author: GUDGEL, Judge.

text:
    E.I.C., INC., Appellant, v. BANK OF VIRGINIA, and the Lincoln Savings Bank et al., Appellees.
    Court of Appeals of Kentucky.
    May 18, 1979.

      Alan T. Slyn, Louisville, for appellant.
    Lively M. Wilson, Stites, McElwain & Fowler, Louisville, W. Thomas Lively, Moorman & Lively, Leitchfield, for appellee Bank of Virginia.
    John E. McDonald, Jr., McDonald & Crump, Richmond, Va., for appellee Fee-Owners.
    Charles W. Dobbins, Louisville, for appel-lee P. N. Corp.
    Daniel M. Herscher, Beverly Hills, Cal., for appellee E.I.C., Inc.
    William L. Montague, Lexington, for ap-pellee the Lincoln Sav. Bank.
    David L. Van Zant, Huddleston, Van Zant & Coyle, Elizabethtown, for appellee Scott & Fetzer Co.
    Before GUDGEL, WHITE, and WIN-TERSHEIMER, JJ.
   GUDGEL, Judge.

This is an appeal from a post-judgment order of the Grayson Circuit Court dated August 7, 1978, imposing sanctions upon appellant E.I.C., Inc. The judgment which gave rise to the order appealed from was entered April 10, 1978, and is the subject of a companion appeal before this court.

Counsel for appellee, The Lincoln Savings Bank, served upon appellant, E.I.C., Inc. a request for production of documents in California on June 6, 1978, and a notice to take the deposition of a representative of E.I.C. in California on June 7, 1978. These post-judgment discovery proceedings were designed to aid Lincoln’s collection of the April 10 judgment.

On May 15, 1978, California counsel for E.I.C. wrote counsel for Lincoln a letter explaining that the discovery notices of Lincoln scheduled for June 6th and June 7th would not be honored due to a conflict in scheduling of the E.I.C. officer to be produced for the deposition. Counsel for Lincoln responded by letter dated May 26th and refused to postpone the deposition. Apparently, additional communications by phone ensued and finally, counsel for Lincoln wrote a letter to E.I.C.⅛ Louisville counsel dated June 2, 1978, in which he indicated that he would not make the trip to California, but instead, would file a motion pursuant to Civil Rule 37.01 for an order compelling discovery. This motion was noticed for hearing on June 16, 1978.

Prior to this date, according to the affidavit of Lincoln’s counsel, E.I.C.⅛ Louisville counsel telephoned and agreed that E.I.C. would not oppose the motion for an order compelling discovery if Lincoln would agree to dates acceptable to E.I.C. Counsel for Lincoln indicated that he would draw an order specifying July 24, 1978, as the date to inspect documents and July 25, 1978, as the date for the deposition. Louisville counsel for E.I.C. agreed to these dates. Counsel for Lincoln appeared before the Grayson Circuit Court on June 16, 1978, and tendered the order. No one appeared to object to the motion and the court signed and entered the order.

On June 30, 1978, California counsel for E.I.C. wrote a letter to the company which maintained the records of E.I.C., requesting that it review the request for production of documents and advise him prior to July 24th what documents the company had and what would be involved in producing them. On or about July 19th an officer of E.I.C. contacted the company having custody of its records and learned that the person employed by the company to handle E.I.C.’s account had been on vacation and no one had acted upon the letter of California counsel dated June 30, 1978.

On Thursday, July 20th, Louisville counsel for E.I.C. telephoned Lincoln’s counsel and advised him that the documents could not be produced on Monday, July 24th. He suggested that the parties agree to reschedule the dates. Counsel for Lincoln refused. Counsel for E.I.C. then indicated that he intended to file a motion to reschedule the discovery prior to the departure of Lincoln’s counsel for California. The motion was received by Lincoln’s counsel Friday, July 21st. After receipt of the motion, which was noticed for hearing on August 7, 1978, Lincoln’s counsel elected to fly to California.

On Monday, July 24th, E.I.C.’s president, accompanied by counsel, appeared at the designated time and place in California, but did not produce any documents as required by the order compelling discovery. At this meeting counsel for Lincoln was told by counsel for E.I.C. that E.I.C. was taking the position that the Grayson Circuit Court lacked jurisdiction to compel discovery. E.I.C.’s counsel further advised the president of E.I.C. not to appear to give his deposition the next day, July 25th. It should also be noted that at the July 24th meeting counsel for Lincoln was offered the opportunity to take the deposition of E.I. C.’s president, but since no court reporter was present, counsel for Lincoln did not. The next day at the designated time and place counsel for Lincoln appeared with a court reporter, but no one appeared on behalf of E.I.C.

On August 7, 1978, the court, after hearing argument, entered an order directing E.I.C. to pay all expenses of counsel for Lincoln in connection with the trip to California. These expenses were to include attorney’s fees in the amount of seventy-five dollars ($75) per hour for sixteen (16) hours per day for two days, plus any other travel expenses. After entry of the order of August 7th, E.I.C. filed a motion to set aside or amend that order which was overruled September 1, 1978. This appeal followed.

At the outset we note that E.I.C. did not make a motion, pursuant to CR 26.03, for a protective order nor did they appeal the order of June 16, 1978, compelling discovery. Thus, E.I.C.’s posture before this court is limited to a review of the propriety of the trial court’s order of August 7, 1978, awarding counsel for Lincoln expenses and attorney’s fees. The order appealed from does not state the rule relied on by the trial court to award expenses and attorney’s fees, but it would appear the order was entered pursuant to CR 37.02(3). This rule provides for payment of reasonable expenses, including attorney’s fees, as an adjunct of the court’s power to impose sanctions under CR 37.02(2), when a party fails to obey an order compelling discovery. In fact, this sanction was probably the only option available to the court, since there was a failure to comply with an order compelling discovery subsequent to entry of a judgment, and the court did not find E.I.C. guilty of contempt. See CR 37.02(2).

Two issues are presented on this appeal: (1)Is the award of expenses including reasonable attorney’s fees for failure to obey an order compelling discovery mandatory; and if not, (2) did the trial court abuse its discretion when it awarded expenses and attorney’s fees to Lincoln’s counsel.

I

The parties cite us to no cases dealing specifically with failure to comply with an order compelling discovery entered subsequent to a judgment. The reported cases deal with failures which have occurred prior to entry of a judgment.

We note in reviewing the language of CR 37.02(3) that it states, “in lieu of” or “in addition to” the sanctions provided by CR 37.02(2), the court “shall” require the party failing to obey an order compelling discovery to pay reasonable expenses including attorney’s fees “unless” the failure is “substantially justified” or the award would be “unjust”. One authority, discussing the identical Federal Rule, FRCP 37(b), states:

The rule now makes the award mandatory, regardless of what other sanctions may be imposed, unless the delinquent party shows substantial justification for his failure or other circumstances making an award unjust.

8 Wright and Miller, Federal Practice ánd Procedure § 2289 (1970).

It appears to us that although the rule, by use of the word “shall,” appears to mandate an award of reasonable expenses including attorney’s fees for failure to comply with an order compelling discovery, the addition of the language in the rule that “unless . . . the failure was substantially justified or . unjust,” precludes the award of expenses and attorney’s fees where there is a showing the award would be unjust or the failure to comply is substantially justified.

In other words, we believe the language used in the rule is intended to shift the burden to the party who has failed to comply with an order compelling discovery, and requires that party to establish to the satisfaction of the trial court that the failure was substantially justified or that an award of expenses would be unjust. Accordingly, we hold that the award of expenses and attorney’s fees pursuant to CR 37.02(3) is within the sound discretion of the trial court.

II

Since the award of expenses and attorney’s fees, pursuant to CR 37.02(3), is not mandatory, we are limited in our review of the order appealed from, to a determination of whether or not the trial court abused its discretion. Nowicke v. Central Bank & Trust Co., Ky.App., 551 S.W.2d 809 (1977). Since Lincoln offered no evidence to the contrary, we must accept as true E.I.C.’s assertions as to why it did not comply with the order. Nowicke, supra. We are not unmindful that we are dealing with post-judgment discovery proceedings and a strong judicial policy that a court has the inherent authority to enforce its own judgment and remove any obstructions to such enforcement. Akers v. Stephenson, Ky., 469 S.W.2d 704 (1970).

The trial court heard the matter upon motion, and was not required to, and did not make, specific findings of fact. 7 W. Clay, Kentucky Practice, CR 52.01, (3rd ed. 1974). Although the record is silent, we believe the court must have concluded that the award of expenses and attorney’s fees was proper because E.I.C.⅛ failure to comply with the order demonstrated a lack of good faith. We disagree and reverse.

Two weeks after entry of the trial court’s order of June 16, E.I.C.’s California counsel wrote a letter to a company which maintains its records requesting that the documents sought by Lincoln be produced. That attorney then left for vacation, and when the time drew near for the discovery to take place, an officer of the company inquired about the records, only to learn that the person charged with their custody was also on vacation and the records would not be available on the date ordered by the court. Lincoln argues that it is inconceivable that a company would not have custody of its own records, but there is nothing in the record to disprove this assertion.

