author: SMITH, Judge.

text:
    Tanner CHRISLER, Jr. a minor, by his next friend, Tanner Chrisler, Sr., Plaintiff-Respondent, v. HOLIDAY VALLEY, INC., Defendant-Appellant.
    No. 39467.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 20, 1979.

      Hiram W. Watkins, Robert J. Albair, Clayton, for defendant-appellant.
    James E. Hullverson, Hullverson, Hull-verson & Frank, Inc., Steve Ringkamp, St. Louis, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals from a judgment against it and in favor of plaintiff in the amount of $2,300,000 based upon a jury verdict. We affirm.

No challenge is made to the sufficiency of the evidence to support the verdict nor is any claim of excessiveness made. Plaintiff, seventeen years old at the time of the accident, was injured when he dived into defendant’s commercially operated swimming pool. The water depth at the place of injury was approximately three feet. Plaintiff trotted to the edge of the pool and dived in. The dive was a “normal” or “regular” one, neither a “belly-flop” nor a deep dive but more like the former than the latter. In the water plaintiff felt something strike his thighs and his head went down and his feet up. The “something” was a metal chain, tautly stretched, located several inches below the surface of the water. Plaintiff’s head struck the bottom of the pool causing spinal cord damage which has left plaintiff a quadriplegic, almost totally paralyzed from the collarbone down. He is unemployable, incontinent in both bladder and bowel, sexually dysfunctional, confined in a wheelchair, and reliant on assistance to handle almost any activity or function except eating. His condition is permanent. His hospitalization was approximately nine months in length and included both treatment and therapy of a painful nature.

Plaintiff’s submitted theory was negligence based upon (1) a failure to warn of the shallowness of the water and that diving was dangerous and (2) the presence of a metal chain below the water without adequate warning of that presence. There was evidence to support both claimed theories of negligence. Defendant introduced evidence of warning signs, of the absence of causal relationship between the presence of the chain and the injury, that the injury occurred solely because plaintiff dived too deeply and that plaintiff was guilty of contributory negligence.

Defendant raises nine points of alleged error. Two of those points relate in whole or in part to damages. Plaintiff asserts that neither has been preserved because of defendant’s failure to claim exces-siveness of the verdict arising from such purported errors. We are aware of the theory of law asserted by plaintiff. In Miller v. Haynes, 454 S.W.2d 293 (Mo.App.1970) [3], this court expressed its reservations about the doctrine that error relating to damages is deemed non-prejudicial in the absence of an allegation of excessiveness. We continue to have difficulty reconciling the rule enunciated and the established doctrine that incompetent evidence on a material issue is presumed prejudicial. In most litigation, and particularly in personal injury actions, there is a large range between the damage extremes of inadequacy and excessiveness. Within that range a jury has virtually unfettered discretion to determine the damages incurred and is under no obligation to, and in fact is prohibited from, specifying what amounts have been attributed to each of the various elements of damage. Past and future pain and suffering, embarrassment and humiliation, future care and medical treatment, loss of or reduction in employment opportunities and many other factors, do not lend themselves to precise calculation. It is not only possible, but probable, that erroneously admitted evidence on damage issues could well increase or decrease the amount of the jury verdict substantially without taking the total verdict beyond either of the extremes. Under those circumstances imposing a requirement that the error be shown to have caused excessiveness is to allow actual prejudicial error to stand without redress. In short, it is not necessary that error cause a verdict to become inadequate or excessive for it to be prejudicial. However, the latest decisions of our Supreme Court still apply the rule and we must do so. Chambers v. City of Kansas City, 446 S.W.2d 833 (Mo. 1969) [12-14]; Myers v. Bi-State Development Agency, 567 S.W.2d 638 (Mo. banc 1978) [7]. Here, however, one of the points (the “insurance question”) does not relate solely to damages and the other (concerning loss of future earnings) deals with such large amounts of money that we would be compelled to find the verdict excessive if the evidence was improperly admitted.

We deal with those points first. Defendant contends that the trial court erred in allowing plaintiff to inquire of the venire panel whether any of them had any financial interest in or was connected or associated with Aetna Casualty and Surety Company. Defendant’s complaint is that the limit of coverage of the Aetna policy was $50,000 which had already been offered in settlement of plaintiff’s claim and that the amount was de minimis in view of the injuries involved in this case. Defendant additionally asserts that the trial court erred in thereafter refusing to allow defendant to advise the venire panel of the limit of coverage.

Plaintiff had the right to determine whether any member of the venire panel had an interest in the insurance company which had an interest in the outcome of the litigation. See Bunch v. Crader, 369 S.W.2d 768 (Mo.App.1963); Swift v. Bagby, 559 S.W.2d 635 (Mo.App.1977). That right was not lost because the amount of that interest, although substantial, was a relatively small amount of the potential liability. The fact that Aetna had an interest in the outcome of the litigation warranted the inquiry to the panel. The amount of the interest was immaterial. See Ternetz v. St. Louis Lime & Cement Co., 252 S.W. 65 (Mo. banc 1923); Clayton v. Hydraulic Press Brick Co., 27 S.W.2d 52 (Mo.App.1929). We find no error in the action of the trial court.

Defendant’s remaining point concerning damages alleges error in refusing to strike the testimony by Mrs. Anna Maly, an employment counselor for the Missouri State Employment Service. Mrs. Maly testified that it was her job to find employment for hard-to-place persons including those with handicaps. In that capacity she was familiar with the employment opportunities for handicapped persons. She then testified as an expert that plaintiff was permanently unemployable. On cross-examination, Mrs. Maly testified that she had had only one or two paraplegics or quadriplegics as clients in the last ten years and that she had been unable to place them. Upon this testimony defendant sought to strike Mrs. Maly’s testimony on the basis that she was not an expert on para- and quadriplegics. This misconceives the nature of Mrs. Maly's expertise. She was an expert on employment opportunities, particularly those for hard-to-place people including people with handicaps. It was about those opportunities that she was testifying and she was aware of the requirements for a vast number of jobs. Her slight experience with para- and quadriplegics did not affect her expertise on employment opportunities, at most, it affected the weight to be given to her testimony. Pate v. St. Louis Ind. Packing Co., 428 S.W.2d 744 (Mo.App.1968) [4, 5]; Edwards v. Rudowicz, 368 S.W.2d 503 (Mo.App.1963) [4-8]. This also disposes of defendant’s ancillary point that the testimony of plaintiff’s economics expert should not have been permitted because it was based upon Mrs. Maly’s testimony. We find no abuse of the trial court’s discretion in allowing the testimony of both these experts.

Defendant also complains of the trial court’s action in permitting Dr. Gabriel-son, an expert witness on swimming and diving, to describe a “normal dive.” It is contended that such testimony invaded the province of the jury. Plaintiff’s dive had been described by other witnesses as a “normal” dive. Dr. Gabrielson testified that in a “normal” dive the individual reflexively bends slightly at the waist and knees as he enters the water. This is a matter not within the experience of the average juror and was properly the subject of expert testimony. The dynamics of diving and the configuration which an untrained diver such as plaintiff would reflexively assume was important to the jury in deciding the case. It tended to explain why plaintiff’s thighs struck the chain and how such contact changed plaintiff’s direction so as to drive him to the bottom of the pool. We find no abuse of the trial court’s discretion. McConnell v. Pic-Walsh Freight Co., 432 S.W.2d 292 (Mo.1968) [12].

Defendant also premises error upon its assertion that the trial court allowed Dr. Gabrielson to testify to “National Swimming Pool Standards and Customs” because no such standards had been introduced into evidence. This is simply not accurate. Dr. Gabrielson was a swimming and diving coach and a consultant on swimming pools to architects, municipalities, school, federal and private agencies for 27 years and had viewed “thousands” of pools. He testified that certain conditions at defendant’s pool, including the chain, were unsafe and not in accord with the usual customs of the industry. He did not testify to any “national standards” because defendant’s objections to such testimony were sustained. The testimony allowed was permissible expert testimony on a relevant matter. Gatzke v. Terminal Railroad Assn. of St. Louis, 321 S.W.2d 462 (Mo.1959) [2-4].

Defendant also premises error on the trial court’s refusal to allow cross-examination of a lay witness, who had taken swimming and life-saving courses, about whether he had been taught that it was dangerous to dive into water of an unknown depth. We are unable to understand what relevancy this question had. The witness had testified to what he had seen at the pool on the day of the accident. The issue before the jury was plaintiff’s contributory negligence, not that of the witness. The witness’ knowledge could shed no light upon the propriety of plaintiff’s actions.

Defendant’s next point is that the court erred in permitting plaintiff to present rebuttal evidence of an expert nature concerning the physics of fluid resistance and the physical effects from striking a chain under water while diving. Admission of rebuttal evidence is a matter largely within the discretion of the trial court. Rebuttal evidence is evidence which tends to disprove new points first opened by the opposite party. Peters v. Dodd, 328 S.W.2d 603 (Mo.1959) [8-11]. Even if the evidence could have been introduced in the case in chief, the trial court may permit it to be offered in rebuttal. Kelly v. Kansas City Public Service Co., 335 S.W.2d 159 (Mo. 1960) [1]. Here the matter of the physics of fluid resistance first arose when defendant produced an expert on the subject during defendant’s ease. Plaintiff’s expert was called in rebuttal to this testimony. This was proper. Willard v. Robertson, 129 S.W.2d 911 (Mo.1939) [2], We know of no rule which requires a plaintiff to call, during his case in chief, every conceivable witness who might contradict a potential defense witness.

