author: JONES, Justice.

text:
    James R. YOCOM, Commissioner of Labor, etc., Appellant, v. Robert E. GENTRY et al., Appellees. EBONITE COMPANY, Appellant, v. Robert E. GENTRY et al., Appellees.
    Supreme Court of Kentucky.
    March 26, 1976.
    Earl M. Cornett, Gen. Counsel, Dept, of Labor, Frankfort, Cyril E. Shadowen, Asst. Counsel, Louisville, for appellant James R. Yocom.
    John M. Dixon, Jr., Ben S. Fletcher, Turner & Dixon, Hopkinsville, for appellee Robert E. Gentry.
    Thomas L. Ferreri, Thomas E. Turner, Mills, Mitchell, Turner & Donan, Madison-ville, for Ebonite Co.
   JONES, Justice.

This case involves a claim by Robert Gentry for the occupational disease of asbestosis. The Workmen’s Compensation Board found Gentry to be partially and permanently disabled to the extent of 50%. The Board found Gentry was last injuriously exposed to the hazards of the disease during a period of six months or more, while employed by the Ebonite Company. The Board further found that Gentry’s disability had not been conclusively proven to be the result of his last injurious exposure. Gentry was awarded temporary-total disability benefits of $60.00 per week from August 21,1972, through December 1,1972; and $27.00 per week for a period of 400 weeks thereafter. Ebonite was required to pay medical benefits not to exceed $3500.00. All the disability benefits were placed on the Special Fund. The Special Fund filed a petition for reconsideration. It contended that there should have been an apportionment of 60% of the liability assessed against Ebonite. The Special Fund’s petition for reconsideration was overruled.

The Special Fund and Ebonite filed separate appeals in Christian Circuit Court. The trial court sustained the opinion and award of the Board. Both the Special Fund and Ebonite filed separate appeals to this court with joint motions that the appeals be consolidated. The joint motions are sustained. The appeals are consolidated.

The Special Fund contends that the Board erred in finding that it failed conclusively to prove that Gentry’s disability was the result of his last injurious exposure. It contends also that all of the temporary-total benefits awarded Gentry should have been assessed against Ebonite.

Ebonite’s sole contention of error is that Gentry’s claim for permanent disability benefits should be precluded as being premature.

At the time of Gentry’s work-related injury, he was 27 years old, was married and had three children. He had worked for Ebonite three and one-half years as an inspector in the Plastics Department of Ebon-ite, who manufactured bowling balls made from asbestos and fiberglass. Prior to his work at Ebonite, Gentry served in the U.S. Air Force five years. Before that he worked as a grocery clerk.

Gentry became disabled on August 21, 1972, while exposed to asbestos and fiberglass dust. A short time later he was seen and examined by the company doctor, Bennett L. Crowder. Gentry was admitted to the hospital where he remained until September 2, 1972. He was re-admitted September 24,1972, and remained there for one week. A lung biopsy was performed. Dr. Crowder advised Gentry that asbestos and fiberglass were found in both lungs. Gentry returned to work at Ebonite in December 1972, with strict instructions by Dr. Crowder that he wear a face mask. He was placed in another part of the plant, and eventually his services were terminated. He again worked for Ebonite during April and May, 1973. Gentry obtained other employment which he was unable to perform due to his occupational disease. He still experiences chest pains. He has shortness of breath and cannot work at any occupation causing physical exertion.

This court deals first with Ebonite’s contention that Gentry’s claim should be precluded as being premature. There is absolutely no merit to that argument. Ebonite ought to be grateful that the Board failed to place the burden of liability for all of Gentry’s benefits on it. In its zeal to avoid any liability, it argues that Gentry’s present employment at Krogers makes his claim against it premature. The fact that Gentry obtained another job is merely some evidence on the question of the extent of his disability. Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968). That matter was considered by the Board.

As in most cases of this type, the medical evidence is conflicting. This court has held that, “where medical testimony is concerned, and that testimony is conflicting, the question of who to believe is one exclusively for the Board.” Young v. Burgett, Ky., 483 S.W.2d 450 (1972). The Board chose to believe the medical testimony that Gentry contracted the disease by breathing asbestos and fiberglass particles. It further believed Dr. Calhoun’s testimony that the “prognosis indicated a progressive disease, which will shorten Gentry’s life and cause him a considerable amount of disability.” The Board also believed the testimony of Dr. Crowder, the company doctor, who testified that Gentry had asbestosis with functional disability of 40% to the lungs and 20% disability to the body as a whole.

The argument of the Special Fund has merit. In its brief it states:

“Since claimant [Gentry] became disabled in the year 1972 the Special Fund would be obligated to pay the whole award for permanent disability benefits except KRS 342.316(12)(a) provides that the employer liable for compensation — ‘shall be the employer in whose employment the employee was last exposed to the hazard of such occupational disease during a period of six months or more.’ ”

Another provision that imposes liability on the Special Fund is also contained in KRS 342.316(12)(a), which further provides, however, that:

“In those cases where disability or death are not conclusively proven to be the result of such last exposure all compensation shall be paid out of the special fund.”

KRS 342.316(12)(a) then provides that in all cases where the Special Fund is not wholly liable,

“. . . compensation for disability or death due to such diseases shall be paid jointly by the employer and the special fund, and the employer shall be liable for 60 per cent of the compensation due and the special fund shall be liable for 40 per cent of the compensation due.”

Ebonite argues that there is slight exposure to asbestos particles tyy the general public and that any exposure Gentry may have had was not work-related. It contends that Gentry had sufficient multiple exposure under the provisions of KRS 342.-316(12)(a) to relieve it from paying 60% of the award. That is a feeble contention under the circumstances of this case. It is supported only by the testimony of Dr. Anderson, who testified that members of the general public without any work-related industrial exposure, could have asbestos bodies in their lungs. Perhaps that is the reason the Board held that the Special Fund had not met its burden that Gentry’s disability arose solely as a consequence of his employment by Ebonite.

The Special Fund had an insurmountable task to pinpoint the source of an occupational disease where there were hazards of the disease in multiple employment in Gentry’s case. The only significant exposure of Gentry to the hazards of the disease was with Ebonite. Therefore, Ebonite should bear the burden of paying a substantial portion of the award. Both the Board, as well as the trial court, erred in requiring the Special Fund to pay Gentry the total amount.

The judgment of the Christian Circuit Court is reversed with directions to remand the case to the Board for proper apportionment. Ebonite is required to pay Gentry 60% of the award; the Special Fund shall pay 40% of the award.

All concur.


source: Caselaw Access Project

author: HENRY, Justice.

license: Public Domain

text:
    Chris Ray HUNTER, etc., Appellant, E. C. BOWMAN et al., Appellees.
    Supreme Court of Tennessee.
    April 5, 1976.
    John G. Mitchell, Jr., John S. Lansden, Murfreesboro, for appellant.
    William T. Sellers, Smith & Sellers, Mur-freesboro, for appellees.
   OPINION

HENRY, Justice.

The controlling question on this appeal is whether proof may be adduced in open court, as opposed to depositions, upon a review by certiorari of the action of a beer board in revoking a beer permit.

It may.

Section 57 — 209, T.C.A. governs the revocation of beer permits. Among other things, it provides that a review of an order of revocation is “by statutory writ of certio-rari, with a trial de novo as a substitute for an appeal.” It further provides that “[t]he provisions of §§ 27-901 — 27-913 shall be applicable in connection with such review.”

Section 27-911 provides, inter alia:

The hearing shall be on the proof introduced before the board or commission contained in the transcript, and upon such other evidence as either party may desire to introduce; provided, that all proof shall be taken and filed within seventy-five (75) days from the date upon which the transcript was filed (Emphasis supplied).

This provision, having the effect of requiring that proof be taken by deposition, was a part of the Code of 1932 and was adopted by the Legislature without prior legislative sanction. Hoover Motor Exp. Co. v. Railroad & Public Util. Com’n., 195 Tenn. 593, 261 S.W.2d 233 (1953).