In any event, as soon as E.I.C. learned the records would not be available for inspection, its Louisville counsel called Lincoln’s counsel, explained the difficulty relative to producing the documents, and asked that the discovery proceedings be rescheduled. With knowledge of these facts, Lincoln’s counsel refused to agree to reschedule and proceeded to fly to California, knowing at the time he left Kentucky the records would not be produced and that a motion to reschedule had been filed with the court. E.I.C.’s president and counsel appeared at the time and place ordered and agreed that the deposition of E.I.C.’s president could be taken that day. Counsel for Lincoln had not provided a court reporter, refused to attempt to provide one, and insisted that he would not take the deposition until the next day at the scheduled time. At that point, counsel for E.I.C. questioned the court’s jurisdiction to compel discovery and advised his client not to appear.

The trial court was not faced with a situation where compliance with its order compelling discovery was flatly refused. At each stage of Lincoln’s efforts, E.I.C. offered justification for a delay. However, even if the court below believed E.I.C.’s excuses for delay were motivated by bad faith, the award of expenses and attorney’s fees was still not justified because Lincoln’s counsel incurred the expenses and made the trip to California knowing his efforts would prove fruitless. Viewed in this light, we conclude the trial court’s order of August 7th, awarding attorney’s fees and expenses to Lincoln’s counsel, was unjust and an abuse of the court’s discretion.

We do not intend that this opinion be construed as condoning additional unjustified delays of the discovery Lincoln seeks. Further, any expenses and attorney’s fees necessary to obtain that discovery could properly be awarded in subsequent proceedings before the court. CR 37. If the trial court’s orders subsequent to this appeal are ignored without justification then, of course, a denial of additional access to the courts of this state would be proper. National Union of Marine Cooks and Stewards v. Arnold, 348 U.S. 37, 75 S.Ct. 92, 99 L.Ed. 46 (1954).

The order appealed from is vacated and this cause remanded for further proceedings consistent with this opinion.

All concur.

      . CR 37.02(3) provides: “In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.”

      . Obviously there can be no question the Gray-son Circuit Court had jurisdiction to enter an order compelling discovery. E.I.C. voluntarily submitted to the jurisdiction of the court when the action was filed, sought relief from the court, and made no objection to the court’s exercise of jurisdiction through entry of a judgment. It cannot now seek to deprive the court of the same jurisdiction it asked the court to invoke. Duncan v. O’Nan, Ky., 451 S.W.2d 626 (1970).


source: Caselaw Access Project

author: NEARN, Judge.

license: Public Domain

text:
    GOLD KIST, INC., Appellee, v. Will J. PILLOW, Appellant.
    Court of Appeals of Tennessee, Western Section.
    Jan. 24, 1979.
    Certiorari Denied by Supreme Court May 7, 1979.

      L. L. Harrell, Jr., Trenton, for appellant.
    Rondal T. Wilson, Shelbyville, for appel-lee.
   NEARN, Judge.

Plaintiff Gold Kist, Inc. is in the business of buying soybeans from farmers. Defendant Will J. Pillow is a farmer in the business of raising soybeans for sale. By a series of written contracts the defendant agreed to sell and deliver to plaintiff several thousand bushels of beans. Depending upon when the several contracts were entered into, the sale price of the beans per bushel varied. The contract prices varied from $7.22 to $5.59 per bushel.

The defendant failed to deliver all the beans as contracted for and the plaintiff sued for contractual damages on two of the contracts. The Trial Court awarded judgment in favor of the plaintiff.

First, we must consider defendant’s motion which suggests a diminution of the record. Attached to the motion are copies of defendant’s interrogatories propounded to plaintiff; plaintiff’s answers thereto, and certain exhibits attached. The interrogatories and the responses thereto indicate that same were filed with the Clerk of the Trial Court. However, they bear no authentication by the Trial Judge. The Bill of Exceptions does not reveal that the discovery interrogatories were ever read to the Court and copied into the transcript. In fact, the record does not show the discovery interrogatories were ever considered by the Court.

In Benton v. Anderson (1978 Tenn.) 571 S.W.2d 145, the Supreme Court observed:

“The discovery depositions in this cause were neither copied in toto into the transcript, nor were they identified and authenticated by the chancellor. As a consequence, at this stage of the proceedings, the discovery depositions are not a part of the bill of exceptions and can not be considered by the appellate courts for any purpose.”

Therefore, the discovery depositions can not be made a part of the record on appeal and the motion is denied.

None of the Assignments of Error comply with Rule 12 of this Court which requires that “Reference must be given to the pages of the record where the rulings of the court complained of may be found.” However, with the aid of appellant’s “Propositions of Fact”, which do cite us to portions of the record, we are able to locate in the record the main evidentiary ruling complained of by appellant. Therefore, we will consider the main Assignment of Error.

That Assignment of Error is to the effect that the Trial Judge erred in admitting parol evidence which would tend to modify, alter, or vary the terms of a written contract.

The contracts in question provide that in the event more than one contract exists any delivery of beans “shall be applied first to the contract with the earliest date until delivery on said contract is completed and then to subsequent contracts in chronological order until delivery on them is completed.” The earliest contracts called for the lowest sale prices.

Plaintiff’s witness testified that when defendant started to deliver his beans he requested that they be applied to the later, higher priced contracts, as he was in need of money and such application would bring him in more money. Plaintiff agreed to defendant’s special request and applied the beans and paid to defendant a higher price on earlier deliveries than plaintiff was obligated to pay. Later on, defendant defaulted on deliveries of the lowest paying contracts.

Defendant denies none of this as he never took the stand. His defense was built upon the premises that the parol evidence rule, T.C.A. 47 — 2—202 and the modification rule, T.C.A. 47 — 2-209 bar the admission of this evidence. That being true, it is charged that plaintiff breached the terms of the contracts by not applying the beans to the oldest and cheapest contracts first and when defendant did default it must be considered that he defaulted on his higher priced contracts wherein plaintiff was required to pay $7.22 per bushel. Further, cover beans could have been bought for some few cents less than $7.00 per bushel. Therefore, defendant owed nothing to plaintiff.

The parol evidence rule is of no benefit to the defendant. That rule states in pertinent part:

“47-2-202 Final written expression — Parol or extrinsic evidence. — Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement . . . ”

In this case the defendant moved the Trial Court to exclude evidence of oral agreements which were made subsequent to the making of the written contracts — not prior to or contemporaneous with their making. Therefore, the rule is inapplicable to this case and it does not affect the admissibility of plaintiff’s parol evidence.

The modification rule, also, fails to be of any aid to the defendant. That rule states in pertinent part:

“(2) A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party. * * * * *
“(4) Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3) it can operate as a waiver.”

The contracts before us contain provisions within the contemplation of T.C.A. 47-2-209(2) to the extent that the contracts “may be amended only by written agreement signed by the party to be bound”. Thus, parol evidence of modification of these contracts would be inadmissible. However, parol evidence is admissible to show a waiver of a contractual provision. Baird v. Fidelity-Phenix Fire Ins. Co. (1942) 178 Tenn. 653, 162 S.W.2d 384.

The Tennessee Supreme Court adopted the following definition of and proof of waiver.

“ ‘Waiver is a voluntary relinquishment or renunciation of some right, a foregoing or giving up of some benefit or advantage, which, but for such waiver, he would have enjoyed. It may be proved by express declaration; or by acts and declarations manifesting an intent and purpose not to claim the supposed advantage; or by a course of acts and conduct, or by so neglecting and failing to act, as to induce a belief that it was his intention and purpose to waive.’ ” Baird v. Fidelity-Phenix Fire Ins. Co., supra.

Each party had the right to have the beans applied to the oldest contract first. Parol evidence is admissible to show a waiver. The proof here is that the parties mutually waived that right. Not only the testimony, but the acts of the parties themselves unequivocally show such mutual waiver. Plaintiff paid a higher price than at the time required and defendant accepted such higher price. Actually each party is estopped to rely on the “chronological order” provision of the contract. The defendant is especially estopped. It would be repulsive to all equitable principles to permit a party to request a change in terms of a written agreement and then escape liability because the other party had, in.good faith, granted the request. Equitable principles supplement the provisions of the U.C.C. T.C.A. 47-1-103.

All Assignments of Error are overruled and the judgment below is affirmed with costs of appeal adjudged against appellant and surety.

Done at Jackson in the two hundred and third year of our Independence and in the one hundred and eighty-third year of our Statehood.

SUMMERS and EWELL, JJ., concur.


author: SUMMERS, Judge.

text:
    CITY OF GREENFIELD et al., Plaintiffs-Appellants, v. Charles T. BUTTS et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    Feb. 12, 1979.
    Certiorari Denied by Supreme Court May 7, 1979.

      Robert L. Hearn, Greenfield, David H. Welles, Dresden, William Michael Maloan, Harold T. Brundige, Martin, George C. Thomas, Jr., George C. Thomas, III, Dresden, for plaintiffs-appellants.
    Harry Max Speight, Dresden, for defendants-appellees.
   SUMMERS, Judge.