Defendant’s next point alleges error in the failure of the trial court to declare a mistrial because of a statement made by plaintiff’s attorney during closing argument. Objection was made to the statement and was sustained. No further relief was requested and none was given. We fail to find plain error in the court’s failure to declare an unrequested mistrial.

Defendant also asserts that the trial court erred by including in the plaintiff’s verdict-directing instruction the word “lifeline.” The instruction was M.A.I. 22.03 modified and began as follows:

“Your verdict must be for the plaintiff if you believe: First, there was a shallow area with a chain lifeline without floats in the defendant’s pool, and as a result, the pool was not reasonably safe for patrons, and . .

It is contended that the inclusion of the word “lifeline” (1) assumed a controverted fact, (2) was misleading and confusing and (3) was a technical term requiring definition. Plaintiff’s evidence was that the chain was a “lifeline” serving as a barrier to prevent children from going beyond a certain point or to mark a breakpoint in the pool. Defendant contended the chain was a “divider.” There was evidence that a “lifeline” should have floats attached to it, whereas a “divider” need not have. We are not convinced that a jury would have been precluded from finding negligence in the maintenance of an undisclosed underwater chain whether it is delineated lifeline or divider. However that may be, the jury was required to find the chain was a lifeline. We cannot conclude that an instruction which requires a jury to find a specific fact has assumed as true that controverted fact. Such a contention is a non sequitur.

Nor, do we believe the use of the word “lifeline” was confusing or required definition. There was considerable evidence put before the jury about lifelines, dividers, floats, breakpoints and explanations of what those terms meant. The term “lifeline” was not suddenly sprung on the jury in the instruction and we cannot conclude it was confused by the term. Additionally, if defendant believed the term needed definition it could and should have offered an instruction defining the term. Gallaher-Smith-Feutz Realty, Inc. v. Circle Z Farm, Inc., 545 S.W.2d 395 (Mo.App.1976) [5, 6]. We find no error.

Defendant’s final point is that the court erred in failing to include in the contributory negligence instruction the following language: “or failed to acquaint himself with the depth of the water at the point of his dive before diving; . . .” The instruction did submit that a verdict should be returned for defendant if plaintiff negligently dove into the pool where the pool was marked “no diving” and “3” or if plaintiff negligently failed to keep a careful lookout into the water into which he was diving.

In Boll v. Spring Lake Park, Inc., 358 S.W.2d 859 (Mo.1962) and Rigdon v. Springdale Park, Inc., 551 S.W.2d 860 (Mo.App.1977), it was held that a commercial swimming pool patron has “a duty to exercise ordinary care to avoid known or appreciated dangers and to discover conditions of danger which a prudent person in the exercise of ordinary care under similar circumstances would discover . .” Rigdon, supra, l.c. 864. Such a patron, however, is under no duty to make a critical examination of the facilities, and may rely to some extent upon the assumption that the pool owner would not invite the patron to use a dangerous facility. In Rigdon, supra, we held it error for the contributory negligence instruction to include language very similar to that which defendant contends should have been included here.

Unlike Boll and Rigdon the water here was not murky; quite the contrary it was so clear that the depth could not be ascertained by looking into it. The pool was designed with a “compound” slope, i. e.: the bottom sloped both toward the center of the pool and toward the end of the pool. The pool near the sides was therefore shallower than in the center. Plaintiff saw friends of his about 30 to 35 feet from the side of the pool with water up to their shoulders. Because they were directly in front of the point where plaintiff intended to enter the water and because of the location of an elevated life guard stand in close proximity to the point where plaintiff entered the water, plaintiff believed the water to be four or five feet deep. Under the circumstances we find no affirmative duty upon the plaintiff to conduct a critical examination to determine the depth of the water. There was no error in the trial court’s refusal to include the heretofore quoted language in the contributory negligence instruction.

Judgment affirmed.

WEIER, C. J., and SNYDER, P. J., concur.


source: Caselaw Access Project

author: REINHARD, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Richard PAGE, Appellant.
    No. 39959.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 3, 1979.

      James F. Booth, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Gordon L. Ankney, St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals his conviction by a jury of the offense of assault with intent to maim with malice aforethought. The court sentenced him under the Second Offender Act to 12 years imprisonment.

The evidence shows that at the time of the assault the defendant, Richard Page, was incarcerated in the St. Louis City Medium Security Institution, commonly known as the City Workhouse. Captain Frank Bobo, a security officer at the Workhouse, was on duty on August 23, 1976. In the early morning of that day he heard a disturbance at the door leading from the hallway in which he was standing to the dormitory which contained 26 one-man cells. Both the defendant and Mark Moore inhabited cells in that dormitory. Captain Bobo saw Moore come through the door bleeding around the neck, followed closely by Page. Moore was taken to Homer G. Phillips Hospital where it was determined that he had suffered multiple wounds to the chest and neck including a 98% transection of the left internal jugular vein. Defendant Page was found to have no injuries.

While investigating the incident, Captain Bobo went to Defendant’s cell, where he found a pool of blood 6 to 12 inches in diameter and pieces of glass scattered on the floor. All of the shards of glass were from the light fixture which had been in Page’s cell. Captain Bobo testified that the cells are inspected every day and that a broken fixture would not be left in a cell. One of the pieces of glass had tape wrapped around the wide, blunt end, the other end being pointed. There was blood on this piece of glass. A criminalist testified that he found no blood on any of the other pieces of glass.

Following the assault, defendant was questioned by Officer Aldophus Hardy of the St. Louis City Police Department. After the officer informed Page of his constitutional rights, the defendant admitted that he stabbed Moore with a piece of glass because of a dispute over Moore’s watch. According to this admission, Moore had loaned defendant the watch and later had taken it from defendant’s cell. Afterwards Moore had demanded the watch from defendant Page and the fight ensued.

At trial the defendant denied giving Officer Hardy a statement and told a slightly different or elaborated version of the facts. The defendant testified that before the incident he had seen Moore at the Workhouse commissary where Moore had asked the defendant if he intended to pay for Moore’s watch, which Moore said had been stolen while in defendant’s possession. The defendant refused to pay for it, believing that the watch had been returned to Moore. After leaving the commissary defendant entered his cell with an inmate named Ingram. Ten minutes later Moore pushed open the door to defendant’s cell, entered and hit Page on the head with a hard object. The defendant responded by wrestling Moore to the floor, knocking some glass off a table in the process. Page grabbed the closest thing, a piece of the broken glass, and started swinging to get Moore off of him. He did not realize that he had cut Moore. The fight was then broken up by other inmates at which time Page ran to the door of the cell dormitory.

The State did not call Moore as a witness.

First, defendant contends that the trial court erred in overruling his motion for judgment of acquittal. The trial court should have sustained the motion, defendant argues, because the case was not sub-missible to the jury in that the state had failed to establish specific intent to maim.

In reviewing the sufficiency of the evidence, we must view it in the light most favorable to the state and give the state the benefit of all reasonable inferences. State v. Wiley, 522 S.W.2d 281, 292 (Mo. banc 1975).

It is well settled that the intent required in a case such as this can be determined by circumstantial evidence. State v. Gannaway, 313 S.W.2d 653, 656 (Mo.1958). “In fact, intent is generally not subject to direct proof and is therefore necessarily established by circumstantial evidence.” State v. Mills, 495 S.W.2d 715, 716-717 (Mo.App.1973). It is equally well established that the words “to maim” mean no more than the infliction of some great or serious bodily injury. State v. Foster, 281 Mo. 618, 220 S.W. 958, 960 (1920). In ascertaining the existence of the requisite intent, the jury could consider the nature of the weapon used, the manner of its use, the results of its use, and all related circumstances giving rise to the incident out of which the charge arose. State v. Woody, 406 S.W.2d 659, 661-662 (Mo.1966).

The state’s evidence showed that Mark Moore was bleeding from the neck and that defendant followed him as Moore left the cell dormitory. A pool of blood 6 to 12 inches in diameter was found on the floor of defendant’s cell with shards of glass nearby. One piece of glass, with blood on it, had been taped. Moore suffered from serious wounds to the chest and neck, including a 98% transection of the left internal jugular vein. Defendant admitted to a police officer that he had stabbed Moore with a piece of glass in a dispute over the latter’s watch. Clearly, the jury could reasonably inter from these facts that defendant intended to inflict serious bodily harm on Moore.

The defendant also claims that the court erred in submitting the case to the jury because the state failed to prove beyond a reasonable doubt that defendant did not act in lawful self-defense.

Once self-defense is properly raised, the burden of proof is on the state to prove the defendant did not act in justifiable self-defense. State v. Tindall, 496 S.W.2d 267, 271 (Mo.App.1973). However, this does not mean that the state is required to come forward with additional evidence after the defendant has produced evidence of self-defense. State v. Willett, 539 S.W.2d 774, 778 (Mo.App.1976). In State v. Curby, 553 S.W.2d 566 at page 568 (Mo.App.1977), we said:

Rarely will the defense of another [self-defense] be declared as a matter of law and taken from the jury. This would occur as a rule only when the state’s undisputed evidence proves the defense [citation omitted] ... Only when all the evidence clearly and undisputedly points to defense of another [self-defense] is the defendant entitled to a directed verdict. Where the evidence is conflicting or of such a character that different inferences might reasonably be drawn therefrom, it is generally a question of fact for the jury to determine whether the accused acted in defense of another [self-defense] [citations omitted].

