course of employment” and held that both these criteria must be met in order to establish coverage.

The injuries sustained by appellant simply did not arise out of his employment. They were merely coincidental with, and collateral and tangential thereto. There is no coverage.

Affirmed.

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


author: HENRY, Justice. FONES, Justice,

text:
    Harold HOLMES, Petitioner, v. Robert WILSON, Respondent.
    Supreme Court of Tennessee.
    May 31, 1977.

      James D. Todd, Waldrop, Hall, Tomlin & Farmer, Jackson, for petitioner.
    Joe C. Davis, Lexington, for respondent.
   OPINION

HENRY, Justice.

The appellate disposition of this civil action for damages turns upon a construction of Rule 50.03, Tenn.R.Civ.P.

I.

At the conclusion of all the evidence, the defendant moved the court for a directed verdict on the basis of an alleged insufficiency of material evidence upon which to predicate liability. The trial judge overruled the motion, and, under Rule 50.02 Tenn.R.Civ.P. is “deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.”

The jury awarded damages in the sum of $28,000.00.

Defendant, pursuant to Rule 50.02, moved the court to set aside the verdict and judgment and to enter judgment in accordance with his motion for a directed verdict, and, in the alternative for a new trial. The trial judge sustained the motion for a directed verdict and dismissed the action. He did not act upon the alternative motion for a new trial.

Rule 50.08 specifically provides that when a judgment n. o. v. is granted,

. the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for a new trial. (Emphasis supplied).

On appeal, the Court of Appeals, after pointing out that “the trial judge did not express his reasons for granting the directed verdict”, remanded the case with directions that he review the verdict as a thirteenth juror, and specify grounds for sustaining or overruling the motion for a new trial. The court was apparently under the impression that the trial judge had granted a conditional new trial, but such was not the case. The trial judge had granted judgment n. o. v., and nothing more.

On remand the trial judge correctly treated the mandate of the Court of Appeals as a directive “to rule on the motion for a new trial.” Pursuant to this directive, the trial judge, acting under Rule 50.03, conditionally granted a new trial, and, as required by the rule, specified his reasons. He made it clear that he was totally dissatisfied with the verdict of the jury and, as thirteenth juror, was in disagreement.

The matter then came before the Court of Appeals for a second time. The Court reviewed the proof and held that there was material evidence from which the jury could reasonably infer that petitioner was guilty of negligence in various particulars and that negligence concurred with the negligence of a co-defendant to cause respondent’s injuries. The Court reversed the trial judge’s action in granting a new trial and directing a verdict and reinstated the verdict of the jury.

II.

When a trial judge sustains a motion for judgment n. o. v., Rule 50.03 mandates that he also rule on the alternative motion for a new trial, indicating the grounds for granting or denying the motion.

It must be borne in mind that the grant of a new trial was conditional and becomes effective only if the trial judge’s action in granting judgment is reversed. This conditional grant of a new trial under Rule 50.03 does not affect the finality of the judgment, and an appeal lies to review it. If the appellate court affirms the judgment n. o. v. the controversy is ended. This follows from the fact that the grant of a new trial was conditional and does not become operable unless and until the judgment is reversed or vacated on appeal. If it reverses the judgment, the grant of the motion for a new trial springs to life, and the case is remanded for a new trial, “unless the appellate court has otherwise ordered.” Rule 50.03.

We are not concerned with the correctness of the trial judge’s action in awarding a conditional new trial. Having expressed his dissatisfaction with the jury verdict, in his capacity as thirteenth juror, his action in awarding a new trial is not reviewable, and the only issue before the appellate courts is his action in entering judgment n. o. v. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147 (1940).

III.

Now we look specifically at the judgment n. o. v.