This action was brought by five municipal corporations located in Weakley County, in conjunction with other citizens and residents of the municipalities, in the Chancery Court of Weakley County, Tennessee. The suit sought to have the Quarterly Court of Weakley County restrained and enjoined from assessing and collecting taxes against the property owned by residents of the municipalities as long as the streets and roads within the municipalities were excluded from any benefit derived from the collection of real property taxes authorized by Chapter 640 of the Private Acts of the Tennessee General Assembly which were passed in 1949. In the alternative, they asked that the Quarterly Court of Weakley County and the Board of Highway Commissioners be ordered to remit to the municipalities their pro rata share of all revenues derived from the taxes levied under the private act. The plaintiffs further prayed that the court declare the method of collecting and using county road taxes with regard to the city property owners a violation of the Constitutions of the United States and of the State of Tennessee.

Section 6 of Chapter 640, Private Acts of 1949, contains the following wordage:

Section 6. Be it further enacted, That said Board of Highway Commissioners shall have complete management and control of all public roads and bridges, (excluding highways which are a part of the State Highway System) in said County. . . (Emphasis supplied)

The plaintiffs stated that persons living within the municipalities are taxed under the act at the same rate as persons living outside the municipalities, and the County Highway Commission has refused to apply any of the tax revenues collected under the authority of the act for the benefit of the streets and roads lying within the corporate limits of the municipalities.

The chancellor dismissed the plaintiffs’ case, and this appeal resulted. The plaintiffs assigned as errors:

I. Appellants contend that the Chancellor erred in not holding that the application of Chapter 640 of the Private Acts of 1949 is unconstitutional as a violation of the equal protection clause of the United States Constitution. T.R. pp. 28-30.
II. Appellants aver that the Chancellor erred in construing that Chapter 640 of the Private Acts of 1949 does not apply to all roads within the boundaries of Weakley County, Tennessee, and that a certain portion of the road tax collected by the County of Weakley should not be distributed to the cities of Weakley County, Tennessee. T.R. pp. 28-30.

After reviewing the entire record, we adopt as a portion of our opinion the chancellor’s memorandum opinion which applies to the second assignment of error:

The five municipalities of Weakley County filed this action against Weakley County and others to enjoin the collection of taxes assessed against property owned by municipal residents “so long as the municipalities are excluded from sharing in the tax revenues.”
Chapter 640 of the Private acts of 1949 controls. The validity of this Act is unquestioned. It provides for the creation and maintenance of a public road system in Weakley County; vests the Board with management and control of all public roads and bridges, excluding those in the State Highway system; and authorizes a tax levy for the purpose of “securing funds for the proper construction, operation, and maintenance of the road system. This tax is levied upon all property in Weakley County, and the plaintiffs insist that a portion of the revenues thereby derived should be allocated to the towns for the repair and maintanance [sic] of their streets. It is insisted that the town residents are being denied equal protection of the law since they are required to help defray the costs of maintaining town streets. It is also insisted that the Act does not exclude town streets, and that the language used “all public roads and bridges” should be interpreted to include town streets.
If town streets are to be included within the ambit of the Act, the Board of Highway Commissioners of Weakley County would be responsible for the repair and maintenance of them, to the exclusion of the several town street departments, and County residents would then present the same argument presently advanced; it seems clear that it was not the legislative intent to require the Board to repair and maintain town streets. Apparently recognizing this fact, plaintiffs seek an allocation of funds, or alternatively, to enjoin taxation of town property for county purposes.

It must be remembered that in Tennessee the County is the basic unit of government. As stated in Earnest Vs. Greene County, 138 Tenn. [442] 450 [198 S.W. 417], the real estate constituting . a city or town .... is yet also a part of the County. Acts comparable to Chapter 640 have been uniformnly [sic] upheld, King Vs. Sullivan County, 128 Tenn [393] 396 [160 S.W. 847], and cases cited. In King, the County was authorized to levy taxes on all property in the County for the purpose of building roads outside Corporate limits, which is essentially the issue presently posed. The Court held that the taxation of property within corporate limits to build roads outside the city did not contravene Article I, Section 8 of the Constitution. To the same effect is the holding in Malone Vs. Taylor. A town resident has the same duty to support county government as does a non-town resident; each is a county resident. As stated in King, “if this were not so, the school system . maintained ... by tax levy . would . . . fall because similar taxes are levied by the various municipalities. The extra taxation which a citizen of an incorporated town must pay is to support his municipal government. It has no relation to the duty he owes to contribute to the support of the County Government which affords him equal protection with every other citizen whether they reside within or without a municipality.

“It is an extra burden which the citizen of a municipality bears for the benefit he derives from the municipal government.”

Finally, it should be noted that assuming a degree of equity in plaintiffs' insistence upon allocation of tax revenues, the Act does not provide for allocation and the Court knows of no way, absent legislative action, that these revenues may be allocated.

Complaint dismissed.

/s/ W. H. Inman_

Designated Chancellor

King and Earnest, supra, have well answered the question of the authority of the county to levy taxes on all property in the county for the purposes of building roads and highways outside the corporate limits.

A county is a creation of the general assembly, and in the case at bar the state delegated to the counties authority to completely manage and control all public roads and bridges. It is well settled in this state that the county does not have the power to lay off roads through towns. This is not the intention of the private act. The cases in Tennessee reflect that all public thoroughfares within the cities are referred to as streets and in the counties as roads or highways.

In looking to the definitions, the legal dictionaries are very clear on the distinction between streets and roads and/or highways. In Bouvier’s Law Dictionary, Eighth Edition, we find the following:

Street. A public thoroughfare or highway in a city or village. It differs from a county highway; ....
Road. A passage through the country for the use of the people.

In Black’s Law Dictionary, Revised Fourth Edition, the definition is more distinct:

Street. An urban way or thoroughfare; a road or public way in a city, town, or village, generally paved, and lined or intended to be lined by houses on each side.
Road. A highway; an open way or public passage; a line of travel or communication extending from one town or place to another; a strip of land appropriated and used for purposes of travel and communication between different places.

The Chancellor properly held that the road tax collected by the County of Weak-ley should not be distributed to the municipalities in the County of Weakley. There is a great deal of difference in the general make-up of a county and a municipal corporation in the operations of their roads and streets. It was held in Cowan’s Case 1 Tenn. (1 Overt.) 331, that the county court has no power to lay off roads through incorporated towns or direct that they be laid off in lots, streets or alleys. In City of Winchester v. Finchum, 201 Tenn. 604, 301 S.W.2d 341 (1957), the court spoke and said:

The general rule is that a city holds its public ways, not in its governmental, but in its proprietary or corporate capacity, and it owes an absolute duty to exercise reasonable care to keep its streets and sidewalks safe for use in the ordinary modes by persons exercising reasonable care. City of Memphis v. McCrady, 174 Tenn. 162, 164, 124 S.W.2d 248, [249]; Vinson v. Fentress, 33 Tenn.App. 359, 370, 232 S.W.2d 272; City of Nashville v. Brown, 25 Tenn.App. 340, 345, 157 S.W.2d 612 [615] and cases there cited.

The second assignment of error is, therefore, overruled.

The first assignment of error addresses itself to the proposition that the private act is unconstitutional as a violation of the equal protection clause found in the 14th Amendment to the United States Constitution. We find no merit in this argument.

The County of Weakley applies a uniform tax rate on the real property regardless of whether it is inside or outside the corporate boundaries. The tax is uniformly applied to all county residents for the purpose of maintaining roads. The citizens of the municipalities are also citizens of the County of Weakley, and the citizens of Weakley County are responsible for the maintenance of the public roads and highways and bridges of Weakley County. The citizens of the municipalities are responsible for the streets in their individual municipality.

In Smith v. Dunn, 381 F.Supp. 822 (M.D. Tenn., 1974), the court speaks in regard to legislation in question as it applies to two classifications of citizens in Tennessee. Judge Morton defines the applicable test necessary and the distinctions therein:

In deciding the constitutionality of this distinction it is, of course, accepted that under the Fourteenth Amendment States need not treat all classes of persons identically. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Carrington v. Rash, supra [380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675]; Manson v. Edwards, 482 F.2d 1076 (6th Cir. 1973). The validity of state classifications under the equal protection clause is assessed with reference to one of two established standards of review. The traditional standard, or “rational basis test,” “requires that a state classification be upheld unless there is no rational relationship between the classification imposed by the state and the state’s reasonable goals.” Robinson v. Board of Regents, 475 F.2d 707, 710 (6th Cir. 1973). In applying this standard courts recognize that “[legislatures are presumed to have acted constitutionally . . . and their statutory classifications will be set aside only if no grounds can be conceived to justify them.” McDonald v. Board of Election, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969).
The second and more recent standard, the compelling state interest test, calls for a stricter standard of review where a classification, such as race, is inherently “suspect,” or where a fundamental right of the complaining class is at stake. Under this standard a state must go beyond merely showing that its classification has a rational basis and establish that it is justified by a compelling state need. Among the fundamental interests calling for stricter scrutiny are the right to vote, Dunn v. Blumstein, supra [405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274]; the right to interstate travel, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1960); and the right to procreate, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).
In choosing the appropriate standard in the instant case, we conclude that the statute under review must be upheld if it can be justified under the rational basis standard of equal protection review. .

This court can find no invidious discrimination upon the residents of the five municipalities in Weakley County, and, therefore, we hold that the application of Chapter 640 of the Private Acts of 1949 is constitutional and does not violate the equal protection clause of the United States Constitution. The first assignment of error is overruled.

The judgment of the Chancery Court of Weakley County is affirmed in all things, and the costs of the appeal will be paid by the appellants.