We cannot declare that the evidence here establishes self-defense as a matter of law. The only evidence of self-defense was the defendant’s own testimony. The evidence is such that the jury could find the defendant’s testimony inconsistent with the evidence presented by the state. The fact that the glass had been prepared beforehand with tape wrapped around it as a handle, the number and severity of the victim’s wounds, the defendant’s statement to Officer Hardy, which made no mention of self-defense, and the fact defendant was apparently unharmed after the incident all raise inferences that are contrary to the defendant’s testimony.

Furthermore, we find no merit in defendant’s contention that the trial court erred in admitting into evidence his statement to Officer Hardy and the pieces of glass found in his cell, because at the time of their admission evidence of the corpus delicti had not been established.

Evidence of the corpus delicti need not have preceded the admission of defendant’s statement, as long as the essential elements of the case were proved by the end of the trial. State v. Deyo, 358 S.W.2d 816, 819 (Mo.1962); State v. Easley, 515 S.W.2d 600, 602 (Mo.App.1974). In establishing the corpus delicti, two elements must be proved: injury and criminal agency causing the injury. The rule in this state has long been that full proof of the corpus delicti, independent of a confession, is not required. State v. Skibiski, 245 Mo. 459, 463, 150 S.W. 1038, 1039 (1912). If there is independent evidence, direct or circumstantial, which corroborates the defendant’s admission, then both may be considered in determining whether the corpus delicti has been sufficiently established. State v. Kollenborn, 304 S.W.2d 855, 858 (Mo. banc 1957). An examination of the evidence previously discussed in this opinion clearly shows that the corpus delicti was established by the state’s evidence when considered with defendant’s statements. For the same reasons, we reject defendant’s contention that the pieces of glass were improperly admitted into evidence.

Defendant finally contends that:

Statements made by the State’s attorney in his closing argument that the defendant could have subpoenaed Mark Moore to testify were prejudicial and their effect was such as to shift the burden of proof from the State to the Defendant. That notwithstanding the fact that the court sustained defense counsel’s motion to said statements and instructed the jury to disregard such statements, their impact was such as to inur [sic] to the great prejudice of the Defendant and thus denied him a fair trial.

The basis of this allegation is contained in the following exchange between the court and the respective attorneys:

MR. ANKNEY: You can speculate all day about what Mark Moore would have said, why the State didn’t bring him down but I vouch for the credibility of the witnesses I put on the stand and you also know that he has the right to subpoena anybody he wants to, so you can speculate all you want—
MR. KIRKSEY: Well, your Honor, I object to that. Now counsel is attempting to shift the burden of proof to the defendant. I think that is objectionable.
THE COURT: I’ll sustain the objection.
MR. KIRKSEY: Ask you to instruct the jury to disregard it.
THE COURT: Jury be instructed to disregard that so far as Mark Moore is concerned.
MR. ANKNEY: He has the right to subpoena witnesses.
MR. KIRKSEY: Well, your Honor—
MR. ANKNEY: That’s true, he has the right to subpoena—
MR. KIRKSEY: He’s shifting the burden of proof, your Honor.
THE COURT: Well, every individual has the right to subpoena witnesses but whether or not it’s their duty to do so, that’s something else, and the burden of proof in a criminal case never shifts, it always remains on the State.
Let’s proceed.
MR. KIRKSEY: Thank you, your Honor.

Because the defendant neither asked for a mistrial nor assigned the failure to declare a mistrial as error in his motion for a new trial, the point was not properly presented for review. Therefore, we will consider this contention under the precepts of Rule 27.20(c), which provides that plain errors not properly presented may be considered by the court, “when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.”

Reviewing the record, we find that the defendant was given all the relief he requested. The court sustained the objection, instructed the jury to disregard the prosecuting attorney’s statement, and remarked that the burden of proof always remains on the state. The granting of a mistrial is a drastic remedy which should be employed when no other relief can remove the prejudice of improper argument. State v. Goff, 490 S.W.2d 88, 90 (Mo.1973). This is simply not the case here. An examination of the comment by the prosecuting attorney and the response by the court reveals no prejudice to the defendant. Hence, we find no “manifest injustice or miscarriage of justice” necessitating application of Rule 27.20(c).

Affirmed.

GUNN, and CRIST, JJ., concur.


author: HOGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gerald L. COLLINS, Defendant-Appellant.
    No. 10714.
    Missouri Court of Appeals, Southern District.
    April 6, 1979.
    Loren R. Honecker, Springfield, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Weldon W. Perry, Jr., Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   HOGAN, Judge.

Upon trial to the court, defendant Gerald L. Collins was found guilty of tampering with a motor vehicle as defined and denounced by former § 560.175(1), V.A.M.S., and his punishment was assessed at imprisonment for a term of three years. Pursuant to § 549.071(1), RSMo 1969, V.A.M.S., defendant’s “sentence” was suspended and he was put on probation for a term of two years. Defendant appeals.

The defendant has vigorously argued that he was arrested without probable cause and that the statements he made to peace officers while in custody were involuntary under the principles stated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) and modified in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The state has answered the defendant’s contentions as presented. Resolution on the merits would be relatively simple if this court had jurisdiction of the appeal.

This appeal is the defendant’s appeal of constitutional right. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). We should not, indeed cannot, resolve the appeal on its merits by ignoring the want of a final judgment from which to appeal. We find from our own inquiry that evidence was heard in this cause on June 10, 1977. At the close of all the evidence, the trial court immediately granted allocution, pronounced sentence and “granted” probation for a period of two years. There is nothing in the record which would warrant a finding that the defendant expressly waived his right to file a motion for new trial or other authorized after-trial motion.

The interrelation of Rule 26.01, which permits the trial of criminal causes to the bench, Rule 28.18, and amended Rule 73.01 has given rise to difficult questions on criminal appeals. Rule 73.01(l)(c) provides that in bench-tried civil cases a party may, but need not, file a motion for new trial. Rule 73.01(2)(b) provides that neither a motion for new trial nor a motion to amend the judgment is necessary to preserve any matter for appellate review. Because the criminal rules are not specific about the necessity of a motion for new trial as a basis for appellate review of a conviction, and because Rule 28.18 refers in very general language to the civil rules, our courts have held that a motion for new trial is not necessary to secure review of a judgment of conviction and sentence thereon in a bench-tried criminal case. State v. Farmer, 548 S.W.2d 202, 204[1] (Mo.App.1977); State v. Bruns, 522 S.W.2d 54, 55[1] (Mo.App.1975). It does not follow that a criminal defendant may be sentenced before he has been given the opportunity to file a motion for new trial or other appropriate after-trial motion.

Even though a motion for new trial in a bench-tried case may not serve precisely the same function as a motion for new trial in a jury-tried case, the opportunity to file such a motion is a valuable right which may not be denied unless it is expressly waived, even in court-tried cases. Therefore it has been consistently held that a criminal defendant must be afforded the opportunity to file such motion before a judgment is rendered and sentence is imposed, and the record should indicate, either by lapse of the ten-day period prescribed by Rule 27.20(a) or by express waiver, that the defendant has been given the chance to file such motion or motions. State v. Griffin, 563 S.W.2d 166, 167[1] (Mo.App.1978); City of Kansas City v. Rowell, 548 S.W.2d 236 (Mo.App.1977); State v. Summers, 477 S.W.2d 721, 722[1] (Mo.App.1972); State v. Absher, 439 S.W.2d 11, 12 (Mo.App.1969). The purported sentence is premature, void, and we are without jurisdiction of the appeal. The submission must be set aside but the trial court retains jurisdiction to afford the defendant an opportunity to file or waive his right to file a motion for new trial. State v. Absher, supra, 439 S.W.2d at 12. In the circumstances presented, the cause is remanded to the Circuit Court of Greene County. The defendant will be afforded the opportunity to file a motion for new trial or to waive his right to do so. As soon as the trial court has acted upon defendant’s motion or upon his filing an express waiver of his right to do so, the cause will be restored to this court’s docket for consideration on the merits, if defendant so desires. It is so ordered.

BILLINGS, C. J., and YEAMAN, CONLEY and RAGLAND, Special Judges, concur.

      . References to rules are to Missouri Rules of Court, 9th Edition, 1978, V.A.M.R.

      . Which reads: “[T]he Rules of Civil Procedure governing practice and procedure in the Supreme Court and Courts of Appeal in civil cases shall govern the practice and procedure in criminal cases . .


author: FONES, Justice.

text:
    CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY and Attorney General for the State of Tennessee v. CITY OF CHATTANOOGA et al.
    Supreme Court of Tennessee.
    April 23, 1979.

      Alvin O. Moore, Spears, Moore, Rebman & Williams, John P. Gaither, Witt, Gaither & Whitaker, Chattanooga, William M. Leech, Jr., Atty. Gen., Everett H. Falk, Deputy Atty. Gen., Nashville, for petitioners.
    John C. Stophel, Stophel, Caldwell & Heggie, Chattanooga, filed brief amicus curiae, for Chattanooga Opthalmological Foundation.
    Eugene N. Collins, City Atty., W. Lee Maddux, Sp. Counsel, John T. Henniss, County Atty., Howell G. Clements, Grant & Clements, P. A., Chattanooga, for respondents.
   OPINION

FONES, Justice.