In 1932, chancery cases were still being tried on depositions, and this was the “regular”, “usual”, or “ordinary” method and was “according to the forms of chancery.” See, Sec. 556, Gibson’s Suits in Chancery (Fifth Ed.1955). In the ensuing forty-four years civil procedure in Tennessee has undergone a wholesome and revolutionary change.

On January 26, 1970, the Court adopted and transmitted to the General Assembly a new and comprehensive set of Rules of Civil Procedure. These rules were adopted by the General Assembly and became effective January 1, 1971.

The advisory commission, the Court as then constituted, and the General Assembly obviously recognized that trial by deposition was a burden upon the justice system, and a costly and outmoded procedure. Accordingly, Rule 43.01 sounded the death knell of this antiquated practice. It provides:

In all actions at law or in equity the testimony of witnesses shall be taken under oath and orally in open court, except as otherwise provided by these rules, and by T.C.A., Title 24, chapter 9.

We hold that this Rule operates to supersede so much of § 27-911, T.C.A. as provides for taking proof by deposition.

A study of the cases will reveal that the courts have generally ignored this provision and have treated § 27-911, T.C.A. as providing that “the hearing shall be on the proof introduced by the board contained in the transcript and upon such other evidence as either party may desire to introduce”, remaining silent on the ensuing proviso relating to depositions. Cantrell v. DeKalb Co. Beer Board, 213 Tenn. 568, 572, 376 S.W.2d 480, 482 (1964).

Additionally, our courts have defined “trial de novo” as used in § 57-209, T.C.A., to mean that “the cause is tried as if it originated in the circuit or chancery court.” Ewin v. Richardson, 214 Tenn. 628, 382 S.W.2d 532 (1964), citing Cantrell, supra, 376 S.W.2d at 482.

Most assuredly under our present practice and procedure, a trial originating in the circuit or chancery court is tried on oral testimony adduced in open court and not on depositions.

We caution that this decision is not to be construed as a blanket holding that the Tennessee Rules of Civil Procedure will prevail over seemingly inconsistent provisions of statutory law. In this vital procedural area, having no substantive aspects, we simply hold that it is our belief that the Legislature, by the adoption of the Rules, intended to finally and forever abolish trials by deposition except to the limited extent exempted from the application of the Rule. This holding does not prevent trial on depositions by agreement of the parties or pursuant to Rule 43.07.

The judgment of the trial court is reversed and this action is remanded for a trial de novo upon the basis of the record of the testimony before the Beer Board and such other evidence as either party may desire to introduce. This cause will be advanced on the docket and disposed of forthwith.

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

      . Section 24-902, T.C.A. permits depositions in civil cases under certain circumstances, none of which are here applicable. Rule 43.07 Tenn. R.Civ.P., authorizes the Court, on motion, or of its own volition, to order the testimony taken by deposition in certain specified cases, or in such other cases as it may deem proper.


author: HARBISON, Justice.

text:
    FENTRESS COUNTY BANK and Union Bank, Appellants, v. Gene HOLT, Tax Assessor et al., Appellees.
    Supreme Court of Tennessee.
    April 5, 1976.

      Burnett, Ray & Ramsey, Neal & Craven, Jamestown, for appellants.
    John A. Turnbull, Roberts & Turnbull, Livingston, Thomas E. Looney, Swafford & Looney, Crossville, for appellees.
   OPINION

HARBISON, Justice.

These actions were instituted by banking institutions against officials of Fentress County, Tennessee and the City of Jamestown, challenging assessments made on the outstanding capital stock of the banks pursuant to T.C.A. §§ 67-715 et seq. The complaints alleged that the local taxing officials had assessed the tax against the banking institutions, rather than against the individual shareholders, and it was contended that the assessments thus made were unauthorized, illegal and void.

Motions to dismiss were filed by the defending parties upon the ground that the complaints failed to show that existing administrative remedies had been utilized and that the complaints did not allege payment of any of the taxes under protest.

The chancellor sustained the motions to dismiss, and the banks have appealed.

It is conceded in this Court that none of the taxes in question have been paid, under protest or otherwise. Counsel for appellants accordingly have conceded in this Court that the actions may not be maintained against the City of Jamestown. Under present statutes, municipal taxes must either be paid under protest and suit brought for their refund, T.C.A. §§ 67-2303, 2313, or administrative review of the assessment through local and state boards of equalization must be sought. See State v. Delinquent Taxpayers, 526 S.W.2d 453 (Tenn.1975). Accordingly the assignments of error are overruled and the judgment of the chancellor is affirmed insofar as the City of Jamestown and its officials are concerned.

Taxpayers insist that they may proceed, however, against Fentress County and its officials. In the case of Holloway v. Putnam County, Tenn., 534 S.W.2d 292 (1976), this Court noted that the statutory provisions concerning payment under protest and suits for refund, T.C.A. §§ 67-2301 et seq., do not have application to county taxes, as contrasted with state and city taxes. There is contained in T.C.A. § 67-2301 a provision for settlements and adjustments by the county court clerks, but in the Holloway case the Court concluded that this provision

“ . . . is a permissive and alternate administrative remedy but is not mandatory or exclusive.”

Accordingly, in the Holloway case, the Court said:

“We hold that a taxpayer has two remedies for the recovery of county taxes, viz: (1) the administrative procedure provided under § 67-2301, T.C.A. and (2) payment under protest and a common law suit for recovery.”

In that case it was held that if payment is made under protest, suit for refund may be filed within six years since the time limitations contained in T.C.A. §§ 67-2303 and 2313 do not pertain to county taxes.

The Holloway case, of course, dealt only with the recovery of taxes previously paid. In addition to the two remedies referred to in that opinion, an aggrieved taxpayer also has the additional administrative remedy of challenging his assessment before the local board of equalization, with appeal to the state board of equalization, and ultimate judicial review in the courts, before payment of the taxes is required. T.C.A. §§ 67-801 et seq.

In the present case, none of these remedies or procedures has been utilized. Instead the taxpayers have brought a direct action for declaratory judgment in the courts, challenging the validity of their assessments, without either first paying the tax or seeking review of the assessments through the boards of equalization. The question presented is whether an action may be maintained under these circumstances.

Taxpayers place great reliance upon the case of Rosewood, Inc. v. Garner, 476 S.W.2d 273 (Tenn.App.1971), in which the Court of Appeals stated that a taxpayer might seek direct relief from illegal assessments in the courts, rather than going through the boards of equalization. In that case the Court of Appeals stated:

“After a review of the authorities the Chancellor made what we deem to be a proper distinction between this type of complaint pertaining to the right to an exempt status on the one hand, as distinguished from the complaint of the taxpayer that he has been grossly, fraudulently, or intentionally overvalued or discriminated against. In the latter type of complaint, the primary issue is the valuation of the property, and the Board, because of its presumed expertise in valuation, is best qualified to hear and correct any abuse suffered. Whereas, the first type of complaint (assessing exempt property) involves primarily questions of law, with the fact questions being incidental thereto, and renders the court the proper tribunal to hear and correct these abuses which are challenged as void assessments.” 476 S.W.2d at 276.

It should be noted, however, that in the Rosewood case the taxpayer had in fact paid the taxes under protest, and the suit was brought to recover these and to seek an injunction against future taxation. This sharply distinguishes that case from the case at bar, where no payment under protest has been made.

Because of the absence of such payment, the Rosewood decision is not authority for the position now being taken by the taxpayers. Nor does the case of Oak Ridge Hospital v. City of Oak Ridge, 57 Tenn.App. 487, 420 S.W.2d 583 (1967), cited in Rosewood, support them, since in that case the taxpayer had been through the local board of equalization and the state board of equalization and, in addition, had paid the taxes under protest before filing suit for refund.