A post-trial motion for the entry of judgment in accordance with a motion for a directed verdict made during the trial must be gauged by the usual rules relating to directed verdicts. Those rules require that the trial judge, and the appellate courts, take the strongest legitimate view of the evidence in favor of the opponent of the motion, allow all reasonable inferences in his or her favor, discard all countervailing evidence, and deny the motion where there is any doubt as to the conclusions to be drawn from the whole evidence. A verdict should not be directed during, or after, trial except where a reasonable mind could draw but one conclusion. Vaughan v. Shelton, 514 S.W.2d 870 (Tenn.App.1974); Keller v. East Tennessee Producton Credit Ass’n, 501 S.W.2d 810 (Tenn.App.1973). See also Silverii v. Kramer, 314 F.2d 407 (3rd Cir.1963).

When these rules are applied to the facts in the instant case there is no question but that the issues presented a jury question, and that the judgment n. o. v. was erroneously entered. Neither the trial judge nor the reviewing court is privileged to weigh the preponderance of the evidence when passing upon a motion for a directed verdict or for a judgment n. o. v.

When dual motions are presented, i. e. motions for a directed verdict and for a new trial, two standards of consideration are involved. On motion for judgment n. o. v., the sole concern of the trial judge is the existence of material evidence in accordance with the above criteria whereas on motion for a new trial he has a substantially wider, though not unbridled, latitude and may set the verdict aside when it is against the weight of the evidence or when the interests of justice would be served thereby. Thus the trial judge consistently may overrule a motion for directed verdict or for judgment n. o. v. and grant or deny a new trial. If he or she should sustain the motion for a directed verdict, consistency demands that there be a conditional award of a new trial.

We concur with the Court of Appeals’ holding that a jury question was presented and the entry of judgment n. o. v. was erroneous.

IV.

When an appellate court determines that a judgment n. o. v. was erroneously entered, it has two choices: the case may be remanded for a new trial, or the verdict may be reinstated. These options flow from the proviso in Rule 50.03:

If the motion for a new trial is thus conditionally granted, and the judgment is reversed on appeal [1] the new trial shall proceed [2] unless the appellate court has otherwise ordered. (Emphasis and brackets supplied).

The Court of Appeals elected to reinstate the jury verdict. We think this was error. The general rule appears to be that the case is remanded for a new trial. Trice v. Commercial Union Assurance Company, 334 F.2d 673 (6th Cir. 1964); Menneti v. Evans Construction Co., 259 F.2d 367 (3rd Cir. 1958).

In Moore’s Federal Practice, the procedure is explained thusly:

Where the judgment n. o. v. is reversed, and the trial judge has granted a motion for a new trial, the case will ordinarily be remanded to the trial court for a new trial in accordance with that court’s action on the motion for a new trial. But the courts of appeals have authority to order “otherwise”. (Emphasis supplied) 5A Moore’s Federal Practice Sec. 50.14 at 2382.

In Wright & Miller, Federal Practice and Procedure, it is phrased thusly:

If the appellate court affirms the grant of judgment the case is ended. If it reverses the grant of judgment the new trial must proceed, in accordance with the conditional order by the trial court, “unless the appellate court has otherwise ordered.” (Emphasis supplied). Wright & Miller, Federal Practice and Procedure, Sec. 2540 at 618.

Because this is a question of first impression in this jurisdiction, and in view of the identity of Rule 50(c)(1) Fed.R.Civ.P. and Rule 50.03 Tenn.R.Civ.P., we look to eases decided by federal jurisdictions.

In Hansen v. Firestone Tire and Rubber Company, 276 F.2d 254 (6th Cir. 1960) the court, without citation of authority, held that “. . . the appellate court may, in an appropriate case where there is sufficient substantial evidence to support a jury verdict to the contrary, order the cause to be remanded with instructions to reinstate the verdict of the jury.” 276 F.2d at 255.

In Berner v. British Commonwealth Pacific Airlines, Ltd., 346 F.2d 532 (2d Cir. 1965) the Court, after finding that the trial judge abused his discretion in awarding a conditional new trial, reversed the grant of a judgment n. o. v. and the conditional grant of a new trial and reinstated a verdict in favor of the defendant.

In Compton v. United States, 377 F.2d 408 (8th Cir. 1967) the Court reversed a judgment n. o. v. and reinstated the jury’s verdict. However, in that case there was no award of a conditional new trial.