This suit involves challenges to the constitutionality of two private acts establishing the Chattanooga-Hamilton County Hospital Authority (hereinafter the “Hospital Authority”), 1976 Tenn.Priv.Acts ch. 297, as amended by 1977 Tenn.Priv.Acts ch. 125.

In substance, the 1976 Act created the Hospital Authority to operate Baroness Er-langer Hospital, T. C. Thompson Children’s Hospital and other health facilities in order to provide consolidated health services to the residents of both Chattanooga and Hamilton County.

The 1977 Act expressly ratified and amended the former Act and, in more elaborate details, provided for the powers, duties and financial operation of the Hospital Authority. The 1976 Act was passed pursuant to article XI, § 9, para. 9 of the Tennessee Constitution, which allows the General Assembly to provide for the consolidation of any or all governmental and corporate functions of municipal corporations with the counties in which the city is located only upon referendums in “home rule” municipalities.

A county-wide referendum on August 5, 1976, approved the 1976 Act. The 1977 Act provided for, and received, the approval of the county council of Hamilton County by a two-thirds vote.

The City and County refused to convey the hospital properties, as required by the Acts, on the grounds, inter alia, that the private Acts were adopted in contravention to the “home rule” amendment to the Tennessee Constitution. Tenn.Const. art. XI, § 9. Subsequently the Hospital Authority sued the City and County pursuant to T.R. C.P. 57 and T.C.A. § 23-1101, et seq., seeking a declaratory judgment that the Acts were constitutional and an order directing the conveyance of the hospital properties. The trial court granted the requested relief, but on appeal the intermediate court held the Acts unconstitutional as violative of article XI, § 9 and article II, § 17 of the State Constitution, dealing, respectively, with consolidations of government functions in “home rule” municipalities and the constitutional requirements of a caption to a legislative act. Petitioners, the Hospital Authority and the Attorney General, contend that the Court of Appeals erred in sustaining these assignments of error, and we granted certiorari to address those issues.

Prior to 1976, a five-man board of trustees supervised the operation of the hospitals and health centers in controversy — the Baroness Erlanger Hospital, the T. C. Thompson Children’s Hospital, the Alton Park Neighborhood Health Center and the Dodson Avenue Neighborhood Health Center. Two of the trustees were appointed by the Mayor of Chattanooga, two by the Hamilton County judge and one by the Hamilton County chancellors. The property on which the Erlanger and Thompson hospitals were located was held in fee simple by the City and County as tenants-in-common. Since 1966, a portion of the sales tax revenue was turned over to the County, which assumed the responsibility of financing the two hospitals. In addition, the City and County issued bonds when necessary. See Op.Att’y Gen. (July 7, 1977).

On March 11, 1976, the General Assembly passed House Bill No. 2394, 1976 Tenn.Priv. Acts ch. 297, which became law on March 30, 1976, after a pocket veto by the Governor. The Bill had the following caption:

AN ACT to create a Governmental Hospital Authority to own and operate Baroness Erlanger Hospital, T. C. Thompson Children’s Hospital and other related facilities and provide for the establishment and organization of a Board of Trustees for the operation thereof.

The Bill consisted of sixteen sections, which, passim, provide for the creation of the Hospital Authority, the establishment of a board of trustees and a financial review committee, the conveyance of property from the City and County, authorization and regulation of the issuance of bonds and securities and a recitation that all private acts, city ordinances and county resolutions in conflict with the Act are superseded. Section fifteen of the Act called for the submission of the Act to qualified voters of Hamilton County for their vote of approval in a referendum. On August 5,1976, such a referendum was conducted, and a majority of the voters approved the Act.

On May 19, 1977, the General Assembly passed Senate Bill No. 1499,1977 Tenn.Priv. Acts ch. 125, which substantially revamped the 1976 Act and provided more details on the administrative operation of the newly-created Authority, its board of trustees and financial review committee. Section eighteen of the Act declared the authority to be “a public instrumentality acting on behalf of the county.” Section two of the 1977 Act amended section two of the 1976 act to read:

In the event the authority shall at any time cease to exist . . . the real estate which was owned on August 5, 1976, by the county and the city and conveyed to the authority by the county and the city, shall revert in fee simple to the county, subject to such encumbrances as may be on said property at the time of reversion; provided, however, that the city shall have an option to require transfer to it of the title to the same proportion of such real estate as was owned by the city on such date, subject to such encumbrances on that portion of the real estate.

Although other portions of the 1977 Act affected the powers, duties and operation of the Hospital Authority, it appears from the briefs submitted to this Court that the above features of the 1977 Act were at the core of the controversy that led to this lawsuit. Finally, section fourteen of the Act provided for submission and approval of the Act by a two-thirds vote of the Hamilton County Council.

In his memorandum, the trial judge held that the Acts establishing the Hospital Authority did not violate the Tennessee Constitution, art. XI, § 8, art. XI, § 9, art. XI, § 17, art. II, § 17, art. II, §§ 1, 2 and art. I, §§ 20, 21. The Court found the 1976 Act was a consolidation act within the meaning of the “home rule” amendment and the requirements of that amendment were satisfied by the August 1976 referendum. On the other hand, the trial court concluded, “. . . nothing in Chapter 125 . would operate as a further consolidation of governmental functions beyond those consolidated already by Chapter 297.” The Court reasoned that since the 1977 Act “did not affect the City to any substantial degree,” it did not require approval by the City. Additionally, relying on an opinion of the Attorney General dated July 7, 1977, the Court found that the City of Chattanooga did not lose its right of first refusal by virtue of the amendment set forth in section two of the 1977 Act. In summary, the Court found that the 1976 Act, which accomplished a consolidation, was effective under the “home rule” amendment and that “the primary thrust of Chapter 125 is directed at providing more detail concerning the Hospital Authority and its board of trustees, particularly with respect to financial matters.”

The Court of Appeals addressed only two of the assignments of error cited by the defendants: (1) whether the caption to the 1976 Act was broader than its purview and (2) whether the approval of the 1977 Act by the County Council was a nullity because it should have required approval pursuant to the “home rule” amendment. Nevertheless, the Court of Appeals ruled that a consolidation was accomplished by the 1976 Act; presumably, therefore, in holding that the vote of the County Council was a nullity, it viewed the 1977 Act as falling under the “home rule” amendment. We disagree. Additionally, we disagree with the intermediate court’s holding that, “A review of the provisions of the 1976 Act already enumerated . . . makes it immediately obvious its purview is much broader than its caption.”

It is fundamental that “[w]hen a constitutional attack is levied on a statute, we are required to indulge every presumption in favor of its validity and resolve any doubt in favor of, rather than against, the constitutionality of the [a]ct.” Dorrier v. Dark, 537 S.W.2d 888, 891 (Tenn.1976); accord, Memphis Publishing Co. v. City of Memphis, 513 S.W.2d 511, 513 (Tenn.1974); Black v. Wilson, 182 Tenn. 623, 630, 188 S.W.2d 609, 612 (1945); see 16 Am.Jur.2d Constitutional Law § 137 (1964).

Article II, § 17 of the Tennessee Constitution provides in pertinent part:

No bill shall become a law which embraces more than one subject, that subject to be expressed in the title. All acts which repeal, revive or amend former laws, shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended.

Consistent with the fundamental rule that every legislative act is presumed to be constitutional, this Court will presume that the caption adequately expresses the subject of the body of an act and avoid a technical or narrow construction of the caption in order to exclude portions of an act. See, e. g., Memphis St. Ry. Co. v. Byrne, 119 Tenn. 278, 287-88, 104 S.W. 460, 462 (1907); see generally Sutherland, 1A Statutory Construction § 18.05 (4th ed. Sands 1972); 73 Am.Jur.2d Statutes §§ 102-18 (1974).

Various tests have been enunciated in our case law concerning the proper construction of this section of the Constitution. In Cannon v. Mathes, 55 Tenn. 504, 523 (1872), this Court, after holding that constitutional provision to be mandatory and not directive, held:

It is obvious, therefore, that the true rule of the construction, as fully established by the authorities, is, that any provision of the act, directly or indirectly relating to the subject expressed in the title, and having a natural connection thereto, and not foreign thereto, should be held to be embraced in it. Following this rule, we hold that in the case before us, the fourth section of the act, fixing the tax on privileges, has a natural connection with the subject expressed in the title of the act, and that the same is constitutional and valid, (emphasis supplied.)

This test has been paraphrased in other cases as follows: “So long as the subject matter of the act is germane to that expressed in the title, it is free from the objection that the body of the act is broader than its caption.” Southern Photo & Blue Print Co. v. Gore, 173 Tenn. 69, 74, 114 S.W.2d 796, 798 (1938) (emphasis supplied); accord, Dorrier v. Dark, supra; Cosmopolitan Life Ins. Co. v. Northington, 201 Tenn. 541, 300 S.W.2d 911 (1957); Witt v. McCanless, 200 Tenn. 360, 292 S.W.2d 392 (1956); Armistead v. Karsch, 192 Tenn. 137, 237 S.W.2d 960 (1951); Louisville & Nashville R. Co. v. Hammer, 191 Tenn. 700, 236 S.W.2d 971 (1951); Tennessee Elec. Power Co. v. Mayor & Aldermen of Town of Fayetteville, 173 Tenn. 111, 114 S.W.2d 811 (1938); Armstrong v. City of South Fulton, 169 Tenn. 54, 82 S.W.2d 862 (1935); see also Sutherland, supra § 17.03 (“reasonably germane” test adopted in other jurisdictions with similar constitutional provisions). As a corollary to the above test, it also has been recognized that the “subject” of an act, which must be expressed in the caption pursuant to article II, § 17, does not embrace the means or instrumentalities for accomplishing the purpose of the act. See, e. g., Woods v. Phillips, 558 S.W.2d 825, 829-30 (1977); Dorrier v. Dark, supra; Davis v. Hailey, 143 Tenn. 247, 252, 227 S.W. 1021, 1022 (1920).