There are, however, some earlier cases in this state indicating that a taxpayer need not pay under protest in order to obtain a determination as to the legality of an assessment. Probably the leading case permitting such an action was Nashville Labor Temple v. Nashville, 146 Tenn. 429, 243 S.W. 78 (1921). That case and several others involved city taxes, and the procedure permitted there is no longer available, since present statutes governing city taxes do require payment under protest.

In the case of University of the South v. Franklin County, 506 S.W.2d 779 (Tenn. App.1973), a declaratory judgment was utilized, apparently without payment of county taxes and without exhaustion of administrative remedies, although the State Board of Equalization was permitted to intervene in the case in the trial court. In a concurring opinion on petition to rehear, one member of the Court of Appeals pointed out the irregular procedure which had been followed, but noted that this had not been assigned as error or argued on appeal.

Likewise, in the recent case of Metropolitan Government of Nashville and Davidson County v. Schatten Cypress Company, 530 S.W.2d 277 (Tenn.1975), the taxpayer filed a direct action in the chancery court challenging the legality of its assessment. No procedural issues were raised in the case, however, and the issue of whether the taxpayer should have paid the taxes under protest before filing suit was not discussed.

It appears that there has been some ambiguity or uncertainty in the case law, insofar as procedural requirements are concerned, as to when a taxpayer may file a direct action challenging the legality of his assessment. We are of the opinion that it is proper to require the taxpayer to pay his county taxes under protest before being permitted to file such direct action in the courts to recover them or to challenge the legality of his assessment.

We believe that the Rosewood decision is a sound one, and that a taxpayer ought not to be required in all cases to go through boards of equalization or other administrative procedures in order to raise strictly legal issues. He may go through these agencies, of course, without first paying his taxes. He should, however, be permitted access to the courts to raise purely legal questions, but only after he has first paid the taxes under protest.

Accordingly, any earlier cases in this state, which may have permitted direct suits against county taxing authorities without first requiring payment of the taxes under protest, are now modified. A county taxpayer may follow the procedure approved in Rosewood, supra, pay his county taxes, and file suit to recover them, when he only seeks to present legal questions as to the validity of his assessment; or he may go through the equalization boards, challenging any aspect of his assessment, without first paying the disputed taxes.

He may not, however, have access to the courts without first pursuing one or the other of these courses of procedure.

The judgment of the chancellor, dismissing the suits of taxpayers who followed neither of these procedures, is affirmed, at the cost of appellants.

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

      . Since the taxpayers here did not follow either procedure, we need not determine, nor do we attempt to decide, whether the allegations of their complaints sufficiently assert a purely legal issue so as to fall within the purview of Rosewood. Taxpayers do not challenge the legality of the tax or the liability of the banks to pay it under T.C.A. § 67-727, so that it is possible that they would have to resort to an administrative remedy in all events to obtain any relief.


text:
    WOOTEN TRANSPORTS, INC., et al., Appellants, v. Sarah Marie HUNTER et al., Appellees.
    Supreme Court of Tennessee.
    April 5, 1976.

      John P. Branham, Howell & Fisher, Nashville, for appellants.
    Michael R. Jones, Sprouse, Long & Walton, J. Travis Price, Springfield, for appel-lees.
   OPINION

HENRY, Justice.

This is a suit for death benefits under the Tennessee Workmen’s Compensation Law. The employer defended upon the grounds (1) that the deceased workman was an independent contractor and (2) that his death was brought about by his own voluntary intoxication. The trial judge found the issues in favor of the employee and awarded the statutory benefits. The employer has perfected its appeal.

I.

The employer, Wooten Transports, Inc. is based in Nashville and is engaged in the delivery of gasoline and petroleum products in Tennessee and Kentucky. On 13 August 1973, the deceased, Jimmy W. Hunter, entered into a written agreement with Wooten for the lease of a tractor for use in pulling a tanker trailer owned by Wooten and used in connection with its deliveries. On 23 October 1973, he was fatally injured under circumstances more fully discussed hereinafter. Under the terms of the written agreement it was Hunter’s responsibility to equip and maintain the tractor and pay all expenses in connection therewith to include operating expenses, taxes and fees. As compensation he received a stated percentage of the gross revenue earned by the use of the tractor. He had the option of driving the leased equipment himself or of employing a driver with appropriate adjustments in payments.

Paragraph 4a provides in part as follows:

Notwithstanding any other provision contained herein, it is agreed that the leased equipment shall at all times during the term of this lease be operated by Lessee’s exclusive direction and control .

Paragraph 4g provides as follows:

The Lessee shall at all times have the sole right to select the driver who is to operate the leased equipment described herein, including the right to discharge said driver when and if such action is believed to be advisable, in the discretion of the Lessee. The driver of the leased equipment shall be the employee of Lessee, and subject to its exclusive direction and control at all times during the term of this lease. In the event the Lessee determines that a driver is unsatisfactory for any reason, it shall have the right immediately to terminate the services of such employee, whether he be the owner of the leased equipment, or not. (Emphasis supplied).

Thus it will be seen that the parties contracted that the leased equipment would be operated under Wooten’s exclusive direction and control; that Wooten had the sole right to select the driver; that Wooten had the right to discharge the driver and that the driver would be Wooten’s employee. This alone tends to establish a master-servant relationship; however, there are other circumstances which further support the trial judge in determining that Hunter was an employee as opposed to an independent contractor. Among these is the fact that a decal was placed on the tractor reading “Wooten Transports, Inc.” along with the appropriate ICC numbers. Similar identification appeared upon the tanker trailer. The proof fairly shows that Hunter was employed on a full-time basis. Prior to his employment he was required to undergo a training period and to take a physical examination. Wooten had other employees who did not own their equipment but it is apparent from the record that they had substantially the same working hours, worked under the same conditions and were governed by the same policies.

It is true that there was no deduction from Hunter’s wages for Social Security, income taxes, and that Workmen’s Compensation was not paid upon him, and that he did not appear as an employee upon their payroll; however, we do not consider these matters to be of controlling significance.

Our review of the record leads us to the conclusion that there is ample material evidence to support the trial judge’s conclusion that there was an employer-employee status. Moreover, in making this determination, it is our duty to give the act a liberal construction in favor of the fact that one is an employee rather than a strict construction holding him to be an independent contractor. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43 (1956).

We recognize, of course, that there is no fixed and rigid formula by which these matters are to be determined and that each case must be decided on the basis of its own peculiar facts and circumstances; however, running through all of the cases is the notion that the right of control is the vital test, the controlling consideration or the decisive fact, and the question is not whether the right was exercised but whether it existed. Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323 (1950).

After reciting this general proposition the Court in Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41 (1959), points out that “[t]he fact that neither social security tax nor withholding tax was deducted is not a controlling factor.” 205 Tenn. at 471, 327 S.W.2d at 44.

Additionally, the clear rule has evolved that one of the controlling considerations is the right of termination. This rule of law is recognized in Curtis v. Hamilton Block Co., 225 Tenn. 275, 466 S.W.2d 220 (1971), a case where the factual situation is somewhat analogous to the case under consideration.

Based on the record before us and these controlling principles of law, we hold that the deceased workman was an employee of Wooten Transports, Inc.

II.-

The second insistence of the appellee is that Hunter’s death occurred as a result of his intoxication at the time of his fatal accident.

On 23 October 1973, Hunter was dispatched to deliver a load of gasoline to a filling station in Auburn, Kentucky. Upon the completion of his delivery and at about 6:00 p. m., he left Auburn enroute to his home in Springfield, Tennessee where he lived, and, with the knowledge and acquiescence of Wooten, kept his rig. The fatal accident occurred on U.S. Highway 41 inside the city limits of Springfield. It is not necessary that we detail all of the facts. Suffice it to say that as he was proceeding southwardly, an automobile pulled out into his pathway and either because of his speed, or his inattention, or his intoxication, or some other act of negligence, or because of the sudden emergency precipitated by the driver of another automobile pulling onto the highway in front of him, he crossed the highway and struck another tractor-trailer rig, after having skidded some 266 feet. The record shows that there was no traffic proceeding in either direction which would have kept him from pulling around the vehicle in his pathway. This vehicle remained in the extreme right southbound lane of a five-lane highway and unquestionably, he could have pulled around. Why he did not do so is not shown in the record. We may not speculate or conjecture as to the cause of the accident.