MATHERNE and NEARN, JJ., concur.


author: SAM L. LEWIS, Special Judge.

text:
    Thomas Henry BATES, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 30, 1978.
    Certiorari Denied by Supreme Court June 12, 1978.

      Edward G. Thompson, Shelby County Public Defender, Charles E. Baueum and James D. Macy, Asst. Public Defenders, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., W. Fred Axley, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

SAM L. LEWIS, Special Judge.

Defendant, Thomas Henry Bates, was indicted and convicted for the offense of third degree burglary and his punishment fixed at not less than three (3) nor more than three (3) years. He appeals and assigns as errors the failure of the trial judge to suppress all evidence obtained as a result of his arrest and the failure to instruct the jury that the offense of petit larceny is a lesser included offense of third degree burglary.

The assignments are without merit.

A motion to suppress was heard outside the jury. Memphis Police Officer David Booker was the only witness who testified on the motion. He and his partner went to Mid-America Paint Company to investigate a burglary. Their investigation at Mid-America consisted of talking with Robert Clark, an employee, and making a preliminary investigation of the crime scene. As a result of the preliminary investigation, the defendant became a suspect. Defendant, a former employee of Mid-America, had burglarized Mid-America on previous occasions. The investigation showed the point of entry into the plant was through the opening in a broken window. It would take someone of small stature to enter through the opening. Officer Booker had known the defendant for a period of time, knew he was of small stature and had seen him earlier in the evening. At the crime scene there were a number of shoe prints made by what appeared to be a tennis shoe. There was also evidence of a purplish-pink dye at the crime scene.

Officer Booker and his partner went to the general area where they had seen the defendant earlier and where he had been known to have “fenced” previously stolen merchandise. The defendant was located within five (5) blocks of the Mid-America plant. When the officers had seen him earlier in the evening he was wearing leather-type shoes but had changed to tennis shoes. When the defendant saw them he attempted to shy away or ignore the officers. He was called to the police car and at that time Officer Booker saw a purplish-pink dye of the type seen at the crime scene on one of defendant’s tennis shoes. The officer then looked at the bottom of defendant’s shoe and saw the same type dye and that the tread design was of the same type he had seen at the crime scene. Defendant was placed under arrest and taken back to the Mid-America plant. He was, for the second time, advised of his constitutional rights and a search of his person made. The officer felt a hard object in his right front pocket and “pursuant to general orders of the department” had to verify if it was a weapon. When it was taken from his pocket, the object was found to be a measuring tape identified as being taken from Mr. Clark’s desk at Mid-America.

It is plain the officers had probable cause to stop, question and place the defendant under arrest. Hawkins v. State, 543 S.W.2d 606 (Tenn.Cr.App.1976).

The search at the crime scene was a lawful search incident to arrest and the evidence was properly admitted. A police officer may conduct a limited weapons search for the necessary protection and safety of himself and others. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

The trial judge was correct in refusing to charge the offense of petit larceny. The defendant was charged only with having committed the crime of third degree burglary-

This Court, speaking through Judge Oliver, said in Petree v. State, 530 S.W.2d 90 (Tenn.1975):

“[W]e conclude and hold that the law of this State now is that larceny and attempt to commit larceny are not essential elements of burglary and, hence, are not lesser included offenses of that crime.
“Of course, as is sometimes done, a count of burglary in an indictment may also include a charge of stealing specified articles from the burglarized premises. In such a case the defendant may be convicted of larceny of the goods or property if the proof shows beyond a reasonable doubt and to the satisfaction of the jury that he did so. Chapple v. State, 124 Tenn. 105, 135 S.W. 321. But, in such a case the conviction of larceny is proper because of the distinct and separate crime being also specifically charged, and not upon the theory that it is a lesser included offense of burglary.” Id. at 94.

The defendant was not on trial for petit larceny. It, therefore, would have been error for the jury to have been charged concerning petit larceny. Church v. State, 206 Tenn. 336, 333 S.W.2d 799 (1960).

We affirm.

RUSSELL, P. J., and FRED GILLIAM, Special Judge, concur.


author: O’BRIEN, Judge.

text:
    James William BISHOP, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 24, 1979.
    Certiorari Denied by Supreme Court May 7, 1979.

      Robert T. Rochelle and Ernest W. Cotten, Lebanon, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, R. David Allen, Asst. Dist. Atty. Gen., Lebanon, for appellee.
   OPINION

O’BRIEN, Judge.

Defendant was convicted of second degree murder with punishment fixed at sixty (60) years in the penitentiary and for grand larceny for which he was sentenced to serve not less than six (6) years nor more than ten (10) years.

The victim of the homicide was a seventy-three-year-old widow who lived somewhat as a recluse in a two-story dwelling in Lebanon, Tennessee. The upper story of the dwelling had been converted into an apartment for rental purposes. She had a stepson who communicated with her by telephone two or three times a week and visited her occasionally to see about her needs. On the morning of August 26, 1976, the stepson Franklin Gill called by telephone and received no response. As a result he went to her residence to check on her. Finding the door locked he gained entrance by going up an outer stairway to the upstairs apartment and found that door unlocked and open. The room was in disarray with various items scattered about including a skirt and slip which he identified as belonging to his stepmother. Descending the inside stairway he found the lifeless body of Mrs. Gill lying on her bed and reported to the police. Subsequently her spectacles were found under an article of furniture in the upstairs room. Two buttons which proved to be missing from her blouse were also found on the floor in that room. Several articles of jewelry including a diamond wedding band set and a Bulova watch were among the articles missing from the home. Police officers investigating the homicide found beside the nude body a pillow with a marked indentation stained with blood and mucus. The victim’s blouse was wrapped around her neck. Pathological examination disclosed the cause of death to be asphyxia resulting from smothering or suffocation. The time of death was fixed at sometime between eighteen hours and thirty hours prior to the pathologist’s examination which was conducted at 04:30 p. m. on August 26th. Investigation led to defendant. The victim’s gold watch was found in an automobile owned by him. The rings were recovered from a pawn shop where he had disposed of them. Between 11 and 12 o’clock a. m. on Wednesday, August 25th, he had been observed by a neighbor going up the outer stairway with Mrs. Gill. The witness, who customarily saw Mrs. Gill working about her yard in the afternoons, did not see her alive after that time. The husband of this witness had seen a green ’65 Chevrolet automobile, resembling one owned by defendant, parked at the victim’s house two or three days before her death. The description he gave of the driver matched that of defendant. Another witness, an attorney with an office adjacent to the dwelling of the victim, testified that a man fitting the description of the defendant was at the residence in the latter part of July or the first part of August, 1976.

The first assignment relates to the indictment. Defendant argues that a motion to dismiss the indictment should have been sustained because the names of the witnesses to be summoned in the case were not endorsed on it by the attorney general, and it was not signed by him in accordance with the statute. (T.C.A. Sec. 40-2407). It is argued that this statute is mandatory and the indictment was fatally deficient for the reasons stated. At the conclusion of a pretrial hearing the trial judge ruled there was nothing wrong with the indictment. The Technical Record contains separate indictments for each charge. Our examination indicates they were not deficient in any manner. Insofar as the issue here is concerned the State witnesses were listed on the front of the indictments, as was the typed name of the attorney general pro tern whose signature appears on the second page. This complies with the statute which is directory and not mandatory. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963); Arrington v. State, 548 S.W.2d 319 (Tenn. Cr.App.1976). The purpose of this statute is to make known to the defendant the names of witnesses who will be called to testify so that he will not be surprised and handicapped in the preparation of his case. McBee v. State, supra. Defendant has not shown that he was prejudiced in any manner by any technical noncompliance with the statute. We overrule the assignment.

Defendant says he was denied due process and the right to effective assistance of counsel because a document he categorizes as a confidential communication between him and his counsel was seized from his jail cell. On March 21,1977, prior to his trial on May 2nd, while defendant was incarcerated in Wilson County Jail, a jail break was attempted by other inmates in the cell. This brought about a search in which, among other things, a document prepared by defendant was seized by sheriff’s deputies. The instrument was a day by day account of defendant’s actions for several days prior and subsequent to the date of the homicide. He claimed this was prepared at the request of his attorney for use in his defense. Copies were made and turned over to investigating officers. The original was turned over to his attorney on the 28th day of March, approximately one week after it was taken from his cell. It was defendant’s argument that any effort to establish an alibi defense had been prejudiced by disclosure of the contents of the document to the investigating officers and the district attorney general. The trial judge declined to allow the State to admit the document into evidence on direct examination, but subsequently allowed its use for cross-examination of the defendant. We find no fault with that judgment. It is conceded that the authorities had the right to search the cell after the attempted escape came to their attention. Certainly they had a right to examine whatever may have been found there. There was no indication in the paper writing that it was a confidential instrument of any nature. It was not essential for the court to read the document in question to rule on the legality of the seizure or its temporary retention by the authorities. At the hearing defendant proposed to introduce witnesses to show that the officers made copies of the instrument before turning it over to his attorney. The court did not question that fact. Defendant does not show in what manner he was prejudiced. The document was not addressed to anyone. It was unsigned. It was not incriminating in any sense other than it indicated defendant had been to the victim’s home prior to the homicide and contained reference to some jewelry purportedly purchased from a stranger. These were matters which he testified to at trial. Defendant was not inhibited in his alibi defense. Under current procedure, upon demand made, a defendant is required to give notice of an alibi defense specifying the place or places which he claims to have¿ been at the time together with the name and addresses of witnesses upon whom he intends to rely to establish the defense. (Rule 12.1, Tennessee Rules of Criminal Procedure, effective July 13, 1978). We overrule the assignment.