Hence, it is well established, given the presumption in favor of the constitutionality of a caption, it need only serve “to assure that members of the Legislature and the public be given notice of legislative proposals and to prevent surprise and fraud in enactments.” Farris v. State, 535 S.W.2d 608, 610 (Tenn.1976); accord, State v. Hailey, 505 S.W.2d 712, 714 (Tenn.1974).

An item-by-item analysis of the body of the 1976 Act leads us to conclude that the letter and spirit of article II, § 17, have been satisfied. The gist of the Act was the establishment of the Hospital Authority, with an accompanying recitation of its powers, duties and operation through its board of trustees and financial review committee. The purpose of the caption rule is to prevent legislative logrolling and not to provide a yardstick by which to measure the purview of an act. We think that the caption quoted supra adequately apprised the Legislature and public of the subject of the Act and that the body of the Act, in setting forth the means and instrumentalities for implementing the purpose, was reasonably germane to the caption.

Although neither the caption nor the body of the 1976 Act complied with article II, § 17, requiring recitation of the specific acts superseded by its enactment, this will not destroy the validity of the Act. The repealing provision of section 17 does not embrace an autonomous statute that repeals all prior acts by implication. In Dorrier v. Dark, 540 S.W.2d 658, 659 (Tenn.1976), the Court held:

It has long been the law in this State that it is not necessary to recite the title or substance of all prior laws which are affected by the positive provisions of a subsequent enactment. If there is an irreconcilable conflict in the two laws, the prior act is rendered inoperative. To require exhaustive research through the Code for inconsistent acts, would be a requirement of such difficulty as to be almost an impossibility and would constitute a barrier to effective legislation.

Accord, Cheatham Co. v. Murff, 176 Tenn. 93, 103, 138 S.W.2d 430, 433 (1940); Home Ins. Co. v. Taxing Dist., 72 Tenn. 644, 649 (1880). It is obvious that the primary thrust of the 1976 Act was the autonomous establishment of the Hospital Authority, not the amendment of prior conflicting laws.

The Court of Appeals opined that the 1977 Act was not effective as an amendment to the 1976 Act because the latter, as subject to a consolidation referendum, could not be amended other than by a vote of the affected people. Thus, the issue is whether the General Assembly can amend a private act enacted pursuant to article XI, § 9 without resubmission of the amended version to the people for a referendatory vote.

Paragraph 9, § 9 of art. XI of the Tennessee Constitution provides:

The General Assembly may provide for the consolidation of any or all of the governmental and corporate functions now or hereafter vested in municipal corporations with the governmental and corporate functions now or hereafter vested in the counties in which such municipal corporations are located; provided, such consolidations shall not become effective until submitted to the qualified voters residing within the municipal corporation and in the county outside thereof, and approved by a majority of those voting within the municipal corporation and by a majority of those voting in the county outside the municipal corporation.

By its express provisions, this part of the “home rule” section allows for legislatively effected consolidations upon the approval of the affected people. It is familiar law that we shall construe the constitutional provision as written and will not read any ambiguity into it. E. g., Shelby County v. Hale, 200 Tenn. 503, 292 S.W.2d 745 (1956). A referendatory vote is only required for acts that accomplish a consolidation, not for acts amending or repealing a consolidation. In the absence of express language to the contrary, therefore, we must find that a referendum was not required under this section to accomplish the purpose of the 1977 Act.

It appears that other jurisdictions are divided on this issue, but the better view is that the legislature and the electorate are co-ordinate legislative bodies, and in the absence of special constitutional or charter restraint, either may amend or repeal an enactment by the other. See An-not., 33 A.L.R.2d 1118 § 2 (1954); 42 Am. Jur.2d Initiative and Referendum § 58 (1969); 82 C.J.S. Statutes § 150 (1953).

The City further challenges the validity of the 1977 Act, contending that since the amending Act affects the City as well as the County, but only was approved by the County Council, it should have had City approval. The City predicates its contention on article XI, § 9, para. 2 which provides in pertinent part:

“ ■ ■ . any act of the General Assembly private or local in form or effect applicable to a particular county or municipality either in its governmental or its proprietary capacity shall be void and of no effect unless the act by its terms requires the approval by a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected.”

In Doyle v. Metropolitan Gov’t, 225 Tenn. 496, 501, 471 S.W.2d 371, 373 (1971), we held that this section proscribes a private act “being made applicable to the municipality without the consent of the local legislative body or without an affirmative vote by the local electorate.” It is clear, however, that the City is not substantially affected by the 1977 Act and hence their approval was not necessary to validate the Act. The essence of the 1977 Act was a more detailed cata-logue of the duties, powers and operation of the Hospital Authority. Nevertheless, since several sections affect the County, such as section nineteen, which declared the Hospital Authority to be a “public instrumentality acting on behalf of the County,” we feel there could be an obvious basis for requiring the approval of the Hamilton County Council pursuant to Article XI, § 9, para. 2.

The City also raises several other challenges to the Acts in question based upon the State Constitution. We find these so-called novel constitutional questions to be without merit. The City contends that the Court of Appeals erred in finding that the 1976 Act met the specific voting requirements of the consolidation paragraph of article XI, § 9 because there was not a separate submission of the approval question to the City voters and to the County voters outside the City. However, both the trial court and the Court of Appeals found that a tabulation of the vote was made by each precinct which showed conclusively that there was approval given by the voters in the City and also by the voters in the County, and this concurrent factual finding disposes of the City’s contention.

The City argues that the 1976 Act did not create a “consolidation” and therefore was not subject to article XI, § 9, for the act actually “created” a Hospital Authority. We view this argument as based on a staid concept of “consolidation,” for the obvious legislative intention was to provide for consolidated health services, irrespective of the instrumentalities involved. Additionally, the City contends that the method of appointment of the board of trustees of the Hospital Authority violates the separation of powers doctrine. We fail to see how the delegation of authority to a county judge and chancellors to make administrative appointments amounts to “any encroachment by one [department] upon the powers, [functions,] and prerogatives of [either of the others] . . ” Richardson v. Young, 122 Tenn. 471, 491, 125 S.W. 664, 668 (1909). In State ex rel. Llewellyn v. Knox Co., 165 Tenn. 319, 330, 54 S.W.2d 973, 976 (1932), quoting from State v. Armstrong, 35 Tenn. 634 (1856), the Court said:

“ ‘But any power not legislative in character which the legislature may exercise it may delegate, and before a court can properly hold that a statute is void as unconstitutionally delegating legislative power, it must clearly appear that the power in question is purely legislative.’ ”

Similarly, although the Acts authorize the trustees to promulgate rules, regulations and policies of the hospital, such is not an unconstitutional delegation of legislative power in violation of article II, §§ 1, 2. See West v. Tennessee Hous. Dev. Agency, 512 S.W.2d 275, 281 (Tenn.1974).

Next, the City contends that the selection process for members of the board of trustees violates article XI, § 17, which provides:

“No County office created by the Legislature shall be filled otherwise than by the people or the County Court.”

However, we find that the office of trustee of the Hospital Authority is not a county office under the above section, but rather an office of an independent governmental entity. See Williams v. Cothron, 199 Tenn. 618, 288 S.W.2d 698 (1956).

Recognizing the presumption in favor of a statute’s constitutionality, we have considered the other assignments of error raised by the City and do not find them to be meritorious. In West v. Tennessee Hous. Dev. Agency, supra, we considered constitutional challenges based on article XI, § 8, and reiterated the view that, “ ‘ “The constitutional provision that ‘No corporation shall be created, or its powers increased or diminished by special laws,’ applies alone and exclusively to private corporations.” ’ ” Id. 512 S.W.2d at 283, quoting from Roberts v. Brown, 43 Tenn.App. 567, 596, 310 S.W.2d 197, 210 (1957). Likewise, the prohibition relative to the extension of credit by a city or county to or in aid of any company, association or corporation under article II, § 29 must be qualified by the “public purpose” criterion. Cf. West v. Tennessee Hous. Dev. Agency, supra, 512 S.W.2d at 283.

The judgment of the Court of Appeals is reversed and the cause is remanded to the Chancery Court of Hamilton County for the entry of a decree in accordance with this opinion and removing the stay, pending appeal, of the transfer of realty by the City of Chattanooga and County of Hamilton to the Chattanooga-Hamilton County Hospital Authority ordered in its final decree.

Costs are adjudged against respondents.