It will be borne in mind that this is not a conventional tort action or damage suit based upon a collision of vehicles, and the fact that Hunter may have been guilty of negligence does not operate to bar the payment of death benefits under the Workmen’s Compensation Law. Poe v. E.I. DuPont DeNemours & Co., 224 Tenn. 683, 462 S.W.2d 480 (1970). The record reflects without contradiction that a pint whiskey bottle with one third to one half missing was found in the cab of his truck after the accident and that a blood test was taken, showing that the blood contained ethyl aleo-hoi in the amount of 0.10 per cent, or 100 miligrams per cent. The deposition of Dr. Jerry T. Francisco, Chief Medical Examiner for the State of Tennessee was taken and filed in this cause. Dr. Francisco testified, among other things, that this percentage of alcohol in the bloodstream would operate to affect a person’s response in a given situation; that that response would be prolonged and that the ability to judge a given situation and respond to it would be altered and affected and the individual would lose the capacity to make appropriate judgments in any given situation.

We accept this testimony at face value. The difficulty is that there is no direct proof that intoxication was the proximate cause of this accident. There is proof from which it might be inferred, but there is also proof from which it might be inferred that the proximate cause was the entry of the automobile onto the highway in the pathway of Hunter’s vehicle. There is material evidence from which the trial judge might have made either finding.

Section 50-910 T.C.A. reads as follows:

Injuries not covered. — No compensation shall be allowed for an injury or death due to the employee’s willful misconduct or intentional self-inflicted injury, or due to intoxication, or willful failure or refusal to use a safety appliance or perform a duty required by law. If the employer defends on the ground that the injury arose in any or all of the above stated ways, the burden of proof shall be on the employer to establish such defense. (Emphasis supplied).

Under the facts and circumstances of this case, we cannot hold that the employer has carried its requisite burden of proof.

This Court does not re-weigh the evidence, and if the findings of the trial judge are supported by inferences which may reasonably be drawn from the evidence, this Court will not disturb those findings, although the evidence may be reasonably susceptible of other or different inferences. Sudduth v. Williams, 517 S.W.2d 520 (Tenn.1974). This Court has consistently held that it will sustain the trial judge even where the preponderance is against his findings if they are supported by material evidence. Strader v. United Family Life Ins. Co., 218 Tenn. 411, 403 S.W.2d 765 (1966). Additionally, the Workmen’s Compensation Act contemplates liberality, not only in the admission of evidence but also in the inferences to be drawn therefrom, and in borderline cases, the Court will endeavor to carry out the benevolent objects of the act and resolve doubt in favor of the claimant. Imperial Shirt Corp. v. Jenkins, 217 Tenn. 602, 399 S.W.2d 757 (1966).

The judgment of the trial court is

Affirmed.

FONES, C. J., BROCK and HARBISON, JJ., and LEECH, Special Justice, concur.


author: BROCK, Justice.

text:
    Johnnie Lou HOLLEY, Appellant, v. Nana Lou Reeves MARKS, Appellee.
    Supreme Court of Tennessee.
    April 5, 1976.

      Jack B. Henry, Pulaski, for appellant.
    David E. Cheatham, Pulaski, for appellee.
   OPINION

BROCK, Justice.

The plaintiff in this case, Johnnie Lou Holley, has a contingent remainder interest in the estate of Adlay Marks, who died on February 10, 1974. In his will, Marks left his entire estate to his wife, Nannie L. Marks, defendant, for her life, to be used “as she sees fit.” Whatever remains at the death of Mrs. Marks is given by the will to Johnnie Lou Holley if she survive the life tenant. The only relief sought is that the plaintiff be allowed periodically to inspect the defendant’s records to determine if she is exceeding her rights in the property by giving it away.

Testamentary gifts for the use of a life tenant “as he sees fit” have been construed as conveying a life estate with power to dispose of the corpus at least to the extent necessary to provide support and maintenance to the donee. Redman v. Evans, 184 Tenn. 404, 199 S.W.2d 115 (1947); Jones v. Jones, 225 Tenn. 12, 462 S.W.2d 872 (1971). But the donee does not have the right to make a gift of the property. Black v. Pettigrew, 38 Tenn.App. 1, 270 S.W.2d 196 (1953).

Even though a life tenant has been called a quasi trustee for the remain-dermen, Morrow v. Person, 195 Tenn. 370, 259 S.W.2d 665 (1953), he has no duty to account for his use of the property. Vaden v. Vaden, 38 Tenn. 444 (1858). Security may be required, or in a proper case an equitable remedy may be granted, to prevent the life tenant from wrongfully defeating the remainder interest. Henderson v. Vaulx, 18 Tenn. 30 (1836). But the complainant who cannot demonstrate to the court’s satisfaction that there is real danger of destruction of the estate is entitled to no relief. Downing v. Johnson, 45 Tenn. 229 (1867). In this record there is neither allegation nor proof that the defendant is dealing with the property in any manner not authorized by the will. Hence, no showing is made to justify the relief sought. The Chancellor was, therefore, correct in dismissing the complaint. Costs incurred in this Court will be borne by the plaintiff, Johnnie Lou Holley.

FONES, C. J., and COOPER and HARBI-SON, JJ., concur.

HENRY, J., not participating.


author: COOPER, Justice.

text:
    Reese L. SMITH, Jr., and Howard E. Johnston, d/b/a Indian Springs, Appellants, v. CHRIS-MORE, INC., a Tennessee Corporation, Appellee.
    Supreme Court of Tennessee.
    April 12, 1976.
    Gail P. Pigg, Nashville, for appellants.
    F. Clay Bailey, Jr., Dearborn & Ewing, Nashville, for appellee.
   OPINION

COOPER, Justice.

This is a discretionary appeal from an order of the Chancery Court of Williamson County overruling appellants’ motion to dismiss the complaint in this case. The issue before this court is whether the oath to a complaint filed to enforce a materialman’s lien by attachment may be made by the lienholder’s attorney.

Chris-More, Inc., appellee, alleged in its complaint that it had furnished plumbing supplies for the improvement of real property owned by the appellants, Reese L. Smith, Jr., and Howard E. Johnston, d/b/a Indian Springs, a partnership, and that the sum of $8,026.77 was due in payment for the supplies. Appellee further alleged that it had filed a timely notice of lien in the office of the Register of Williamson County and that a copy of the notice had been served on Smith and Johnston. The complaint was signed and sworn to by the attorney for appellee.

A materialman’s lien exists only by virtue of the provisions of the lien statutes and in order to establish such a lien these provisions must be strictly followed. Hamilton National Bank v. Long, 189 Tenn. 562, 226 S.W.2d 293 (1949); McDonnell v. Amo, 162 Tenn. 36, 34 S.W.2d 212 (1931).

The statutory procedure for enforcement of a materialman’s lien is set forth in T.C.A. 64-1126, which provides in relevant part as follows:

“Liens under §§ 64-1101 — 64-1142 shall be enforced by attachment only, in manner following:
(1) Where the plaintiff or complainant lienor has a contract with the owner, the lien shall be enforced by attachment upon petition at law or bill in equity, filed under oath, setting forth the facts, describing the property, and making the necessary parties defendant; or before a justice of the peace, where the amount of the claim is within his jurisdiction, the affidavit for the writ to contain such recitals.
(2) Where there is no such contract, by attachment in a court of law or equity in like manner; or before a justice of the peace, having jurisdiction, based upon like affidavit . . . ” [Emphasis added.]