Defendant objected to denial of a motion to suppress evidence obtained as a result of a search of his residence and automobile. He cites various grounds to support the invalidity of the warrant including the charge that the search was based upon statements obtained from his wife and that this was a privileged communication.

Insofar as the search warrant and the affidavit to the search warrant are concerned we note first of all that no part of the search warrant is included in the Bill of Exceptions. It has been settled law in this State for many years that a search warrant is evidence and, like any other evidence, it must be included as part of the Bill of Exceptions before it can be considered on appellate review. Chico v. State, 217 Tenn. 19, 394 S.W.2d 648 (1965). However, based on the evidence contained in the Bill of Exceptions we find nothing fallible about the ruling of the trial judge on the hearing to suppress evidence. He held that the warrant met all the requirements under the law for its issuance and execution. He considered all of the eight grounds set out in the motion to suppress and overruled each. We concur in those findings. The return of the officer on the warrant has been attacked. The law is clear that any irregularities in the method of returning a search warrant do not affect the right to make a search and do not affect the admissibility of evidence acquired as a result of it. See Bragg v. State, 155 Tenn. 20, 290 S.W. 1 (1927); State v. Calvert, 219 Tenn. 534, 410 S.W.2d 907 (1966). Complaint is made. that the issuing magistrate who signed the search warrant had formed an opinion in regard to the guilt of defendant because of the language used in finding probable cause. This assertion is not supported by the record or by any citation of authority. We find no merit in the assignment. We also overrule defendant's assignments contending the information obtained from Mrs. Bishop by the investigating officers was a privileged communication. In Clark v. State, 159 Tenn. 507, 19 S.W.2d 228 (1929), it was made clear that a wife’s incompetency as a witness against her husband did not bar the testimony of strangers to the marital union because the facts related in their testimony were discovered by them as the result of extrajudicial and voluntary disclosures of the wife. This is sound law particularly applicable to the facts in this case. The officers did no more than utilize the information obtained from Ms. Bishop in continuing their investigation of the crime.

Complaint is made about the testimony of a rebuttal witness whose name had not been endorsed on the indictment nor sequestered during trial. The witness in question was called by the State for direct examination. The district attorney general informed the court that he had only learned a few minutes earlier of the materiality of the testimony the witness might give. After a jury-out hearing the trial judge refused to allow the testimony of this witness on direct examination. At the close of the defense proof the witness was introduced, without objection, in rebuttal. He testified that some time prior to the homicide he had seen defendant walking in the yard of the Gill house. The testimony did no more than corroborate defendant’s own admission that he had been to the victim’s house on three occasions prior to her death. Although the office of rebuttal testimony is not corroboration of defense evidence, this testimony could not have in any way prejudiced the defendant. The assignment is overruled. See Cook v. State, 3 Tenn.Cr.App. 685, 466 S.W.2d 530 (1971).

Defendant assigns error to the admission of the testimony of a State’s witness on the premise that she had made prior contradictory statements at a preliminary hearing relative to the identity of defendant and because her identification was tainted by the fact that she first identified the defendant by use of a single picture in a local newspaper.

Mrs. Ponder testified she saw defendant on the outer stair landing on the second floor of the Gill home on August 25, 1976, the day before Mrs. Gill’s body was discovered. It was her further testimony ■ that several days later she saw a picture in a local newspaper which resembled the person she had seen at the Gill residence. She was positive of her in-court identification of defendant as the person whom she saw at the Gill residence and whose picture she observed in the newspaper. There was no State action involved in Mrs. Ponder’s identification of defendant from the newspaper picture and her subsequent report to the police. The safeguard of the exclusionary rule in such matters does not apply to the activities of private citizens. See Ennis v. State, 549 S.W.2d 380 (Tenn.Cr.App.1976). We have read the record and do not agree that this witness made a prior contradictory statement at the preliminary hearing although the record indicates she was less positive in her identification. Her testimony was admissible and entitled to such weight as the jury might give to it.

Defendant said the State failed to prove the guilt of defendant beyond a reasonable doubt.

The evidence summarized was ample to warrant the verdict of the jury. It is not the function of the appellate courts to reweigh evidence adduced at a criminal trial; a guilty verdict, approved by the trial judge, accredits the testimony of the State’s witnesses and resolves all conflicts in the testimony in favor of the theory of the State. State v. Hatchett, 560 S.W.2d 627 (Tenn.1978).

Defendant attributes error to the closing argument of the State’s counsel which he charges was unduly prejudicial and inflammatory.

Inflammatory argument by counsel is never to be condoned, and should be avoided at all costs by the prosecutor. His reference to the defendant as an animal, and a similar remark cited, is certainly not commendable. The other reference made in the brief, categorized as a comment upon the defendant’s right to refuse to answer questions while in jail, was an indelicate reference to cross-examination by defense counsel regarding the cooperative attitude of defendant with the authorities. In view of the mass evidence implicating defendant in the crime, the impact of any comments made by State’s counsel in closing argument was minimal and could not have affected the outcome of the trial. See Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758 (1965). We overrule the assignment.

The judgment of the trial court is affirmed.

DUNCAN and DAUGHTREY, JJ., concur.


author: DAUGHTREY, Judge.

text:
    James Ronald JIMINEZ, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 1, 1979.
    Certiorari Denied by Supreme Court May 7, 1979.

      James R. Omer, James F. Sanders, Dale M. Quillen, Nashville, for appellant.
    William M. Leech, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Nashville, Harold B. McDonough, Jr., and Sterling P. Gray, Jr., Asst. Dist. Attys. Gen., Nashville, for appellee.
   OPINION

DAUGHTREY, Judge.

The defendant-appellant, James Ronald Jiminez, was convicted of selling a schedule II controlled substance (cocaine) to an undercover agent of the Tennessee Bureau of Identification. The jury assessed the maximum sentence provided under T.C.A. § 52-1432(a)(1)(B): seven to ten years imprisonment and a fine of $15,000.00. On appeal the defendant challenges (i) the admissibility of certain evidence tending to establish his participation in other drug sales, (ii) the admissibility of the actual controlled substance in this case, (iii) the trial court’s failure to allow inspection of documents under T.C.A. § 40-2446, and (iv) the allegedly excessive nature of the sentence imposed. Because the evidence establishing the defendant’s guilt is clear and virtually uncontested, and because there is no reversible error in regard thereto, we affirm the conviction. However, for the reasons stated below, we find that the sentence assessed by the jury must be modified.

Proof at trial showed that Jiminez sold three-quarters of an ounce of a powdered substance, a substantial portion of which proved to be cocaine, to T.B.I. Agent Richard L. Grinalds in exchange for $950.00. This prearranged sale took place in a Nashville restaurant parking lot, where it was observed and photographed by eight other state and federal narcotics agents. According to Grinalds’s testimony, the buy was merely a “sample”: it was agreed between Jiminez and Grinalds that if the cocaine proved to be of acceptable quality, the agent would make regular buys from the defendant, in amounts up to a pound of cocaine a month. In order to demonstrate his purported ability to make a large buy, the agent took the defendant to his car and showed him $25,000.00 in cash, which had been supplied through state funds for this purpose.

The State sought to introduce into evidence the fact that the defendant was subsequently arrested in Cookeville, Tennessee, after making a second cocaine sale (apparently also to T.B.I. Agent Grinalds). The trial judge refused to permit the introduction of the details of this sale into evidence, but did allow the State to develop testimony concerning Jiminez’s agreement to supply Grinalds with cocaine on a regular basis in the future. The trial judge ruled that this evidence was relevant to show motive and to establish that although the transaction involved less than an ounce of cocaine, it was nevertheless something more than a mere “casual exchange” as that term is used in T.C.A. § 52-1432(a)(2). Had the trial judge limited the testimony to proof of statements made by the defendant during the course of the offense for which he was on trial, we would have little hesitancy in upholding his ruling even though the statements evinced a stated intent to commit other crimes of a like nature in the future. In the circumstances of this case such evidence would not violate the rule prohibiting proof of other crimes in order to establish a propensity to commit the offense in question. However, the trial judge here went further, permitting the State to establish that the agent “lived up to his part of the agreement” on the ground that such proof “keeps it [the agreement] from just dangling in the air [and] gives some end to the situation.” The trial court labelled this “an admissible cut-off.” Thus the jury was permitted to hear the following exchange on Grinalds’s direct examination:

Q: Now Mr. Grinalds, when [the defendant] left, did you all have any agreement that you would get together in the future, sir?
A: Yes, sir, as I left his vehicle, it was agreed that I should contact him the following Monday, or at least, within the week, and he would let me know something.
Q: All right, and for what purpose were you all to get back in touch with each other for, sir?
[Objection by defense counsel overruled.]
A: To arrange to purchase more cocaine.
Q: And how much were you arranging to buy, sir?
A: At least one pound.
Q: All right . . . and did the Defendant subsequently carry out his agreement?
[Objection by defense counsel sustained as to the form of the question: prosecutor permitted to reformulate.]
Q: Now, Mr. Grinalds, did you subsequently go through with the agreement that you had with the Defendant?
A: Yes, sir, I did.