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

      . The City of Chattanooga became a “home rule” municipality in November 1972. In 1953 the “home rule” amendment was added to article XI, § 9 of the State Constitution and, in general, limits the power of the Legislature to enact special, local or private acts affecting particular municipalities and counties in their governmental or proprietary capacities. However, as an exception to this general rule, under article XI, § 9, para. 9, the General Assembly has the power to provide for consolidation of the governmental and corporate functions of a “home rule” municipality with those of the county in which the municipality is located, but before any such consolidation can become effective, local approval by the voters is required. See Op.Att’y Gen. (July 7, 1977).


author: SAM L. LEWIS, Special Judge.

text:
    Ben F. JONES, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    May 4, 1978.
    Certiorari Denied by Supreme Court Aug. 28, 1978.

      Edward G. Thompson, Shelby County Public Defender, Walker Gwinn, Chief Appellate Counsel, Public Defender’s Office, Charles Burch, Asst. Public Defender, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., James D. Wilson, Michael W. Hughes, Asst. Dist. Attys. Gen., Memphis, for appel-lee.
   OPINION

SAM L. LEWIS, Special Judge.

The defendant, Ben P. Jones, and Johnny Chalmers were indicted for the murder of Columbus Davis during the perpetration of a robbery. Chalmers was acquitted. Jones was convicted of second degree murder and sentenced to thirty (30) years. He has appealed from that conviction and assigns six (6) errors.

On August 10, 1975, between 11:00 and 11:30 p. m., DeAutry Brown, Cheryl Wheeler, and Columbus Davis were in Brown’s apartment. Brown and Wheeler were in the bedroom watching television and Davis was in the living room. There was a knock at the front door, Davis answered it, and almost immediately shots were heard. When he heard the shots, Brown got his gun. He then heard furniture being kicked around and turned over in the living room. Some ten (10) to fifteen (15) seconds later Davis came into the hallway (between the living room and bedroom), he was holding his stomach and leaned leaned against the wall. Two men came in behind Davis and Brown fired his pistol in their direction, hitting Davis. The two men retreated into the living room. Brown then stuck his pistol around the door and fired again. One of the two men said, “Some one else is in here”. They then ran from the apartment. Davis died within a few minutes.

Memphis Police Officer Larry Young and his partner, at approximately 11:30 p. m. on August 10, saw a Buick automobile run a stop sign. They pulled in behind the Buick and turned on their blue light in an attempt to stop it. The Buick continued a short distance, came to a stop for a red light, and the driver, Johnny Chalmers, after stopping, started moving through the intersection against the red light. The officers had trouble stopping the Buick as it started moving through the intersection. They were finally able to stop the car and, when they did so, the defendant, who was sitting on the passenger side, threw a 38-ealiber and a 22-caliber pistol out the window. The officers, after stopping Chalmers and the defendant, learned the defendant had been shot in the stomach.

Without objection by this defendant, the officers testified that Chalmers told them he and Jones had gone to some dude’s house to buy some reefers and when they opened the door this dude began shooting at them, hitting Jones in the stomach, that Jones began firing back into the house with a 22-caliber pistol, and that they had then run to their car and left.

DeAutry Brown testified that at the time of this occurrence he was dealing in marijuana.

Doctor Jerry Thomas Francisco testified that he performed an autopsy on the deceased. He found two gunshot wounds, both had entered the right chest; that the cause of death was “multiple gunshot wounds to the chest.” He further testified that either of the wounds would have been sufficient by itself to have represented a cause of death but, having both wounds together in the same body, he was unable to distinguish between the lethality of either bullet taken separately; that neither bullet, taken by itself, would have caused instant death.

One of the bullets taken from the deceased’s body was a 38 caliber and the other a 22 caliber.

The defendant first attacks the sufficiency of the convicting evidence, contending that by convicting him and acquitting his co-defendant, the verdict of the jury is inconsistent.

When two or more defendants are on trial the jury may convict one or more or acquit one or more and the jury’s verdict need not demonstrate rational consistency. Pulley v. State, 506 S.W.2d 164 (Tenn.Cr. App.1973), cert. denied, id. (Tenn.1974).

He further contends that the evidence fails to disclose that he fired the fatal shot. It is his insistence that the cause of death was two (2) gunshot wounds and that the most severe of these wounds was from Brown’s gun.

We discuss this contention along with his assignments of error two and three. By assignment of error two, he complains that the trial court failed to charge his requested instruction, as follows:

“Where it is equally possible and probable that the death resulted from one cause as from another cause and the defendant is not responsible for one of the causes, then any determination of the cause of death can be only speculative and conjectural and the evidence will be held insufficient to support a verdict of guilty.”

Assignment of error three goes to the trial court’s failure to charge the following:

“The fact that a wounded person dies is not conclusive that death resulted from the wound; and the burden is on the prosecution to show beyond a reasonable doubt that such wound caused the death.”

Every person will be held to contemplate and be responsible for the natural consequences of his own act; but he will not be held criminally responsible for a homicide, unless his act can be said to be the cause of death. Fine v. State, 193 Tenn. 422, 246 S.W.2d 70 (1952). The defendant herein set in motion the events that transpired in Brown’s apartment. He set the stage and made Brown an unwilling actor. The shots Brown fired were precipitated by the defendant. The injuries inflicted upon Davis and his resulting death were a natural consequence of defendant’s actions and, as such, he is responsible. Odeneal v. State, 128 Tenn. 60, 157 S.W. 419 (1913).

The tendered charges do not correctly state the law applicable to the facts of this case. The requested instructions would have called for a theory for which there are no facts. The trial judge is not required to charge theories not developed by the proof. Reynolds v. State, 210 Tenn. 310, 358 S.W.2d 320 (1962).

By his fourth assignment he complains that it was error to charge the jury that “it might consider flight of the defendant in determining his guilt.” He does not complain of the phrasing of the instruction, only that the charge was not applicable to the facts. The evidence shows that the defendant and Chalmers “ran to the car and left”, after determining “there is some one else in here”. The circumstances surrounding their apprehension by the officers show an attempt to get away.

It is universally recognized that testimony as to flight, attempted flight, or concealment after the commission of an offense or after one is accused of a crime is relevant evidence which may be shown as a crjminating circumstance, particularly where such conduct is apparently inconsistent with the idea of innocence. 22A C.J.S. Criminal Law § 625 (1961).

DeAutry Brown was indicted in a separate and unrelated occurrence for rape. Prior to Brown’s testimony, the defendant, through his attorney, made it known to the court that for purposes of impeachment he wished to ask Brown “if he had raped Ar-manda Chase”. He assigns as error the trial judge’s refusal to allow the question. Tennessee has adopted Rule 608(b) and 609(a), (b) of the Federal Rules of Evidence. See State v. Morgan, 541 S.W.2d 385 (Tenn.1976). The purpose of these rules is to permit an attack on the credibility of a witness by showing that he is a person of bad character generally. The act of rape is one which would evidence that the perpetrator is not a person who honors his private and social duties or his rights and duties between man and man. Rape is an act of baseness, vileness, and depravity. Rape is contrary to accepted standards of decency and morality. Whether a witness is guilty of rape does go to his truthfulness or untruthfulness as a witness.

We hold that it was error for the trial judge to refuse to allow the defendant to inquire of DeAutry Brown whether he had raped Armanda Chase. However, in view of all of the evidence we are satisfied that this error was harmless beyond a reasonable doubt and did not affect the results of the trial.

By his sixth, and last, assignment of error he says the trial court erred in holding the state could cross-examine the defendant about a recent jury conviction for the offense of armed robbery. He says the trial judge’s ruling prevented him from telling his side of the story. It is further his contention that to have allowed the state to inquire about this conviction would have far outweighed the legitimate probative value in attacking his credibility as a witness.

Rule 609(a) allows evidence of a conviction of a crime if the crime was punishable by death or imprisonment in excess of one year and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant. There was no abuse of the trial court’s discretion.

It is further his contention that since a motion for a new trial was pending the robbery conviction would not be admissible.

A prior conviction is admissible even though a motion or an appeal to reverse the same is pending. McGee v. State, 206 Tenn. 230, 332 S.W.2d 507 (1960).

The judgment of the trial court is affirmed.

DUNCAN and TATUM, JJ., concur.


author: POPE, Justice.

text:
    TRANSPORTATION INSURANCE COMPANY, Petitioner, v. Joe J. MAKSYN, Respondent.
    No. B-7820.
    Supreme Court of Texas.
    Feb. 28, 1979.
    Rehearing Denied April 4, 1979.
    Beckmann, Stanard & Olson, Melvin A. Krenek, San Antonio, for petitioner.
    Hardberger, Branton & Herrera, Inc., Frank Herrera, Jr., San Antonio, Kronzer, Abraham & Watkins, W. James Kronzer, Houston, for respondent.
   POPE, Justice.

The question presented is whether Joe J. Maksyn’s “anxiety depression” qualified as a compensable occupational disease within the meaning of article 8306, section 20, Texas Revised Civil Statutes Annotated. The trial court rendered judgment on a jury verdict for Maksyn for total and permanent incapacity and the court of civil appeals has affirmed. 567 S.W.2d 845. We reverse the judgment and render judgment that plaintiff take nothing, because section 20, as amended to be effective August 30, 1971, affords coverage for repetitious physical, but not for repetitious mental traumatic activities.

Transportation Insurance Company appealed to the district court from the Industrial Accident Board’s award for thirty-six weeks of total disability. Mr. Maksyn cross-acted and recovered a judgment on a jury verdict for total and permanent incapacity. The point before us is that there is no evidence which supports the jury finding “that Joe J. Maksyn has or had an occupational disease as a result of repetitious physical traumatic activities extending over a period of time.” More specifically stated, we must determine whether damage or harm caused by a repetitious mental traumatic activity, as distinguished from a physical activity, can constitute an occupational disease. The issues and relevant instructions submitted to the jury are stated in the footnote.