Appellants insist that the requirement that the complaint to enforce a mate-rialman’s lien be “filed under oath” must be construed to require that the complaint be “filed under oath [by the lienholder]” and no one else. We see no merit in this insistence. T.C.A. 6A-1126 provides that the enforcement of a materialman’s lien “shall be ... by attachment only,” on a complaint “filed under oath.” There is no specific directive as to who will make the oath to the complaint. However, the complaint “filed under oath” in a suit to enforce a lien is equivalent to the affidavit required •in an original or ancillary attachment proceeding. See De Soto Lumber Co. v. Loeb, 110 Tenn. 251, 75 S.W. 1043 (1903). And, in the latter proceeding, “[i]n order to obtain an attachment, the plaintiff, his agent or attorney, shall make oath in writing, stating the nature and amount of the debt or demand, and that it is a just claim . . ” [Emphasis added.] T.C.A. 23-613. We know of no logical reason why the lienholder’s attorney should not be permitted to make the affidavit in support of an attachment to enforce a materialman’s lien as is the attorney for a party in a general attachment proceeding, provided the attorney possesses the requisite knowledge to support the oath. And, in the absence of a specific statutory directive limiting the making of the oath to the lienholder, we decline to do so.

The action of the chancellor overruling the motion to dismiss is sustained. Costs incident to the appeal are adjudged against the appellants and their surety.

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


text:
    Nancy Louise Evans HOBBS, Plaintiff-Appellant, v. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Defendant-Appellee.
    Court of Appeals of Tennessee, Eastern Section.
    July 23, 1975.
    Certiorari Denied by Supreme Court Nov. 3, 1975.

      Anna F. Hinds, of Stone & Hinds, Knoxville, for plaintiff-appellant.
    Wheeler A. Rosenbalm, Knoxville, for defendant-appellee.
    W. P. PURYEAR, Special Judge.
   OPINION

For the sake of convenience in writing this opinion we will refer to the parties as plaintiff and defendant as they were designated in the trial Court.

Plaintiff sued to recover an accidental death benefit of $24,000.00 under a certain group insurance policy issued by defendant and covering a group of participating employees of the State of Tennessee. Plaintiff’s husband, Jess L. Hobbs, was a member of the group covered by such policy and plaintiff was designated as his beneficiary in the event of accidental death.

The insured, Jess L. Hobbs, died within approximately an hour after the automobile which he was driving crashed into the rear end of another automobile being operated by one Kenneth George McNutt while the McNutt automobile was stopped in the inside lane of Kingston Pike preparing to make a left turn on to Mabry Hood Road. Kingston Pike is a four-lane thoroughfare and the point where this collision occurred is in Knox County, Tennessee.

The case was tried before the Circuit Judge and a jury as a result of which trial the jury found in favor of defendant and the suit was dismissed. After a motion for new trial was filed and overruled, this appeal in error resulted.

The first assignment of error arises out of the sole ultimate issue submitted to the jury, that issue being whether or not the insured died as a result of bodily injuries accidentally sustained in the aforementioned collision, so as to be within the provision of the insurance policy.

In this assignment plaintiff insists the trial Judge incorrectly charged the jury as follows:

“Now what is an accident? Well, an accident is a happening that is not expected or foreseen or intended, Webster’s New World Dictionary. More important than that, we have a definition in law of the State of Tennessee.
Members of the jury, you have heard all of the proof in this case and, of course, it is for you to say what the proof shows. But if you believe from a preponderance of the evidence that the deceased, Jess L. Hobbs, voluntarily and intentionally did a thing — as I just defined it to you awhile ago, such as driving the automobile on this occasion in a state of intoxication— resulting in an occurrence from which he suffered injuries and died, which a reasonable man would foresee or should have foreseen that death or injury might result therefrom, if you conclude that, then under the law of the State of Tennessee in cases of this kind such death or injury was not an accident within the meaning of the law.” (B. of E. pp. Ill, 112)

This instruction was obviously included in the trial Judge’s charge because of evidence in the record which showed that, at the time of the collision, Hobbs was driving his automobile while in a heavily intoxicated condition.

Shortly after Hobbs died a blood sample was taken from his body and tested in a toxicological laboratory to determine the concentration of alcohol. According to the result of this test the blood-alcohol level was found to be .40% and there is expert testimony in the record to the effect that a person with this level of alcohol in his blood is heavily intoxicated and incompetent to operate a motor vehicle.

There is also some expert testimony in the record to the effect that such a high level of alcohol in the blood could possibly cause death.

This instruction of which plaintiff complains, is an accurate statement of what has come to be known among lawyers and judges in this State as the Distretti rule, this rule having evolved from the case of Mutual Life Insurance Company of New York v. Distretti (1928), 159 Tenn. 138, 17 S.W.2d 11, and subsequently applied in several other Tennessee cases.

We can certainly assume that the danger of injury or death as result of operating a motor vehicle while intoxicated is a foreseeable one and the appellate courts of this State have repeatedly held that death is not caused by accidental means, within the meaning of an insurance policy, if it is a foreseeable result of a voluntary and unnecessary act or course of conduct of the insured. Mutual Life Insurance v. Distretti, supra; Baker v. National Life and Accident Insurance Company (1956), 201 Tenn. 247, 298 S.W.2d 715; Falster v. Travelers Insurance Company (1964), 216 Tenn. 137, 390 S.W.2d 673; Nicholas v. Provident Life and Accident Insurance Company (1970), 61 Tenn.App. 633, 457 S.W.2d 536.

However, plaintiff insists that the Distretti rule does not apply to the instant case and cites Miller v. American Casualty Company (6 Cir., 1967), 377 F.2d 479, which was a suit for accidental death benefit under an insurance policy.

In that case the insured was killed as a result of operating his automobile at high speed and while he was under the influence of alcohol. The suit was tried in U. S. District Court for the Western District of Tennessee, Western Division, which trial resulted in judgment against the insurer. The insurer appealed and the Sixth Circuit Court of Appeals affirmed.

In a rather brief per curiam opinion the Sixth Circuit Court said:

“Appellant’s second defense is more complicated. It is based upon the claim that Mr. Miller suffered no ‘accidental bodily injury.’ The reasoning on this issue starts with the fact that on autopsy, Miller was found to have .24 alcohol in his bloodstream at the time of death. This, of course, is well past the point of intoxication. Appellant argues that for Miller to have consumed enough alcohol to have the autopsy showing referred to, and then to have driven a car at high speed, was conduct which any reasonable man would know might lead to his death. From this appellant reasons that such a risk was outside the contemplation of the policy because the means of death (drinking and high speed driving) were voluntarily assumed.
Judge Brown disagreed with this defense and so do we. The policy could have excluded injuries due to drinking or intoxication on the part of the insured (See T.C.A. § 56-3309(11); § 56-3306(5)). It had no such exclusion. Doubtless such an exclusion would considerably affect the salability of appellant’s insurance policies. We see no mandate in law or public policy for this court to imply such an exclusion when none such was agreed on by the parties when the insurance contract was signed.” (Supra, p. 480)

It appears to us that the Sixth Circuit Court of Appeals did not give thorough consideration to Mutual Life Insurance Company v. Distretti and Falster v. Travelers Insurance Company and overlooked Baker v. National Life and Accident Insurance Company in arriving at its conclusions in the Miller case.

It is significant that Nicholas v. Provident Life and Accident Insurance Company, supra, was decided by the Middle Section of the Tennessee Court of Appeals and certio-rari denied by the Supreme Court after Miller was decided by the Sixth Circuit Court of Appeals.

The Distretti rule has long been established in Tennessee jurisprudence and has not been overruled by our Supreme Court, therefore, we are bound by it and the rule is applicable to the instant case.

Plaintiffs counsel also argues that if death caused by the insured operating a motor vehicle while intoxicated was not accidental within the meaning of the policy, a specific exclusion to that effect should have been written into the contract of insurance. However, we think that from the Tennessee cases which are heretofore cited in this opinion, it is clear that death which results from such action on the part of an insured is not accidental and hence no exclusionary clause is necessary.

The first assignment of error is respectfully overruled.