We conclude that in permitting the question to be rephrased, the trial court honored form over substance. The only fair inference that the jury could draw from this testimony is that the defendant subsequently made an unknown number of large sales of cocaine to Grinalds. This evidence was plainly and improperly prejudicial, and, unfortunately, may well have left the inaccurate impression with the jury that subsequent sales occurred over a longer period of time than actual proof would have indicated. While we find that the. proof of Jiminez’s guilt was so overwhelming that the error committed with regard to Gri-nalds’s testimony could not have affected the jury’s verdict on that issue, we are unable to say that the improper testimony did not affect the punishment assessed.

The evidence clearly violates the prohibition against “other crimes” evidence, and it cannot be excused as an exception to the general rule because it was not necessary to establish identity or any of the necessary elements of the crime. Collard v. State, 526 S.W.2d 112 (Tenn.1975); Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523, 529 (1963). Whatever the probative value of this evidence, in terms of “not leaving the jury dangling,” the probative value is plainly outweighed by its prejudicial effect. The maximum sentence may reflect an attempt by the jury to punish the defendant for a surmised course of dealing, rather than for the single offense with which he was charged. Such a sentence would, of course, be illegal. Armstrong v. State, 555 S.W.2d 870, 875 (Tenn.Cr.App.1977). However, the error here may be corrected by modification of the punishment to the minimum sentence provided by law, subject to the State’s consent. Depue v. State, 532 S.W.2d 937 (Tenn.Cr.App.1975), relying on Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738 (1956). See also Armstrong v. State, supra. Should the State desire a retrial on the issue of punishment, the case must then be remanded for a hearing on that question alone. Huffman v. State, supra.

We find no other error in the record. The chain of custody of the packet of cocaine bought by Agent Grinalds from the defendant was sufficiently established to permit its introduction into evidence. The trial court correctly ruled that the agent’s case report was work product and was therefore not subject to inspection under T.C.A. § 40-2446, a statute of constitutionally doubtful efficacy at the time of this trial. See Crawford v. State, Court of Criminal Appeals at Knoxville, May 3, 1977; affirmed by the Tennessee Supreme Court (per curiam), May 22, 1978. The specific question raised by the defendant concerning the excessive nature of the sentence is rendered moot by the ruling set out above. The remaining assignments of error are therefore overruled.

The judgment is modified to reflect as punishment a sentence of not more nor less than four years imprisonment, subject to the State’s approval. In all other respects, the judgment is affirmed.

WALKER, J., and SAM L. LEWIS, Special Judge, concur.


author: WALKER, Judge.

text:
    Kerry MORGAN, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 5, 1979.
    Certiorari Denied by Supreme Court March 26, 1979.

      B. C. Melnturff, Kingsport, for appellant.
    William M. Leech, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Carl K. Kirkpatrick, Jr., Dist. Atty. Gen., R. Jerry Beck, Asst. Dist. Atty. Gen., Kingsport, for appellee.
   OPINION

WALKER, Judge.

In three cases tried together in Sullivan County, the jury found the appellant, Kerry Morgan, guilty of rape, kidnapping and crime against nature and fixed respective punishments of 32 years, not less than four nor more than eight years, and not less nor more than ten years in the penitentiary. The trial judge ordered the kidnapping sentence to be served consecutive to that of rape and the crime against nature to be served concurrent with that of rape.

At about 7:00 a. m., Saturday, October 15, 1977, Janet Irene Morrisett, age 13, had begun to deliver newspapers on her route in Kingsport when she was passed by a man in a red Monte Carlo Chevrolet with Virginia license plates. The man returned and asked to buy a paper. After she sold him one and turned to go, he seized her from behind, put his hand over her mouth and forced her into his car. He then drove away, forcing her to put her head in his lap.

By Janet’s testimony, the appellant threatened her and forced her to remove some of her clothing and inserted his penis into her private parts, forcibly and against her will. He also licked her private parts. While he sought to enter her again, he ejaculated on the lip of her private parts, after which he returned her to the place where he had found her. He told her to get out of the car and not look back. He then drove away.

Janet promptly went in a nearby store and asked to use the telephone. She was crying and reported to her father that a man had tried to rape her. Her father as well as officers came and the investigation began.

Janet described the automobile and the man involved in detail. She picked the appellant’s photograph from an array of pictures and at trial she positively identified him as her assailant.

The appellant lives in nearby Pennington Gap, Virginia, and drives a similar red Monte Carlo automobile owned by his wife. Tennessee and Virginia officers found this car at his home on November 2 and the Tennessee officers asked the appellant to accompany them to the Pennington Gap Police Department. There they took a statement from him and also took fingerprints, palm prints and samples of pubic and head hair.

On the newspaper Janet had sold her attacker, the FBI found latent palm prints matching those of the appellant. Semen was also on some of her underclothing.

At about 8:15 a. m. on October 15, Dr. J. Kent Blazer examined Janet. There was no evidence of tears of her hymen and no gross evidence of blood. Inside the vagina there was an increase in the amount of secretion present. From a depth of about an inch and a half in the vagina, Dr. Blazer removed a sample of this secretion. In it he found small numbers of nonmobile sperma-toza. In his opinion it was unlikely that sperm would be found at that depth inside the vagina without the person having penetrated the vulva or labium with his penis. Dr. Blazer’s findings are consistent with such penetration of Ms. Morrisett. Several months after this examination, the girl returned to Dr. Blazer and he explained her physiology to her.

Testifying in his own behalf, the appellant denied abducting, raping, attempting to rape or licking the private parts of a girl in Kingsport on October 15 or any other day. By his testimony he spent the night at his home with his wife and child. He received a long distance telephone call at about 6:15 or 6:30 from his mother-in-law and had a caller at about 7:00 a. m. He went back to bed and got up around 10:00 a. m. to put up Celotex with the help of his brothers-in-law. His wife corroborated his testimony that they slept together that night and that he got up at about 10:00 a. m. She said that she went for two additional boxes of Celotex that morning. Rick Martin, his brother-in-law, corroborated his testimony concerning the installation of the Celotex, and the appellant’s mother-in-law corroborated his testimony about her call.

The appellant, smooth shaven at trial, denied having a beard on October 15 as testified to by Ms. Morrisett and offered a number of witnesses to support him on that question. The state offered evidence to the contrary. The appellant also testified that he was not wearing a uniform at that time as the girl claimed.

The appellant said that he was coerced into signing a statement and that he did not know what was in the statement he signed. He explained his palm print on the newspaper by saying that Officer Flanary of the Kingsport Police Department asked him to hold the newspaper for him to take a photograph. In rebuttal the officers denied that this took place. The appellant also presented a number of character witnesses.

In challenging the sufficiency of the evidence, the appellant argues that the evidence does not show that the girl was raped, that there was no proof of penetration, that the offense of crime against nature also requires penetration and none was shown here, and that he could not be convicted of these three charges because they were all part of the same transaction.

When the girl first reported the offense, she said that a man had tried to rape her. At trial she explained that she had not known what penetration meant when she had made that statement. By Dr. Blazer’s testimony, sperm would not have been found so deep in the vaginal vault without penetration. His testimony and that of Ms. Morrisett support penetration. Her testimony is ample on all the elements of rape. King v. State, 210 Tenn. 150, 357 S.W.2d 42 (1962).

On similar facts to those of this case, we affirmed the conviction for crime against nature in Locke v. State, 501 S.W.2d 826 (Tenn.Cr.App.1973), rejecting the contention that the statute was unconstitutional as indefinite, vague and uncertain, a claim also made here. Subsequently the United States Supreme Court also rejected Locke’s similar contentions in Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975).

In arguing that he cannot properly be convicted of these three charges, the appellant relies on the same transaction rule. Our Supreme Court has expressly rejected that test. State v. Black, 524 S.W.2d 913 (1975). The elements of the offenses are not the same and additional facts are necessary to prove each of them. Separate convictions were proper. See Lundy v. State, 521 S.W.2d 591 (Tenn.Cr. App.1974); Cherry v. State, 539 S.W.2d 51 (Tenn.Cr. App.1976).

The jury accredited the state’s evidence and resolved the conflicts in favor of the state’s theory of the cases. The evidence does not preponderate against those verdicts.

The appellant insists that the court erred in dismissing his motion to suppress evidence, thereby violating his constitutional rights. He cites Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

After a hearing out of the presence of the jury, the trial judge held that the appellant had been properly warned of his rights and had waived them. The evidence showed that the appellant accompanied the officers willingly to the police station in Jonesville, Virginia, and that he signed a waiver of his rights as well as the statement which denied any connection with the crimes. The trial judge properly held that his claim of coercion was without foundation. His finding is binding on this court. State v. Chandler, 547 S.W.2d 918 (Tenn.1977). In addition, we note that the appellant was not in custody and was free to leave at any time. In fact, he went outside several times during the questioning. He was then returned to his home and resumed his business of delivering a truckload of rocks. He was not arrested until several days later. Although he was carefully warned in accordance with Miranda, he was not in custody so as to require those warnings under the rule in Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, (1977). See Abbott v. State, 509 S.W.2d 524 (Tenn. Cr.App.1973).