The Court, in Powell v. Lititz Mutual Insurance Company, 419 F.2d 62 (5th Cir. 1969), after finding “overwhelming” evidence in plaintiff’s favor, and noting that it “need not follow the trial court’s unjustified meander to a new trial”, reversed a judgment n. o. v. and reinstated judgment in plaintiff’s favor. The Court recognized that the theory of Rule 50(c)(1) normally would demand a new trial, but held that it was “not compelled to allow the conditional grant to stand if it would be an abuse of discretion to allow a new trial”. 419 F.2d at 65. The Court referred to its “discretion under Rule 50(c) and bolstered its position by citing the advisory commission note reading in part as follows:

[T]he appellate court, if it reverses the judgment n. o. v., may in an appropriate case also reverse the conditional grant of the new trial and direct that judgment be entered on the verdict. (Emphasis supplied). 419 F.2d at 66, fn. 3.

United States v. F. D. Rich Company, 437 F.2d 549 (9th Cir. 1970) recognizes that an award of a new trial “is addressed to the sound discretion of the trial judge, and must be left standing by this court absent a showing of abuse of discretion”. Emphasis supplied. 437 F.2d at 553. The Court accordingly remanded for a new trial.

Mays v. Pioneer Lumber Corporation, 502 F.2d 106 (4th Cir. 1974) involved a judgment n. o. v. only, the trial judge not having passed on the motion for a new trial. The Court correctly and succinctly summarized the issue under consideration as follows:

There is authority for the proposition that we now have no alternative other than to remand either for a third new trial or for the district judge to consider anew whether to grant another trial. See Casper v. Barber & Ross Co., 109 U.S.App.D.C. 395, 288 F.2d 379, 385 (1961) (Miller, J., concurring and dissenting). But the better viewpoint, it seems to us, is that suggested by Professor Moore, who points out that where the judgment n. o. v. is reversed and the trial court has alternatively granted the motion for a new trial, the case will ordinarily be remanded for a new trial “[b]ut the courts of appeals have authority to order ‘otherwise.’ ” 5A Moore’s Federal Practice § 50.14, at p. 2382 (2d ed. 1974). (Emphasis supplied). 502 F.2d at 110.

Cargill, Incorporated v. Weston, 520 F.2d 669 (8th Cir. 1975) recognizes the right of the appellate courts to reinstate a jury ver-diet, to remand for the trial court’s further consideration and to order a new trial.

When consideration is given to these treatises and federal cases we believe the correct rule to be that in those cases wherein the trial court has granted judgment n. o. v. and has conditionally granted a new trial the appellate court, upon reversal of the judgment n. o. v., should, as a general rule, remand the action for a new trial. Appellate courts, however, may exercise a sound judicial discretion in the matter and may, under exceptional circumstances and in the interest of justice, reinstate the verdict of the jury where the trial judge erred in ruling on a controlling conclusion of law and has approved the verdict of the jury.

In the instant case we find no exceptional circumstances that would justify a departure from the general rule. The action of the trial judge in granting a judgment n. o. v. is reversed. The action of the Court of Appeals in reversing the trial court, in this regard, is affirmed. Its action in reinstating the verdict is reversed.

Affirmed in part; Reversed in part; Remanded.

FONES, Justice,

dissenting.

I respectfully dissent.

In my opinion, the learned trial judge was correct in directing a verdict in favor of defendant Holmes. His action was based upon a finding that defendant Holmes was not guilty of any proximate negligence and that the sole proximate cause of the three vehicle accident was the negligence of Jerry McDaniel.

McDaniel entered the four-lane highway from the premises of a barbecue stand on the north side of the highway, crossed the two west-bound traffic lanes and struck the Holmes south-bound vehicle in the left rear, causing Holmes to lose control and strike the rear of plaintiff’s pick-up truck, also proceeding in a southerly direction. I do not believe that the varying estimates of Holmes’ speed or his failure to be aware of the presence of the McDaniel vehicle at a earlier point in time provided any evidence of proximate negligence.