In the first part of the second assignment plaintiff insists it was error for the trial Court to instruct the jury that the burden of proof was upon plaintiff “from beginning to the end of the trial” and argues that the death certificate, which was introduced in evidence, constitutes prima facie evidence of death resulting from accident and, hence, the burden of proof shifted to defendant to rebut this prima facie evidence.

Plaintiff relies upon T.C.A. Section 53-413, which provides that such death certificate “shall be prima facie evidence of the facts therein stated.”

Under Part 1(a) of the death certificate the immediate cause of death is shown as “unknown.”

Part II of this certificate contains the following printed language: “Other significant conditions; conditions contributing to death but not related to cause given in Part 1(a)”. Under this language there appears the typewritten word “accident”.

If this certificate is construed in a manner most favorable to the insured, we are of the opinion that it only shows the cause of death was unknown to the physician who signed it, namely, Doctor Fred M. Furr.

Moreover, it cannot be inferred that Doctor Furr used the word “accident” in this certificate in the technical sense that it is used for the purpose of determining whether the death under investigation was one which was to be considered for determination of liability or non-liability under the accidental death benefit clause of an insurance policy.

It is conceded by defendant that Hobbs was involved in a collision between two automobiles shortly before his death. Such collisions are usually referred to as “accidents” by non-lawyers.

Therefore, the word “accident” as it was used in the certificate does not constitute prima facie evidence that death was accidental within the meaning of the contract upon which this suit is predicated.

Even if the instruction was erroneous, and we do not think it was, it does not appear that it affected the result of trial.

Pursuant to our harmless error statute (T.C.A. 27-117) it has been held that no reversal should be granted on an error in the trial Court’s charge to the jury unless it shall affirmatively appear that such error affected the result of trial.

In the latter part of this assignment plaintiff insists that the trial Court erroneously refused to charge certain special requests. This portion of the assignment fails to comply with Rule 12(d)4 of this Court since such requests are not set forth in the assignment itself or in any part of plaintiff’s brief and argument.

We might add, however, that plaintiff’s counsel makes reference in the assignment to certain pages in the bill of exceptions and we have examined the three requests appearing upon those pages of the bill of exceptions to which reference is made and we are of the opinion that it was not reversible error to refuse such requests.

Although some portions of these requests do contain accurate statements of the law, the first and third requests are not applica-. ble to this case.

Also, the second request is not a completely accurate statement of the law applicable to this case. See Morton v. Martin Aviation Corp. (1959), 205 Tenn. 41, 325 S.W.2d 524; Morris v. Bolling (1948), 31 Tenn.App. 577, 218 S.W.2d 754; Luckey v. Gowan (1959), 46 Tenn.App. 392, 330 S.W.2d 45.

The second assignment of error is respectfully overruled.

In the third and last assignment plaintiff insists it was error for the trial Court to admit into evidence, over her objection, a toxicological report and testimony based thereon showing a blood-alcohol level of .40% in the body of insured.

Plaintiff’s counsel argues that this evidence was not admissible because there is no evidence showing continuity of control over the blood sample from the time it was taken from the body until it was delivered to an analyst for examination and testing at the University of Tennessee Medical Research Laboratory.

We do not find any merit in this argument but even if it did have some merit in it, the plaintiff cannot rely upon this alleged error for reversal.

Appended to the death certificate introduced by plaintiff is a report which shows the blood-alcohol level in the insured’s body to be .40%. This official record constituted competent evidence of the facts and matters therein contained and, therefore, any evidence of the blood analysis thereafter introduced without laying proper predicate therefor would be harmless error.

However, with reference to this matter, evidence in the record is as follows:

The blood sample was taken upon written request of State Trooper Edward Brock, who was investigating the death of insured. Doctor Fred Carr removed the blood sample from insured’s body and this was observed by Trooper Brock, who forthwith took the sample to the Clinical Laboratory at Uni■versity of Tennessee Hospital.

Trooper Brock’s testimony on this procedure is as follows:

“Q. After you filled out this request you observed Dr. Fred Carr take this blood sample, didn’t you, Officer Brock?
A. Yes, sir.
Q. And he immediately handed it to you?
A. Yes, sir.
Q. In a container or vial that they take this in?
A. Yes, sir.
Q. And, consistent with the practice and procedure that you followed then, you went over to the UT Hospital Laboratory, didn’t you?
A. Yes, sir.
Q. And you filled out over there a request for chemical analysis of this blood sample, didn’t you, Officer?
A. Yes, sir.
Q. And that is a good, accurate copy of that request that I handed you there, isn’t it?
A. Yes, sir.
Q. You filled out, so there won’t be any misunderstanding, you filled out the top part above where it says ‘For use of laboratory only’?
A. Yes, sir.
Q. I will ask you, Officer, to make that Exhibit Number Six to your testimony?
MR. SUMMERS: I object to this particular witness introducing this because it is not within his control. It is not a record that he controls.
MR. ROSENBALM: He has testified, Your Honor, that it is a true and correct copy of what he filled out.
THE COURT: Is that what you filled out, a copy of it; do you recognize it?
A. Yes, sir.
THE COURT: Exhibit Six (EXHIBIT NUMBER SIX WAS MARKED AND FILED)
Q. Officer Brock, after you filled out that request marked as Exhibit Six you attached it to that blood sample that you left there at the laboratory at UT, didn’t you?
A. Yes, sir.
Q. And you also marked on the blood sample container that this was a blood sample of the blood of Jess L. Hobbs?
A. No, sir, I just take that with the vial, or whatever you want to call it, tube, whatever you want to call it.
Q. So you attached Exhibit Number Six to the vial?
A. Yes, sir.
Q. I believe you indicated that this was the practice and procedure that the Tennessee Highway Patrol followed on that occasion?
A. Yes, sir, at that time.” (B. of E. pp. 45, 46, 47)

On the morning following delivery of the sample to the laboratory Clayton Klemann, a toxicologist employed by the State of Tennessee at University of Tennessee Hospital, removed this sample from the refrigerator at the laboratory.

Mr. Klemann testified as follows:

“Q. Where did you obtain the blood sample that you made the analysis of?
A. The specimen and the request sheet were picked up in the clinical chemistry lab. at U. T. Hospital. It had been left there in the refrigerator of the clinical chemistry lab. the previous evening.
Q. When did it come into your possession?
A. At 8:00 o’clock in the morning on March 8, 1973.
Q. You mentioned that it was accompanied by something and what was that?
A. The analysis request form.
Q. Let me show you this document that has previously been introduced as Exhibit Number Six and ask you if that is the request for chemical analysis form that you are now referring to?
A. Yes, sir, it is.
Q. And it was with the blood alcohol sample?
A. Yes, sir.
Q. Did I ask you when you picked that up that morning, I believe on March 8, 1973?
A. Yes, it was 8:00 o’clock in the morning.
Q. And what disposition do you make of the blood sample at that time?
A. Could you rephrase the question, I don’t quite understand? What was the results of the test?
Q. Yes, when did you make the test?
A. The test was performed the following day, March 9, 1973, at 10:10 in the morning.
Q. What did you do with the sample in the meantime?
A. It was stored in our refrigerator in the toxicology lab. It was refrigerated for the period of time that I didn’t analyze it.
Q. Why did you do that?
A. To preserve the specimen, it is a biological specimen.
Q. And then you made your test I believe you said on March 9, 1973?
A. Yes, sir.
Q. What results did you obtain?
A. The results of the alcohol analysis was 0.40% ethyl alcohol.” (B. of E. pp. 89-90)

In our opinion, this evidence laid a proper ' predicate for introduction of the toxicological report and testimony based thereon.

The third assignment of error is respectfully overruled.

All the assignments having been considered and overruled, the judgment of the trial Court is affirmed and costs of this appeal will be taxed against plaintiff and the sureties on her appeal bond.

SANDERS and GODDARD, JJ., concur.


author: GUPTON, Judge.

text:
    Robert RASBERRY, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 50927.
    Court of Criminal Appeals of Texas.
    April 28, 1976.
    Jim Ammerman, Marshall, for appellant.
    Sam Baxter, Dist. Atty., Marshall, Jim D. Yollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

GUPTON, Judge.