Joe Maksyn began working as a copy boy for the Express News Publishing Company in 1932 at age 17. He progressively advanced to positions as assistant merchandise manager, display advertising salesman, administrative executive, assistant general manager, and production manager. He described his functions during 1974 as those of an advertising service manager. He had always worked at least fifty-five hours a week, and during about half of the time from 1932 to 1974 he worked sixty-five hours a week. He worked on Saturdays, holidays, parts of Sunday, always took work home and had phone calls about problems at home and at night. Maksyn described his work after 1946 as pressure work, “all of the newspaper work is pressure work.” During 1967 through 1969 he was doing a great deal of late night work, and his chief work was to eliminate errors in the publication. He dealt only with problems. “So the pressure was quite great . . . .” In late August and early September, 1974, his chief assistant was absent a week on an emergency trip; a trainee proved incapable of taking over, so he assumed double detail work. During that time, he missed lunch some days and did not go to dinner. He kept a record for his last week of work which he described as hectic. It showed that he worked a total of eighty-seven hours. He testified that during that time he was weak, had pressure in his head, felt like he was going to blackout, was frightened, felt dizzy, felt all of his energy was gone. His physician told him that he was physically and mentally exhausted. Then for about three weeks, he took some of his vacation time, but did a few hours work at the office on some days. His employer in September, 1974, asked him, then at age sixty, to take an early retirement. Mr. Maksyn’s situation was such that after forty-three years of work, he had succumbed to' the pressure, mental strain, overwork, and exhaustion from his managerial duties which culminated in hypertension, nervousness, vertigo, anxiety depression, and disability to perform his work in publishing two newspapers a day. There was an abundance of evidence that mental stimuli produced Mr. Maksyn’s condition but no evidence that any physical traumatic activity produced it. Our question is whether mental stimuli are enough to bring Mr. Maksyn within the definition of an occupational disease. He makes no claim and there is no proof that he sustained an accidental injury-

An understanding of section 20, which describes a compensable occupational disease, requires a comparison of the whole section, as amended in 1971, with the statute as it was before the amendment. Prior to the 1971 amendment, workers were entitled to compensation upon claims for two kinds of injuries. They could assert claims for an accidental injury and also for an occupational disease. After 1971, the provisions concerning occupational diseases were substantially changed. The pre-1971 section had an exclusive list of compensable occupational diseases; after 1971 the section more broadly made occupational diseases compensable by its comprehensive definition of occupational diseases. The amended statute is:

Sec. 20. (1) Wherever the terms “Injury” or “Personal Injury” are used in ,the Workmen’s Compensation Laws of this State, such terms shall be construed to mean damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom. (2) The terms “Injury” and “Personal Injury” shall also be construed to mean and include “Occupational Diseases” as hereinafter defined. (3) Whenever the term “Occupational Disease” is used in the Workmen’s Compensation Laws of this State, such term shall be construed to mean any disease arising out of and in the course of employment which causes damage or harm to the physical structure of the body and such other diseases or infections as naturally result therefrom. (4) An “Occupational Disease” shall also include damage or harm to the physical structure of the body occurring as the result of repetitious physical traumatic activities extending over a period of time and arising in the course of employment; provided, that the date of the cumulative injury shall be the date disability was caused thereby. (5) Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where such diseases follow as an incident to an “Occupational Disease” or “Injury” as defined in this section. [The numbers for the sentences and the emphases are added.]

We also need to examine the amended statute, sentence by sentence. The first sentence of section 20 has not been changed since 1947. Since that sentence was not changed by the legislature in 1971 at the time it was making major changes in the remaining sentences of the statute, we conclude that the settled law that had developed under the first sentence is also intact. That law was that an injury is defined and understood as one that is an undesigned, untoward event that is traceable to a definite time, place, and cause. In other words it is the result of an accident. Olson v. Hartford Accident & Indemnity Co., 477 S.W.2d 859 (Tex.1972); Texas Employers Ins. Ass’n v. McKay, 146 Tex. 569, 210 S.W.2d 147 (1948); Solomon v. Massachusetts Bonding & Ins. Co., 347 S.W.2d 17 (Tex.Civ.App. — San Antonio 1961, writ ref’d). The first sentence also extends coverage to and includes damage or harm to the physical structure of the body. The term “physical structure of the body” was construed in Bailey v. American General Ins. Co., 154 Tex. 430, 279 S.W.2d 315 (1955), to include coverage for an iron worker who suffered a severe neurosis after seeing his co-worker fall from a scaffold to his death. Bailey, however, became entangled in a cable and escaped death by falling onto the roof of a building. The event produced in Bailey such a disabling neurosis, an anxiety reaction, that he was incapable of pursuing his trade. Bailey recovered compensation on the basis of an accidental injury — not an occupational disease. The court permitted coverage as an accidental injury to the outer limits of the term “physical structure of the body.” The ascertainable single event, though caused by mental stimuli, supported Bailey’s contention that he suffered an accidental injury. The law which permitted such broad coverage for damage to the body as a whole and as an accidental injury, in our opinion, was not changed by the 1971 amendment of section 20 because the first sentence of section 20 was not changed. The meaning of an “injury” and of “physical structure of the body” were left undisturbed by the changes that the legislature made to the rest of section 20 in 1971. Maksyn has not brought himself within the Bailey case that recognized the event as an accidental one, that is, one that was traceable to a definite time, place, and cause.

The second sentence of the amended section is transitional. The sentence, as it existed before 1971, was slightly changed, but its meaning was the same. Both before and after 1971, the sentence recognized that the term “Occupational Disease,” was something different from and in addition to the ordinary meaning of “Injury” and “Personal Injury,” and the sentence announces that “Occupational Diseases” will next be defined which the rest of the statute does. It is apparent, therefore, that the legislature recognized that workers still had the protection for both accidental and occupational injuries after 1971, but the definition of an occupational disease was being changed. The third sentence states that an occupational disease means (1) any disease (2)that arises out of or in the course of employment, and (3) causes damage or harm to the physical structure of the body. The disease must cause harm to the physical structure of the body, and the phrase “physical structure of the body” surely means the same as it means in the first sentence.

The fourth sentence is crucial. It uses the term “physical structure of the body” for the third time, but each time, the statute uses the phrase as the effect or the result of some cause. The cause, “occurring as the result of,” expressed in the fourth sentence, for the damage or harm to the physical structure of the body is stated as “repetitious physical traumatic activities.” The sentence says and means that an occupational disease exists when “repetitious physical traumatic activities” cause damage or harm to the physical structure of the body. The fifth and final sentence states that ordinary diseases of life to which the general public is exposed outside of the employment are not compensable.

By way of summary, it appears, then, that the statute, as it existed before 1971, and the cases with respect to accidental injuries were left unchanged. The legislature in 1971, however, made substantial changes with respect to occupational diseases, by eliminating the exclusive list of compensable diseases and substituting a general definition of the term. Essentially this case is resolved by our understanding of the fourth sentence. Maksyn contends, and the courts below have held that an occupational disease exists not only when a repetitious physical traumatic activity causes damage or harm to the physical structure of the body; he says that it exists also when a repetitious mental traumatic activity causes the damage. The statute does not support the conclusion.

The Sixty-Second Texas Legislature, in its amendment to section 20 of article 8306, made a conscious choice about including or excluding mental causes as well as physical causes. Senate Bill 265, as originally introduced in the legislature, more broadly defined the permissible causes as “repetitious mental or physical traumatic activities.” [Emphasis added.] Senate Journal, 62nd Leg., Reg.Sess.1971, p. 666. The House of Representatives deleted the words “mental or,” and the Senate concurred in the change. House Journal, 62nd Leg., Reg.Sess.1971, pp. 5494-96; Senate Journal, 62nd Leg., Reg.Sess.1971, p. 5378. The legislature chose to include coverage for physical activities that cause the harm or damage; it excluded coverage for mental activities. The deletion of a provision in a pending bill discloses the legislative intent to reject the proposal. Grasso v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S.W.2d 482 (1935). Courts should be slow to put back that which the legislature has rejected. Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 524 (1930).

Further evidence that the legislature was aware of the significance of the inclusion or exclusion of the words “mental or” is found in section 5 of Senate Bill 265, which stated: “It is the express intent of the Legislature in enacting this Act that nothing contained in this Act shall ever be deemed or considered to limit or expand recovery in cases of mental trauma accompanied by physical trauma.” 2 General and Special Laws, 62nd Leg., Reg.Sess.1971, pp. 2549-50. There is no occasion for an interpretation of the full meaning of section 5, but it demonstrates, at least, that the legislature in dealing with section 20 in 1971, was conscious of the differences between mental and physical stimuli. One instance of mental trauma accompanied by physical trauma is illustrated by Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345 (1948). Hood’s accidental injury to his foot and elbow had in turn caused Hood to have a disabling neurosis. He recovered for the neurosis. The legislature apparently wanted to make clear that it was not altering that principle, which, however, is not the problem before us in this case. Mr. Maksyn did not suffer an accidental injury, and he does not so contend.