If the majority is correct in holding that the evidence presented a jury issue as to the negligence of Holmes, I agree that the trial judge’s disapproval of the jury verdict requires that the case be remanded for a new trial.

But, in my view, this case presents no issue that calls for an interpretation of the phrase in Rule 50.03, T.R.C.P., “unless the appellate court has otherwise ordered.” Plaintiff does not assert any exceptional circumstances surrounding the trial judge’s conditional granting of a new trial, nor any other factor that calls for an analysis of situations that might properly require the appellate courts to order otherwise.

      . A judgment n. o. v. under Rule 50.02 is not to be confused with a judgment non obstante ve-redicto, as it existed under the old procedure and as described in A. Caruthers, History of a Lawsuit, Sec. 391 (8th ed. 1963).

      . The Montgomery Ward ruling was reaffirmed by the 1963 Amendments to Rule 50(c)(1) Fed. R.Civ.P., which is identical with the first paragraph of Rule 50.03 Tenn.R.Civ.P. in all material particulars. See 5A Moore’s Federal Practice, Sec. 50.014.


author: HENRY, Justice. BROCK, Justice,

text:
    MARTIN BROTHERS CONTAINER AND TIMBER CORPORATION, Appellant, v. Lillian W. LYNCH, Appellee.
    Supreme Court of Tennessee.
    May 31, 1977.

      Russell L. Moore, Jr., Ewell & Farmer, Dyersburg, for appellant.
    C. W. Miles, III, Miles & Miles, Union City, for appellee.
   OPINION

HENRY, Justice.

The only issue in this workmen’s compensation appeal is whether claimant’s lung condition is compensable as an “occupational disease” under Sec. 50-1101, T.C.A.

The injured worker, a fifty-one year old woman, began working for Martin Brothers Container & Timber Products Corporation in 1966, laying boards on an assembly line where wooden boxes are made. The 5-acre Martin Brothers factory saws between 100,-000 and 130,000 feet of boards per week in a part of the plant “about half an acre” distant from the assembly line where Mrs. Lynch worked. Although three large blowers operate in the sawing area to carry sawdust to outside storage bins, considerable amounts of sawdust remain in the air and on the boards as they are taken from the sawing area to the box assembly line.

In 1972, about six years after beginning employment at Martin Brothers, Mrs. Lynch began coughing and suffering from pain and shortness of breath, conditions that gradually worsened. In early 1973 she was given treatments by an osteopathic physician, Dr. G. O. Sullivan, for lung congestion. Dr. Sullivan also suggested that Mrs. Lynch might have emphysema. Later in 1973 Mrs. Lynch was hospitalized and diagnosed as suffering from sinusitis, pneu-monitis and emphysema. She was hospitalized twice in 1974 and once in 1975 for what was variously described as “bronchitis, influenza, sinusitis, emphysema or pneumoni-tis.” On two occasions of hospitalization, in October 1974 and April 1975, chest X-rays were taken that failed to show, according to two hospital radiologists, that Mrs. Lynch had emphysema. The films did reveal, however, chronic respiratory problems. Dr. Sullivan diagnosed emphysema from his interpretations of the X-rays and from Mrs. Lynch’s poor response to treatment.

After being hospitalized in October 1974, Mrs. Lynch did not return to work. In August 1975, she was terminated after notifying Martin Brothers that she would never again be able to work. At that time she also filed a workmen’s compensation claim, which was denied. In this suit Mrs. Lynch alleges that she developed emphysema as a “direct and proximate result of her exposure over the years to . sawdust,” that she is totally disabled, and that she has an occupational disease within the meaning of Sec. 50-1101(3) T.C.A. (silicosis). The theory of her suit is that emphysema is “so closely related” to silicosis that it should be considered “occupational”.

The Chancellor found that Mrs. Lynch was suffering from emphysema as a direct result of her employment at Martin Brothers, and that her condition is “pathologically similar” to silicosis. He therefore awarded workmen’s compensation benefits based on a sixty per cent permanent partial disability to the body as a whole.