The appellant voluntarily gave the officers hair samples and allowed them to take fingerprints and palm prints. At that time he said he had nothing to hide, and he voluntarily signed consent forms. The appellant’s wife gave officers permission to photograph her car. The appellant apparently complains because the officers had taken a photograph of the car before he arrived home. That photograph was not introduced into evidence, but, in any event, the car was plainly visible from the property next door and from the railroad property nearby. The appellant has not shown that any of his constitutional rights were violated and his motion to suppress was properly dismissed.

Morgan contends that the court erroneously instructed the jury on fingerprints when palm prints were actually involved. The evidence showed that the use of palm prints is similar to that of fingerprints. If error, this was harmless.

Likewise without merit are Morgan’s contentions that the trial judge overemphasized carnal knowledge in his rape charge, that he improperly charged the law of crime against nature and that he improperly commented on the evidence in his instructions in violation of the Tennessee Constitution.

Morgan argues that our rape statute, TCA 39-3701, is unconstitutional in that it is discriminatory. He relies on Meloon v. Helgemoe, 564 F.2d 602 (1st Cir. 1977), cert. denied 436 U.S. 950, 98 S.Ct. 2858, 56 L.Ed.2d 793 (1978). That case is not applicable, because it considered a violation of the age of consent statute rather than forcible rape. It expressly limited itself to that New Hampshire statute. We considered a similar challenge in Stewart v. State, 534 S.W.2d 875 (Tenn.Cr.App.1975), and found this statute constitutional against such attack.

We find no abuse of discretion on the part of the trial judge in ordering the kidnap sentence to run consecutive to that of rape. Implicit in the trial judge’s reasons for imposing a consecutive sentence is a finding that the appellant is a dangerous offender under the guidelines of Gray v. State, 538 S.W.2d 391 (Tenn.1976). He found aggravating circumstances in these inherently dangerous crimes. The crimes to this young person were committed with force and threats. The trial judge also considered the age and immaturity of the 13-year-old girl who “would have been hard to distinguish from a school boy,” and he could not understand what kind of a depraved mind would refuse the girl’s pleas to let her go. He imposed the sentences to protect young people. In Bethany v. State, 565 S.W.2d 900 (Tenn.Cr.App.1978), this court recognized that the protection of young children may be taken into account when considering consecutive sentences. The trial judge complied with Gray requirements.

Affirmed.

DUNCAN and DAUGHTREY, JJ., concur.


author: DAUGHTREY, Judge. O’BRIEN, Judge,

text:
    George Leslie TAYLOR, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 8, 1979.
    Certiorari Denied by Supreme Court May 29, 1979.

      Brett B. Stein and Phillip E. Kuhn, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Richard S. Maxwell, Asst. Atty. Gen., Nashville, Kenneth R. Roach, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

DAUGHTREY, Judge.

The defendant-appellant, George Leslie Taylor, was convicted of rape and sentenced to twelve years imprisonment. On appeal, he challenges the validity of this conviction, alleging that the trial judge (1) violated his rights under the double jeopardy clause and (2) committed certain errors in his instructions to the jury, and (3) that the prosecutor made an improper comment on the defendant’s failure to testify at trial. We find no reversible error and, accordingly, we affirm the judgment below.

The defendant first raised the double jeopardy question by motion to dismiss, in which he alleged that the same trial judge who presided in this case had acted precipitously at the defendant’s previous trial on this charge, by recalling the jury after only three to three and one-half hours deliberation and improperly forcing a mistrial. In fact, the record fails to sustain any such improper behavior on the part of the trial judge; on the contrary, it tends to show that the original jurors themselves initiated communication with the trial judge and subsequently informed him in open court that they were hopelessly deadlocked. Only after satisfying himself of this fact did the judge declare a mistrial, and properly so. We find no double jeopardy violation and no error in the trial court’s failure to dismiss the indictment.

Nor do we find any error in the jury instructions in this case. The defendant first complains of the trial court’s charge on “fresh complaint.” Although this specific instruction was disapproved in Albert Phillips v. State of Tennessee, Court of Criminal Appeals, January 24,1978, it is not so serious a misstatement of law as to require reversal. See generally Conboy v. State, 2 Tenn.Cr.App. 535, 455 S.W.2d 605 (1970); Tennessee Pattern Jury Instructions, T.P.I. — Crim. 25.01 — Rape. The otherwise proper instruction to the jury to consider “all the evidence adduced by the State and by the defendant” is not rendered improper by the defendant’s failure to offer proof, nor is the instruction concerning the weight to be given to an oral statement by the defendant, if any, erroneous merely because no such statement was proven. Bush v. State, 530 S.W.2d 95 (Tenn.Cr.App.1975). The jury was properly charged on identification, even though it was not disputed by the defense, because this is one of the elements which the State must prove beyond a reasonable doubt. Finally, the assignment of error related to the jury charge on T.C.A. § 40-2027 must be summarily overruled, there being no such instruction in the record.

The defendant’s last complaint, largely unbriefed, concerns an unspecified statement by the prosecutor in his closing argument which is alleged to have constituted an improper comment on the defendant’s failure to testify. Although it is not clear from a reading of the brief, apparently this assignment stems from the prosecutor’s observation that “[t]here’s only three people that know what happened in this room . . . [and the victim] told you what happened in that room.” There was no objection to this statement at the time it was made. For this reason, there can be no error in the trial court’s subsequent denial of the defendant’s motion for a mistrial, Rye v. State, 532 S.W.2d 941, 942-43 (Tenn. Cr.App.1975), unless the comment constitutes plain error. We hold that it does not. The prosecutor made no direct allusion to the defendant’s failure to testify, nor did he argue to the jury directly or indirectly that the omission to testify should be taken by them as an inference of guilt. Such an argument, if made, clearly would have been improper under Tennessee law, T.C.A. § 40-2403, and under the Fifth Amendment to the federal constitution, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). We take the single statement at issue here to be more closely analogous to an argument by the prosecution that the State’s proof is unrefuted or uncontradicted, which has been upheld under Tennessee law as not constituting all improper comment on the defendant’s failure to testify. Holder v. State, 490 S.W.2d 170, 173 (Tenn.Cr.App.1972); Schweizer v. State, 217 Tenn. 569, 399 S.W.2d 743, 748 (1966). The United States Supreme Court has never ruled to the contrary as a matter of federal constitutional law. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). See generally 14 A.L.R.3d 723, 24 A.L.R.3d 1093. Furthermore, the trial judge dissipated any prejudicial effect which might have emanated from the comment in question when he charged the jury that the defendant was “not required to take the witness stand in his own behalf, and his failure to do so cannot be considered for any purpose against him, nor can any inference be drawn . ■ . . ” therefrom. Squires v. State, 525 S.W.2d 686, 694 (Tenn. Cr.App.1975).

The only defense interposed below consisted of a strenuous attack upon the credibility of the complaining witness, who was the rape victim in this case. Following defense efforts at impeachment during cross-examination, her credibility was vigorously assailed by defense counsel in closing argument. Under these circumstances, the prosecution’s comment was no more than a “fair rejoinder . . . invited by the defense . . . [and if] some juror was thus reminded that the defendant had not testified, the court’s subsequent instruction concerning the jury’s duty to disregard the failure of the accused to testify minimized the risk of inferring guilt from such failure.” United States v. Heithaus, 377 F.2d 484, 486 (3rd Cir. 1967).

Nevertheless, we take this occasion to echo the highly pertinent words of warning issued by the New Jersey Supreme Court in a somewhat similar case:

We deal with the question primarily to caution against comments by prosecutors in opening and closing which may adversely affect an accused’s Fifth Amendment rights. At the present time the area is an extremely sensitive one. . Remarks which skirt the edges of impermissible comment are neither desirable nor worth the risk of reversal of what may well be a thoroughly deserved conviction. Caution is desirable until the constitutional boundaries of permissible comment on the state of the evidence when the accused does not testify are thoroughly established. In the meantime the sensible course is to assume that jurors can see as well as hear, and do not have to be told when evidence is uncon-tradicted.

State v. Dent, 51 N.J. 428, 241 A.2d 833, 840-41 (1968) (citations omitted).

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

O’BRIEN and BYERS, JJ., concur.

O’BRIEN, Judge,

concurring.

I concur fully with the majority opinion in this case particularly in view of the fact that defendant submitted no argument to support his assignment of error charging the trial judge with error in instructing the jury as to fresh complaint. In that regard the trial judge instructed the jury as follows:

“If complaint is made soon after the alleged act it tends to strengthen the testimony of the prosecutrix. If no complaint is made, or a long time elapses between the alleged act and her complaint, it tends to weaken her testimony.”

In Phillips v. State, (Tenn.Cr.App. 1/24/78), cert. denied, 5/1/78, cited by defendant, complaint was made re the exact same jury instruction. This court stated the law on the subject and, citing authority, went on to say the following in reference to the objected to jury instruction:

“It is the law of this State that evidence of complaint or lack thereof in a case of rape may be considered by the jury in weighing the truth or falsity of a victim's testimony. Conboy v. State, 2 Tenn.Cr. App. 535, 455 S.W.2d 605, (1970).”