The offense is robbery with firearms; the punishment, 99 years.

The sufficiency of the evidence is not challenged. The record reveals that two men took about $86 from the owner of a motel in Marshall.

Appellant’s first ground of error alleges the prosecutor made inflammatory and improper jury argument. The court sustained the objection to the argument and instructed the jury to disregard it. Counsel then asked the prosecutor to restrain himself, but did not ask for any further relief. Thus, appellant has received all the relief he asked for, and nothing is presented for review. Kennedy v. State, Tex.Cr.App., 520 S.W.2d 776; Stone v. State, Tex.Cr.App., 510 S.W.2d 612; Satterwhite v. State, Tex.Cr.App., 499 S.W.2d 314.

Appellant’s second ground of error contends the following portion of the jury argument was unsworn testimony of the prosecutor:

“Mr. Harris told you, T will never forget the face of the man’. I want you to look at Mr. Rasberry. Imagine him with a gun in his hand. Do you think you would ever forget the face of a man that pulled a gun on you and robbed you? What’s more, the other individual, he didn’t forget that man’s face either. He identified him from a photograph, same book, he was informed his name was Herbert Lee Ward, and we do know that the fingerprint lifted came back, did not identify Robert Rasberry, but did identify one of the two that was named in the charge— [DEFENSE COUNSEL]: Your Honor! The court excluded that testimony — we think counsel is dead wrong in trying to mis-state the testimony to the court. And we ask that he be stopped at this time, and the jury not be told narratives — they can draw their own conclusions.
[PROSECUTOR]: Your Honor, it was my understanding that the court did not exclude that, and that question was asked and [defense counsel’s] objection was overruled.
THE COURT: The objection of counsel is overruled. Go ahead!”

Appellant contends this was error because the evidence showed only that a fingerprint on the change box at the motel was not that of appellant, but did not show whose fingerprint it was. This was a critical fact since the complainant stated he had seen only appellant touch the cash box.

Appellant raised the issue of the fingerprint in his cross examination of a detective sergeant with the Marshall Police Department. The police officer was not a fingerprint expert, and did not identify the fingerprint. He did state that he had received a report from the Identification Division of the Texas Department of Public Safety and that he had not received anything showing the fingerprint was appellant’s. Over objection, the witness stated on re-direct that the report named one of the two suspects, but not appellant. Herbert Lee Ward had been identified by the complainant and the police officer as the other man involved in the robbery.

The prosecutor’s remarks were a reasonable deduction from the evidence and did not constitute unsworn testimony. Pecina v. State, Tex.Cr.App., 516 S.W.2d 401; Jackson v. State, Tex.Cr.App., 516 S.W.2d 167; Cleveland v. State, Tex.Cr.App., 508 S.W.2d 829.

Appellant’s third ground of error asserts the allegation in the indictment that appellant put the complainant “in fear of life and bodily injury” was not proved by the evidence. Appellant contends this was an “amiable armed robbery” as shown by the complainant’s statements that no verbal threats were made and he was not fearful for his life at any time during the robbery.

The indictment alleged a taking “by the said assault, and by violence to the said injured party and by putting the said injured party in fear of life and bodily injury by then and there using and exhibiting a fire arm, to-wit, a pistol . . . ” Proof of any one or all of these ways constitutes robbery. Peebles v. State, 138 Tex. Cr.R. 55, 134 S.W.2d 298. The evidence is undisputed that two men entered a motel carrying a .22 caliber pistol and said “this is a holdup”. Money and complainant’s wrist watch were taken. A shot was fired as complainant was running away from the motel. The evidence is sufficient to constitute an assault. Mason v. State, Tex.Cr. App., 472 S.W.2d 787. This being so, the evidence is sufficient to support a conviction for robbery by assault with a firearm as alleged in the indictment.

Appellant’s last ground of error which he terms “cumulative unfairness” seems to be directed to the incompetency of the appellant to act pro se in his own behalf. The brief states that against appointed counsel’s advice the appellant insisted on questioning witnesses, making argument to the jury and making closing argument on punishment, during which he did such unwise things as accusing the chief deputy sheriff of being a crook.

The only possible answer to this contention is that if we reversed only because of appellant’s conduct during the trial, at the next trial the same conduct would in all probability occur again and this conviction could never become final. Though the appellant has the constitutional right to represent himself, if he so desires, he has no right to ask for a reversal because he alienated the jury while doing so. See Webb v. State, Tex.Cr.App., 533 S.W.2d 780 (decided February 25, 1976); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) at footnote 46.

In a supplemental pro se brief appellant contends the testimony of officer Hays impermissibly bolstered the testimony of the complaining witness Harris. No objection was made at trial to this testimony, thus nothing is presented for review. Arivette v. State, Tex.Cr.App., 513 S.W.2d 857; Hoffman v. State, Tex.Cr.App., 514 S.W.2d 248; Johnson v. State, Tex.Cr.App., 504 S.W.2d 493. Appellant’s pretrial motion in limine did not preserve error in the absence of an objection at trial. Simpson v. State, Tex.Cr.App., 507 S.W.2d 530. Cf. Riojas v. State, Tex.Cr.App., 530 S.W.2d 298. We note that the documents attached to the pro se brief are not part of the record and cannot be considered by this Court. Grant v. State, Tex.Cr.App., 505 S.W.2d 259; Miles v. State, Tex.Cr.App., 501 S.W.2d 91.

Finding no reversible error, the judgment is affirmed.


author: GREEN, Commissioner.

text:
    Marcia McKITTRICK, Appellant, v. The STATE of Texas, Appellee.
    No. 51364.
    Court of Criminal Appeals of Texas.
    April 28, 1976.

      Charles L. Caperton and Kenneth E. La-bowitz, Dallas, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis M. Bell and Bob Bennett, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before the court on a plea of not guilty, appellant was convicted of murder. Punishment was assessed at ten years.

Appellant’s sole ground of error reads:

“The trial court erred in denying appellant’s motion to suppress her confession of September 25, 1973, because said confession was coerced and involuntary; the circumstances under which the confession was obtained reveal that her protected rights were violated in its production.”

Appellant specifically complains that she was taken from Dallas to Houston by Houston police officers without the knowledge or consent of her retained attorney; that the officers taking her discussed the case with her prior to her receiving the Miranda warning; that the confession was procured by virtue of promises of immunity and medical attention made by Detective J. W. Carpenter, and was taken while she was under the influence of drugs and suffering from heroin withdrawal symptoms; and that she did not knowingly and voluntarily waive her Miranda rights.

After a hearing on appellant’s motion to suppress her written confession, the court overruled the motion, and the confession was admitted in evidence over appellant’s objections at her trial.

The transcription of the court reporter’s notes of the evidence at the hearing exceeds 250 pages. Both the State and appellant placed a number of witnesses on the stand. Appellant testified, giving her view of the proceedings leading to the confession. The testimony of State and defense witnesses concerned events occurring in Houston, Dallas and Lubbock over a period of several days. Among the fact issues raised were whether appellant knowingly and intelligently waived the presence of counsel and her right to remain silent, whether she was under the influence of drugs which led to her giving the confession, whether her confession was secured as the result of promises made her by the officer taking the confession.

No order was entered by the trial court stating its findings on the fact issues raised at the hearing. The only ruling of the court reflected by the record was the statement made at the close of the hearing on the motion to suppress:

“THE COURT: The Defendant’s objection to State’s Exhibit No. 1 (the written confession) is overruled, and the Defendant’s Motion to Suppress the Statement is overruled and denied.”

A determination by the trial judge of the voluntariness of a defendant’s confession prior to its admission in evidence is a constitutional and statutory requirement, and such determination must distinctly appear in the record. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Sims v. Georgia, 385 U.S. 538, 87 U.S. 639, 17 L.Ed.2d 593; Davis v. State, Tex.Cr. App., 499 S.W.2d 303; Lopez v. State, Tex. Cr.App., 384 S.W.2d 345. Also see Art. 38.22, Sec. 2, V.A.C.C.P.