Martin Brothers Corporation argues that there is no material evidence in the record to support the award. More specifically, it asserts that there is no evidence of a permanent disability, or finding of an occupational disease or related occupational disease under Sec. 50-1101, T.C.A., and that there is no causal connection relating any disability to a disease arising out of employment with Martin Brothers. It also argues that the Chancellor erred in disregarding the testimony of Dr. Fountain, a specialist in lung disorders, in favor of that of Dr. Sullivan, an osteopath. We cannot sit in judgment upon the respective qualifications of these witnesses. The Chancellor, after considering the entire matter, elected to accept the testimony of the doctor of osteopathy. So must we.

Dr. Sullivan testified both by deposition prior to trial and by oral examination in open court. While close and rigid cross-examination was productive of arguably inconsistent answers, we think it clear that the overall import of his testimony was (1) that this employee suffered from emphysema, (2) that this condition was produced by the inhalation of sawdust over an extended period of time, during the course of her employment and (3) that emphysema and silicosis are pathologically similar.

This case was vigorously contested and was ably briefed and argued at the bar of this Court. The issues were so sharply drawn that we have no hesitation in saying that the Chancellor could have held in favor of either party with the support of ample, material and creditable evidence. We, however, do not weigh the evidence in a workmen’s compensation case. Where material evidence supports the finding of the trial judge we have no alternative to affirming. Indeed, the matter is conclusive upon us.

One of the landmark cases dealing with occupational diseases is American Insurance Company v. Ison, 519 S.W.2d 778 (Tenn.1975). There Justice Brock, writing for the Court, laid down these criteria:

Finally, if the alleged occupational disease is not one of those named in T.C.A., Section 50-1101, it must be established by medical or other appropriate expert witnesses that it is so “closely related” to one of the named occupational diseases that it too, should be considered “occupational.” By “closely related” we mean (1) that the disease produces pathological effects in the employee which are substantially the same as those resulting from one of the named occupational diseases and (2) the disease in question is caused by the particular hazards of the employment which are known to also cause one of the named occupational diseases. 519 S.W.2d at 781.

We conclude that the facts of this case bring it well within the Ison rules.

We have considered other established rules relating generally to the determination of workmen’s compensation claims. Among those that are medical testimony on causation does not require proof to an absolute certainty. American Insur- anee Co. v. Ison, supra. This rule recognizes the fact that in spite of all its praiseworthy progress, medicine is not an exact science.

The enforcement generally of the workmen’s compensation act requires that we give its provisions a liberal interpretation. This is particularly true as to “occupational” diseases. Brooks v. Gilman Paint, 208 Tenn. 595, 347 S.W.2d 665 (1961).

Lastly, the trier of facts “should be left free to adopt that view which is most consistent with reason and justice.” Graybeal v. Smith, 189 Tenn. 412, 225 S.W.2d 556 (1949).

The judgment of the Chancellor is

Affirmed.

HENRY, J., concurs.

BROCK, Justice,

dissenting.

Regretfully, I dissent upon the ground that the evidence fails to show that the breathing of sawdust, the cause of plaintiff’s emphysema, is known to also cause silicosis, the listed occupational disease (T.C.A. § 50-1101) to which emphysema is said to be “closely related.” Such a showing is one of the two requirements laid down by this Court in American Insurance Co. v. Ison, Tenn., 519 S.W.2d 778 (1975) for finding that a given disease is one “closely related” to a listed occupational disease. I fear that with this decision we are slipping back to the chaotic hit or miss consideration of alleged “closely related” occupational diseases which Ison sought to correct.


author: PONES, Justice.

text:
    Harold W. HORNE, Appellant, v. Robert D. COX et al., Appellees.
    Supreme Court of Tennessee.
    May 31, 1977.
    Harold W. Horne, pro se.
    Brooks McLemore, Jr., Atty. Gen., Robert B. Littleton, Asst. Atty. Gen., Nashville, for appellees.
   OPINION

PONES, Justice.