There is no authority for the instructions delivered by the trial judge, not among the cases cited by the State, nor, among the numerous cases we have examined in our own research. It would be better for the trial judge to instruct the jury that they may consider the complaint, or lack thereof, in weighing the credibility of a victim rather than specifically stating that it tends to strengthen or tends to weaken the testimony of the witness. The sufficiency of the evidence is not contested and it is plain that the charge delivered did not affect the verdict of the jury, or the results of the trial. I would strongly recommend to trial judges the options included at footnotes 14 and 15 to Tennessee Pattern Jury Instructions, Criminal, (1978), Number 25.01, Rape, in cases of this nature.


author: SPEARS, Justice.

text:
    Mary E. STODGHILL et al., Petitioners, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Respondent.
    No. B-7987.
    Supreme Court of Texas.
    May 23, 1979.
    Norma Venso, Odessa, for petitioners.
    Shafer, Gilliland, Davis, Bunton and McCollum, Connell Ashley and Tryon D. Lewis, Odessa, for respondents.
   SPEARS, Justice.

Petitioner Mary Stodghill and her three children were awarded a judgment against Texas Employers Insurance Association (TEIA) for death benefits under the Worker’s Compensation Act pursuant to a favorable jury verdict. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment that there was no evidence to support the jury’s answer that an accidental fall injuring Thomas Stodghill was a producing cause of his death from a myocardial infarction forty-seven days later. 570 S.W.2d 398. We reverse the judgment of the Court of Civil Appeals and remand the case for a new trial.

In determining whether there is “no evidence” to support the finding of the jury as to the existence of producing cause, we must consider only the evidence and inferences which tend to support the finding of the jury and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Even though evidence was presented at the trial that no causal connection existed between Stodghill’s injury and his death, that evidence may not be considered in passing on the “no evidence” point. We thus review that evidence that is favorable to the finding of the jury.

On April 26, 1974, Thomas Stodghill was injured when he fell fifteen feet to the ground from a drilling rig on which he was working. He sustained a fractured right arm at the wrist, an acute lumbosacral strain, and a bruise and contusion of the right hip and the right elbow. Stodghill, 49 years old, was admitted to the hospital by Dr. Edwin E. Franks. His temperature was normal, pulse was 90, respiration was 20, and his blood pressure was 188/92. Dr. Franks noted on the hospital summary sheet that Stodghill had “essential hypertension” and defined the term as a history of high blood pressure. Stodghill was in the hospital for five days, and on the last day, Dr. Franks started Stodghill on blood pressure medication. On his release from the hospital, his blood pressure was 140/92. In the weeks following his release, Stodghill recorded readings of 140/80, 160/100, and 150/90, the upper limits of normal for him being 140/90. On May 7th, the blood pressure medicine was increased from one to two capsules a day. Stodghill never returned to work after his injury. On June 12th, he died at home of a myocardial infarction.

Petitioner Mary Stodghill, the widow, testified that during the time between her husband’s injury and his death, he was in pain, he couldn’t eat well, he would “bloat up” in his stomach, face and neck, and that “he complained of a lot of indigestion.”

On cross-examination, Dr. Franks admitted that in the case of a patient with hypertension, “stress can aggravate or accelerate or excite that condition of hypertension,” and that the accident that Stodghill had on April 24th “was obviously a great stress on him.” Dr. Franks further conceded that if a person has hypertension, that stress “can” kill him, and that stress “can” aggravate existing hypertension “to the point of causing heart failure.”

Dr. Diego Pasos was called to testify by the plaintiffs. Educated in Cuba, he interned at the University of Puerto Rico, and had one year of residence in general surgery after coming to West Texas. After practicing 18 months in Crane, Texas, he moved to Odessa, where he had been in practice for 7 months at the time of trial.

Dr. Pasos never examined the deceased Stodghill, but based his testimony on his study of Stodghill’s hospital records and a review of some medical books. He had some difficulty with the English language during his testimony, but despite that, seemed from the record to have understood and to have been understood. After summarizing the background and facts concerning the accident and the injuries sustained, Stodghill’s attorney asked Dr. Pasos if “there was any doubt in your mind but that this man received a very serious injury?”. His answer was:

“A. These injuries seem like they are going to be very serious, but the fact that this man, of the records showed that he had been suffering from essential hypertension, body injury could aggravate the progress, and trigger final complication to the hypertension.” (Emphasis supplied.)

Further questions and answers of Dr. Pasos included:

“Q. Now, I want to talk to you about that. I am going to ask you to assume with me, doctor, certain things to be true. Assume that after the period in the hospital that you have read about, as shown in Plaintiff’s Exhibit 2; assumed that he was at home, and that from time to time he would complain of indigestion, that he would, from time to time, swell or get puffed or bloated as his family had not seen him do before; that he was worried about going back to work, being able to go back to work, and finally on the 12th of June, he complained of indigestion and shortly thereafter had to be taken to the hospital where he was pronounced dead, and then assume that Plaintiff’s Exhibit No. 1, shows what happened at the hospital—
“A. Uh huh.
“Q. Now assume all of those things to be true. Assume that is what happened to him. Now, if that was the course of his treatment, and if he had the hypertension and had the kind of injury that he received on April 26, is there any question in your mind but what the injury triggered or aggravated the hypertension? * * * * * *
“Q. Do you have any doubt but what the injury triggered or aggravated the hypertension?
“A. Yes, it did. ... A patient with essential hypertension have been shown in all of these books, and all of those medical magazines that have been brought to the late scene of all of the hypertension, myocardial infarction and trauma and everything, they come together and they have agreed, most of them, that the stress on the bodily injury aggravates the arterial hypertension. Okay?
“Q. Is this the kind of injury, that this man received, that would create physical and mental stress?
“A. Possible. It is possible.
“Q. You say possible. Do you mean probable?
“A. Probable.
* * * * * #
“Q. Now, there are any number of medical books that teach the same thing you are saying, aren’t they?
“A. Yes, a lot of books.
“Q. Based upon what happened to this man, and how quickly he died, and the fact that he had the hypertension before he was injured, do you have any doubt in your mind, medically, but what the injury hastened his death?
* * * * * *
“Q. If you assume the things that show in the record, and that I have asked you to assume about his history, is there any question in your mind but what the injury that he got in April hastened his death?
“A. I have a strong belief that a man that has been injured, a man of this age, 49 years old with a previous history of arterial hypertension, and had been involved in an accident, any kind of accident which produced a bodily injury, will trigger any complication in hypertension, and basis — and the cause of death or death. The same thing that could be if a heart failure, could be renal failure, a blood clot, myocardial infarction; anything could be the fault of it, but the main thing here, the man was injured, and that injury could produce probably some kind of shortening of the life span.” (Emphasis supplied.)

Where expert testimony is relied upon to establish causation in a worker’s compensation case, expert medical testimony can enable a plaintiff’s case to go to the jury if there is testimony of a “reasonable probability” of a causal connection between the act and the present injury. Parker v. Employers Mutual Liability Insurance Company of Wisconsin, 440 S.W.2d 43 (Tex. 1969). The medical expert need not use the exact magic words “reasonable medical probability,” but the testimony is sufficient if the circumstances show that this is the substance of what the expert is saying. Lucas v. Hartford Insurance & Indemnity Company, 552 S.W.2d 796 (Tex.1977); Insurance Company of North America v. Kneten, 440 S.W.2d 52 (Tex.1969); Otis Elevator Company v. Wood, 436 S.W.2d 324 (Tex. 1968).

The substance of the testimony of Dr. Pasos was that it was probable that the stress of the injuries resulting from Stodg-hill’s fall, when superimposed upon the existing arterial hypertension, was a producing cause of Stodghill’s death. This testimony, though strongly rebutted by other testimony and circumstances, constitutes some direct evidence of probative force of the causal connection between the injury and the death. Lucas v. Hartford Ins. & Indemnity Company, supra; Otis Elevator Company v. Wood, supra.

This case is distinguishable from Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.1966); and Parker v. Employers Mutual Liability Insurance Company of Wisconsin, supra. In those cases we held that the medical testimony presented in support of causation amounted to no more than establishing the possibility of a connection which was not equivalent to testimony implicit with probability. This is not a case where the causal connection must be inferred by the jury from their general experience and common sense as in Commercial Standard Fire and Marine Company v. Thornton, 540 S.W.2d 521 (Tex.Civ.App. —Texarkana 1976, writ ref’d n. r. e.), nor is it one where circumstantial evidence was needed in order to establish that it was an on-the-job accidental injury that was the cause of a fatal heart attack as in Baird v. Texas Employers’ Insurance Association, 495 S.W.2d 207 (Tex.1973). Here, there was direct medical testimony of a probable causal relationship between an injury that without dispute happened and a death that without dispute followed. We therefore hold that the Court of Civil Appeals erred in concluding that there was no evidence that Stodghill’s injury was a producing cause of his death.

The usual disposition of a case in which a “no evidence” holding is reversed is to remand the case to the Court of Civil Appeals for consideration of the factual insufficiency points. Stanfield v. O'Boyle, 462 S.W.2d 270, 272 (Tex.1971). During oral argument, petitioners expressly waived their right to have those points considered by the Court of Civil Appeals, and asked us to remand the cause to the trial court for a new trial.

Accordingly, the judgment of the Court of Civil Appeals is reversed and the cause is remanded to the trial court for a new trial.