In Davis v. State, supra, the trial court, after conducting a hearing on the defendant’s motion to suppress the confession, failed to make any fact findings on the issues raised, as expressly required by Art. 38.22, Sec. 2, V.A.C.C.P., supra, but merely overruled the motion to suppress, and admitted the confession in evidence. On the original submission this Court, with two judges dissenting, held that the failure of the trial court to comply with the constitutional and statutory requirements of making fact findings as to the voluntariness of the confession constituted reversible error, and ordered the judgment reversed and the cause remanded. On rehearing, a supplemental transcript containing the written findings of the trial court as to the volun-tariness of the confession, which findings were made subsequent to the opinion remanding the cause, was filed in this Court. Thereupon, a majority of the Court, with two judges dissenting, held that both constitutional and statutory requirements had been met, and proceeded to consider the appeal and affirm the judgment.

In Hester v. State, Tex.Cr.App., 535 S.W.2d 354 (1976), the question of the vol-untariness of defendant’s confession was also raised in the trial court. The trial judge, after conducting a hearing on defendant’s motion to suppress the confession, overruled the motion and made fact findings as follows:

“The Court finds that the statement or confession of the defendant, RANDALL LEWIS NYMAN, marked State’s Exhibit No. 2, to have been voluntarily made contemporaneously with a knowledgeable waiver of right to assistance of counsel and is held to be admissible as a matter of law and fact.
“The court further finds that the statement of the defendant, ROGER DALE HESTER, marked State’s Exhibit No. 3, to have been voluntarily made contemporaneously with a knowledgeable waiver of the right to assistance of counsel and it is held to be admissible as a matter of law and fact.
“The Motions to Suppress, three Motions to Suppress are in their entirety overruled.”

In holding the findings to be insufficient to comply with the mandatory requirements of Art. 38.22, Sec. 2, V.A.C.C.P., supra, we said:

“This order does not recite the findings of the trial court in any detail. It does not resolve numerous disputed fact issues upon which appellants’ grounds of error are based. As a result it does not assist this Court in determining the sufficiency of the evidence to support whatever unstated findings of fact were made by the fact finder. Consequently, we are unable to review the findings challenged by the appellants’ grounds of error.
“The order required by Article 38.22, Sec. 2, V.A.C.C.P., must recite the court’s findings on relevant disputed fact issues.”

In Hester, supra, where findings were made by the trial court, but which findings were insufficient to resolve numerous disputed fact issues upon which the defendants’ grounds of error were based, this Court, in a unanimous opinion, abated the appeal, with instructions to the trial court to make findings upon the disputed fact issues raised in the parties’ briefs concerning the voluntariness of the defendants’ confessions and file same with this Court. In so doing, we said:

“The disputed fact issues upon which findings should be returned to this Court should be apparent from the parties’ briefs filed in the individual cases. The trial judge may also review the transcription of the testimony upon which the original order was entered, if necessary, in order to aid his recollection of the findings previously made.”

We now hold that (1) whether the trial court makes findings insufficient in detail to enable this Court to resolve the fact issues upon which the appealing party bases his grounds of error, as in Hester, supra, or (2) whether no findings are made to support the ruling of the court of the voluntariness of the confession, as in Davis, supra, and in Figueroa v. State, Tex.Cr. App., 473 S.W.2d 202, and in the instant case, the appeal in cases where fact issues are raised concerning the voluntariness of a confession and grounds of error are based on such issues will be abated to enable the trial court to make in writing his fact findings on such issues and to file such findings in this Court.

The requirements of Art. 38.22, Sec. 2, V.A.C.C.P., are mandatory, and require the trial court to file its findings regardless of whether the defendant objects to the failure to do so or does not object. Hester v. State, supra.

In the instant case, we abate the appeal and direct the trial judge to reduce to writing his findings on the disputed fact issues surrounding the taking of appellant’s confession raised in the ground of error challenging the court’s ruling on its admissibility, and to file with this Court his certificate reciting those findings. As stated in Hester, supra, the trial judge may review the transcription of the testimony upon which his original ruling was made, if necessary, in order to refresh his recollection of the reasons behind said ruling.

The appeal is abated.

Opinion approved by the Court.

      . Art. 38.22, Sec. 2, V.A.C.C.P.
      “In all cases where a question is raised as to the voluntariness of a confession or statement, the court must make an independent finding in the absence of the jury as to whether the confession or statement was made under voluntary conditions. If the confession or statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of the jury, the court must enter an order stating its findings, which order shall be filed among the papers of the cause. . . ” (Emphasis added)


author: DOUGLAS, Judge.

text:
    Gary Clyde DANIELS, Appellant, v. The STATE of Texas, Appellee.
    No. 51264.
    Court of Criminal Appeals of Texas.
    April 28, 1976.
    Mary Ellen Hicks, Fort Worth, for appellant.

      Tim Curry, Dist. Atty., and Marvin Collins, Asst. Dist. Atty., Port Worth, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   DOUGLAS, Judge.

This is an appeal from a conviction before the Court for the unauthorized use of a motor vehicle without the owner’s consent, V.T.C.A., Penal Code, Section 31.07. Punishment, enhanced under V.T.C.A., Penal Code, Section 12.42(a), was assessed at eight years. On original submission the judgment was affirmed in a per curiam opinion. The sufficiency of the stipulated evidence and the question of the sufficiency of waiver of the right to cross-examine the owner of the vehicle were correctly decided in the original opinion.

Appellant, in his motion for rehearing, contends that the indictment is fundamentally defective in that it fails to allege an offense. Section 31.07, supra, provides, in part:

“(a) A person commits an offense if he intentionally or knowingly operates another’s boat, airplane, or motor-propelled vehicle without the effective consent of the owner.”

There is no allegation that he operated a “motor-propelled” vehicle. The indictment, omitting the formal parts, alleges that Gary Clyde Daniels

“. . . did then and there intentionally and knowingly operate, without the effective consent of the owner, Jack C. Ritchmond, one pickup truck . . .” (Emphasis Supplied)

He relies primarily on the case of Harrison v. State, 151 Tex.Cr.R. 606, 210 S.W.2d 591 (1948), a conviction for failure to stop and render aid after a collision, wherein this Court held that the indictment was fundamentally defective because it failed “to allege that the truck was a motor vehicle, to-wit, a truck,” stating that the word “truck” could be applied to more than one kind and character of vehicle.

The issue then is clearly defined, “Does the substitution of the words ‘pickup truck’ for ‘motor propelled vehicle’ render the indictment insufficient?” In 1 Branch’s Ann. P.C.2d, Section 515, it is written:

“Where a word not in the statute is substituted for one that is, the indictment is sufficient if the word thus substituted is equivalent to the word used in the statute, or is of a more extensive signification than the statutory word and includes it.”

The meaning of “pickup truck” is commonly understood. The term is frequently used in referring to light weight trucks. The Uniform Act Regulating Traffic on Highways, Article 6701d, V.A.C.S., Section 2(a) defines “vehicle” as “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway . . . .” Section 2(b) defines “motor vehicle” as “every vehicle which is self-propelled . . . .” Section 2(h) provides that a “light truck” is “any truck, as defined in this act, with a manufacturer’s rated carrying capacity not to exceed two thousand (2,000) pounds and is intended to include those trucks commonly known as pickup trucks, panel delivery trucks and carryall trucks.” Section 4(a) defines “truck” as “every motor vehicle designed, used, or maintained primarily for the transportation of property.”

We hold that the allegation “pickup truck” is sufficient as an allegation of a “motor-propelled vehicle” under the statute. If any case may be construed to the contrary, it is overruled.

No error having been shown, the motion for rehearing is overruled.

      . See Texas Annotated Penal Statutes with Forms, Branch’s Third Edition, Volume 2, Section 3107, page 515.