Plaintiff filed a petition in the chancery court, seeking to invoke its jurisdiction pursuant to the judicial review section of the Uniform Administrative Procedures Act, T.C.A. § 4-523.

Plaintiff alleged that as a student at Memphis State University Law School he received a grade on a research paper that was arbitrary and capricious and based on factors extraneous to academic performance; that he appealed his grade to the grade review committee but in processing his appeal, the committee denied his contention that the Uniform Administrative Procedures Act, T.C.A. §§ 4-507 — 4-527 applied and refused to provide a “contested case” hearing as authorized by T.C.A. § 4-514.

The chancellor dismissed the suit because he found no statutory or constitutional basis for providing such procedures to plaintiff.

Plaintiff maintains that the grade appeal was a contested case under the definition contained in T.C.A. § 4-508, and therefore the procedural guarantees of T.C.A. § 4-514 should have applied.

Plaintiff relies on the following definition of “contested case” in T.C.A. § 4-508(b):

“ ‘Contested case’ means a proceeding, including a declaratory proceeding in which the legal rights, duties or privileges of a party are required by any statute or constitutional provision to be determined by an agency after an opportunity for a hearing. Such proceeding shall include, but not be restricted to rate making; price fixing; granting of certificates of convenience and necessity; the making, review or equalization of tax assessments; the grant or denial of licenses, permits or franchises where the licensing board is not required to grant the license, permit or franchise upon the payment of a fee or the finding of certain clearly defined criteria; and suspensions of, revocations of, and refusals to renew licens-

Plaintiff asserts that “contested case” includes any type of proceeding whatsoever involving State administrative actions regardless of whether or not there is any statutory or constitutional basis for a hearing. Thus he argues that the phrase “in which legal rights, duties or privileges of a party are required by any statute or constitutional provision to be determined by an agency after an opportunity for a hearing” modifies only declaratory proceeding.

Such an interpretation would mean that even the most minor, informal agency action would require a trial type hearing. This obviously is not the legislative intent behind T.C.A. § 4-508. In Tidwell v. Collins, 522 S.W.2d 674 (Tenn.1975), we stated that “the premier rule of statutory construction is to ascertain and give effect to the legislative intent.” Furthermore we stated that in construing any statute:

“It is the duty of the Court to reconcile inconsistent or repugnant provisions; to place a construction thereon which will not be prejudicial to the public interest; to construe a statute so that no part will be inoperative, superfluous, void or insignificant, and that one section will not destroy another; and further to give effect to every word, phrase, clause and sentence of the Act in order to carry out the legislative intent.” 522 S.W.2d at 676-677.

The construction urged by plaintiff would give no effect whatsoever to anything that comes after the first comma in T.C.A. § 4-508 unless it involved a declaratory proceeding. We therefore hold that the definition of contested case should be construed as if there were a second comma after “declaratory proceeding,” and the entire parenthetical phrase thereafter modify and limit the general term “proceeding.”

There are no constitutional or statutory provisions granting any legal rights or privileges to students in the educational institutions of this state with respect to grades for academic performance.

Federal due process requirements afford no relief to plaintiff. While due process may require some type of informal hearing before a student is expelled or suspended from a state supported school, Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1976), it does not require such procedures before corporal or other minor punishment is applied to a student. Ingram v. Wright, - U.S. -, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977).

Furthermore, there is an obvious difference between due process requiring a hearing before punishment or discipline is imposed, and grade appeals. In Mahavongsanan v. Hall, 529 F.2d 448 (1976), the United States Fifth Circuit Court of Appeals, long a leader in affording due process to students, refused to find that due process required any type of hearing to a graduate student who was denied a masters degree stating:

“The concern expressed by the appellants for their academic interest is well taken. The district court’s grant of relief is based on a confusion of the court’s power to review disciplinary actions by educational institutions on the one hand, and academic decisions on the other hand. This Court has been in the vanguard of the legal development of due process protections for students ever since Dixon v. Alabama State Board of Education, 5 Cir. 1961, 294 F.2d 150, cert. denied 1961, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193. However, the due process requirements of notice and hearing developed in the Dixon line of cases have been carefully limited to disciplinary decisions. When we explained that ‘the student at the tax supported institution cannot be arbitrarily disciplined without the benefit of the ordinary, well recognized principles of fair play’, we went on to declare that ‘[w]e know of no case which holds that colleges and universities are subject to the supervision or review of the courts in the uniform application of their academic standards. Indeed, Dixon infers to the contrary.’ Wright v. Texas Southern University, 5 Cir. 1968, 392 F.2d 728, 729. Misconduct and failure to attain a standard of scholarship cannot be equated. A hearing may be required to determine charges of misconduct, but a hearing may be useless or harmful in finding out the truth concerning scholarship. There is a clear dichotomy between a student’s due process rights in disciplinary dismissals and in academic dismissals.” 529 F.2d at 449-450.

We think this reasoning is equally applicable to the present plaintiff.

The judgment of the chancellor dismissing plaintiff’s lawsuit is affirmed. Costs are adjudged against plaintiff.

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


author: FONES, Justice. BROCK, Justice,

text:
    STATE of Tennessee, Petitioner, v. Ray McCRAW, Respondent.
    Supreme Court of Tennessee.
    June 6, 1977.

      Brooks McLemore, Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., Nashville, for petitioner.
    Paul W. Sorrick, Jr., Chattanooga, for respondent.
   OPINION

FONES, Justice.

In 1970, appellant was convicted of extortion and sentenced to serve two (2) years in the penitentiary. He did not appeal this conviction. After fully completing his sentence in 1972, appellant moved to Georgia. Because of his felony conviction in this state, local election officials in Georgia refused to allow him to vote.

Appellant has now brought this suit under the Post-Conviction Relief Act, T.C.A. § 40-3801 et seq., alleging constitutional infirmities in the conduct of his trial, and contending that he suffers civil disabilities as a result of his conviction. Upon motion of the State the trial judge in this case dismissed plaintiff’s action after finding that he was no longer in prison or on parole and thus no longer “in custody” as required by T.C.A. § 40-3802. The trial judge further observed in his order that it does not appear that there was “any judgment of infamy or disenfranchisement in the sentence giving rise to this petition.”

The Court of Criminal Appeals reversed the trial court’s dismissal finding that “ . . . the petitioner is still in custody because he continues to suffer substantial and important collateral consequences of his conviction over and above his sentence to imprisonment.” These consequences are apparently petitioner’s inability to vote in Georgia.

T.C.A. § 40-3802 provides:

“A prisoner in custody under sentence of a court of this state may petition for post-conviction relief under this chapter at any time after he has exhausted his appellate remedies or his time for appeal in the nature of a writ of error has passed and before the sentence has expired or has been fully satisfied.”

This is a case of first impression in this Court. The Court of Criminal Appeals in prior decisions has given very liberal construction to the term “in custody.” See e. g., Holt v. State, 489 S.W.2d 845 (Tenn.Cr.App.1972); Parton v. State, 483 S.W.2d 753 (Tenn.Cr.App.1972); Daugherty v. State, 4 Tenn.Cr.App. 355, 470 S.W.2d 865 (1971).

In Holt, the Court acknowledged that the petitioner had completed his entire sentence but still felt obligated to consider the petition stating:

“However, because burglary and larceny are infamous crimes in this State (TCA § 40-2712) and may also be charged and proved as prior convictions in a prosecution under the Habitual Criminal Statute (TCA § 40-2801 et seq.), which unquestionably are substantial and important collateral consequences of his conviction over and above his sentence to imprisonment, his discharge upon expiration of that term does not disentitle him to question the validity of his conviction ...” 489 S.W.2d at 846, 847.

In Daugherty, the Court did not bother to mention any actual civil disabilities but rather stated that it would review a petition for post-conviction relief after all punishment had been served simply because of the presence of a conviction on petitioner’s record. However, the conviction in Daugherty, like Holt, was for a crime that rendered the convicted defendant infamous.

The Court of Criminal Appeals has relied on two United States Supreme Court cases in support of their opinions: Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1965).

In Carafas the Supreme Court ruled that a petition for habeas corpus was not mooted simply because the petitioner had fully served his sentence. In reaching this conclusion the Court overruled Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960) which had held that the Court could not proceed to adjudicate the merits of the petition after the prisoner was released because the federal habeas corpus statute required that the applicant “be in custody.” The Court in Carafas observed the inequity of Parker stating:

“It is clear that petitioner’s cause is not moot. In consequence of his conviction, he cannot engage in certain businesses; he cannot serve as an official of a labor union for a specified period of time; he cannot vote in any election held in New York State; he cannot serve as a juror. Because of these ‘disabilities or burdens [which] may flow from’ petitioner’s conviction, he has ‘a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him.’ Fiswick v. United States, 329 U.S. 211, 222, 67 S.Ct. 224, 230, 91 L.Ed. 196, 203 (1946).” 391 U.S. at 237, 88 S.Ct. at 1559.

In Sibron, the Court went further in declaring that the mere serving of a sentence did not prevent a collateral attack on the conviction. After mentioning possibilities that the existence of a conviction could impeach the petitioner’s character at any future criminal trial or be used as a basis for infliction of greater punishment on petitioner as a multiple offender should he be convicted at a later trial, the Court held that “ . . . a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” 392 U.S. at 57, 88 S.Ct. at 1900.

On the basis of these two cases the Court of Criminal Appeals was correct in construing the term “in custody” to mean any possibility of restraint on liberty.

The State urges that even if “in custody” means more than presence in prison, or on parole, the petitioner is still not entitled to relief because of the limitation in T.C.A. § 40-3802 that a post-conviction petition may be brought, “before the sentence has expired or has been fully satisfied.” The Court of Criminal Appeals held that this argument would “produce a ludicrous result; the petitioner would be ‘in custody’ under T.C.A. § 40-3802 but without means of obtaining relief . . . ” We agree.

The judgment of the Court of Criminal Appeals is affirmed and the case remanded to the trial court for a hearing on the merits of the petition.

COOPER, C. J., and HENRY and HAR-BISON, JJ., concur.

BROCK, J., dissents.

BROCK, Justice,

dissenting.

I respectfully dissent.

I cannot stretch the language of T.C.A., § 40-3802, viz., “a prisoner in custody . ” and “ . . . before the sentence has expired or has been fully satisfied,” far enough to reach the appellant, whose sentence expired and was fully satisfied and who was released from custody of the prison years before he filed this claim for relief under the Post-Conviction Procedure Act, T.C.A., § 40-3801, et seq.

The Legislature, in my opinion, has not extended the benefits of this Act to every person who has ever been convicted in the criminal courts of this State and who continues to suffer some detrimental effect from such conviction, apart from the sentence imposed, even effects imposed by the laws of another state, such as respondent’s loss of the right to vote in Georgia. Instead, the Act is limited to “prisoner(s) in custody.” The American Heritage Diction ary of the English Language defines “custody” as:

“ . . .2. The state of being kept or guarded. 3. The state of being detained or held under guard, especially by the police.”

The same authority defines “prisoner” as:

“1. A person held in custody, captivity, or a condition of forcible restraint, especially while on trial or serving a prison sentence. 2. One deprived of freedom of action or expression.”

Not only is the Act out of reach of the respondent because he is not a prisoner and is not in custody, the detriment which he suffers and upon the basis of which the majority finds a remnant of “custody,” i. e., his ineligibility to vote in Georgia, is not imposed by his Tennessee sentence or otherwise by Tennessee law, but by the laws of Georgia.

Admittedly, the majority cites respectable authority from other jurisdictions, but, in my view, the question is purely one of legislative intent as expressed by the language of the statute, as to which court decisions of other jurisdictions involving different statutes are not persuasive.

Accordingly, I would reverse and dismiss the petition.