We conclude that mental trauma, as explained in Olson and Bailey, can produce an accidental injury so long as there is proof of a definite time, place, and cause; there is no precedent that holds, and amended section 20 does not state, that mental trauma can produce a compensable occupational disease. It appears that the Texas Legislature drew its line for compensability for occupational diseases by limiting coverage to those cases in which physical activities cause harm or injury and by denying coverage when mental activities cause the harm or injury. The legislature very well reasoned that physical activities are identifiable and traceable whereas such factors as worry, anxiety, tension, pressure, and overwork are not. In the case of mental activities, there must be the more reliable proof of an ascertainable time, place, and event. Bailey v. American General Ins. Co., 154 Tex. 430, 279 S.W.2d 315 (1955); Traveler’s Ins. Co. v. Garcia, 417 S.W.2d 630 (Tex.Civ.App.—El Paso 1967, writ ref’d n. r. e.); Aetna Insurance Co. v. Hart, 315 S.W.2d 169 (Tex. Civ.App.—Houston 1958, writ ref’d n. r. e.).

The few cases that have arisen in Texas since 1971 under amended section 20 support this conclusion. Repetitious physical traumatic activities that have produced damage or harm have been held compensa-ble in Employers Commercial Union Ins. Co. v. Schmidt, 509 S.W.2d 398 (Tex.Civ.App.—Eastland), writ ref’d n. r. e. per curiam, 516 S.W.2d 117 (Tex.1974); Standard Fire Ins. Co. v. Ratcliff, 537 S.W.2d 355, 357 (Tex. Civ.App.—Waco 1976, no writ); Charter Oak Fire Ins. Co. v. Hollis, 511 S.W.2d 583, 584 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n. r. e.).

The line drawn by the Texas Legislature is consistent with that drawn by the majority of jurisdictions of the country. 1A A. Larson, Workmen’s Compensation Law, § 42.23 at 7-377 (1973). It is stated in Ayer v. Industrial Commission, 531 P.2d 208 (Ariz.App.1975) that “a disabling mental condition brought about by the gradual buildup of emotional stress over a period of time and not by an unexpected injury causing event is not compensable unless accompanied by physical force or exertion.” See also Messex v. Georgia-Pacific Corp., 293 So.2d 615 (La.App.1974); Garmissie v. Pelham Painting Co., 12 A.D.2d 839, 209 N.Y.S.2d 578 (1961); Lawson v. Employer’s Ins. of Wausau, 330 F.Supp. 321 (E.D.Tenn. 1971); contra, Turner v. Southern Califor nia Edison Co., 42 Cal.App.3d 1036, 117 Cal. Rptr. 358 (1974); Baker v. Workmen’s Compensation Appeals Bd., 18 Cal.App.3d 852, 96 Cal.Rptr. 279, 285 (1971); Beveridge v. Industrial Accident Comm’n, 175 Cal.App.2d 592, 346 P.2d 545, 547 (1959); Carter v. General Motors Corp., 361 Mich. 577, 106 N.W.2d 105 (1960). The results in the California cases which permit recovery for mentally traumatic activities are reached rather easily in view of their statute which permits recovery for a cumulative injury caused by mentally or physically traumatic activities. Cal.Lab.Code § 3208.1 (Deering 1976).

All of the proof in this case upon which Mr. Maksyn relies in support of his claim for compensation for an occupational disease is that mental stimuli produced the disease. For the reasons stated, that proof is legally insufficient.

The judgments of the courts below are reversed, and judgment is rendered that the claimant take nothing.

      . “OCCUPATIONAL DISEASE” means any disease arising out of and in the course of employment which causes damage or harm to the physical structure of the body and such other diseases or infections as naturally result therefrom but does not mean ordinary diseases of life to which the general public is exposed except where such diseases follow as an incident to the “occupational disease.” An “Occupational Disease” shall also include damages or harm to the physical structure of the body occurring as the result of repetitious physical traumatic activities extending over a period of time and arising in the course of employment; provided, that the date of the cumulative injury shall be the date disability was caused thereby.
      “DISEASE IN THE COURSE OF EMPLOYMENT” means any occupational disease having to do with and originating in the work, business, trade, or profession of the employer, received by an employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer’s premises or elsewhere.

      ISSUE NO. 1
      Do you find that Joe J. Maksyn has or had an occupational disease as a result of repetitious physical traumatic activities extending over a period of time?
      Answer “Yes or “No.”
      Answer: ves
      If you have answered “Yes” to Issue No. 1, then answer Issue No. 2; otherwise do not answer.
      ISSUE NO. 2
      Do you find that the occupational disease sustained by Joe J. Maksyn arose out of and in the course of employment?
      Answer “Yes” or “No.”
      Answer: ves

      . The phrase “physical structure of the body”, as it is used in the statute, must refer to the entire body, not simply to the skeletal structure ed to the circulatory system or to the digestive system. It refers to the whole, to the complex of perfectly integrated and interdependent bones, tissues and organs which function together by means of electrical, chemical and mechanical processes in a living, breathing, functioning individual. To determine what is meant by “physical structure of the body”, the structure should be considered that of a living person—not as a static, inanimate thing. 279 S.W.2d at 318.

      . Unless from the context the meaning is clearly to the contrary, such terms shall also be construed to mean and include occupational diseases, as hereinafter defined. Tex.Rev.Civ. Stat.Ann. art. 8306, § 20 (1967).


author: PER CURIAM.

text:
    NAVARRO AUTO-PARK, INC., Petitioner, v. CITY OF SAN ANTONIO et al., Respondents.
    No. B-8148.
    Supreme Court of Texas.
    March 14, 1979.
    Rehearing Denied May 1, 1979.
    Harvey L. Hardy, San Antonio, for petitioner.
    Jane H. Macon, City Atty., Crawford B. Reeder, Asst. City Atty., San Antonio, for respondents.
   PER CURIAM.

Navarro Auto-Park, Incorporated, our petitioner, brought suit to enjoin the City of San Antonio from taking any further action in the construction of an off-street parking garage in downtown San Antonio. Navarro sought temporary and permanent injunc-tive relief against the City. After a hearing on the request for a temporary injunction, the trial court denied temporary in-junctive relief. The Court of Civil Appeals affirmed. 574 S.W.2d 582.

We approve the judgment of the Court of Civil Appeals affirming the denial of a temporary injunction. Our approval is based on the standard of review described in two recent Supreme Court opinions, Brooks v. Expo Chemical Co., 576 S.W.2d 369 (Tex.1979), and Davis v. Huey, 571 S.W.2d 859 (Tex.1978). As we stated in both of those opinions, the standard of review in an appeal from a denial of a temporary injunction is whether the trial court abused its discretion in refusing to grant the temporary relief. The sole issue before the trial court is whether the party requesting the relief is entitled to preservation of the status quo of the subject matter pending trial on the merits. Thus, on appeal, the merits of the underlying case are not presented for review. Brooks v. Expo Chemical Co., 576 S.W.2d 369. We find no abuse of discretion in the trial court’s implied finding that petitioner is not entitled to a preservation of the status quo. The application for writ of error is refused, no reversible error.


text:
    Homer G. MAXEY et al., Petitioners, v. TEXAS COMMERCE BANK OF LUBBOCK, Texas, Respondent.
    No. B-8010.
    Supreme Court of Texas.
    March 14, 1979.
    Rehearing Denied May 2, 1979.
    Simon & Simon, Harold D. Hammett and Mike Liles, Fort Worth,, for petitioners.
    Jones, Trout, Flygare & Moody, Charles B. Jones, Lubbock, Shafer, Gilliland, Davis, Bunton & McCollum, Inc., Perry Davis, Jr. and James M. O’Leary, Odessa, for respondent.
   PER CURIAM.

The trial court granted Homer G. Maxey and five other plaintiffs a judgment following a jury trial whereby they recovered substantial damages from Texas Commerce Bank of Lubbock, Texas because of Bank’s failure to exercise good faith in a private foreclosure sale of stock in plaintiffs’ two closely held corporations. The court of civil appeals concluded that the jury’s finding to the special issue inquiring as to the amount of the liabilities of Plaza Building Corporation at the time of the foreclosure sale was against the overwhelming weight of the evidence and reversed and remanded the cause for a new trial. 571 S.W.2d 39.

This Court does not have jurisdiction to pass upon the fact question of the great weight and preponderance of the evidence. Tippett v. Brannon, 493 S.W.2d 511 (Tex.1973). We therefore refuse the application for writ of error, no reversible error. In doing so, we express no opinion as to the correctness of the holding by the court of civil appeals that the award of prejudgment interest on the amount of actual damages recovered by plaintiffs is limited to the rate of six (6) percent per annum.


author: GREENHILL, Chief Justice.

text:
    RAILROAD COMMISSION of Texas et al., Appellants, v. CHARLIE PHILLIPS TRUCKING COMPANY, INC., et al., Appellees.
    No. B-7667.
    Supreme Court of Texas.
    March 28, 1979.
    Mark White, Atty. Gen., Joyce Beasley, Asst. Atty. Gen., Austin, Scurlock, Binion, Brackett & Oldham, Inc., Clint Oldham, Fort Worth, for appellants.
    Jerry C. Prestridge, Austin, for appellees.
   GREENHILL, Chief Justice.

This is a direct appeal by Rayburne Sand, Incorporated, and the Railroad Commission from a trial court judgment declaring an order of the Railroad Commission to be invalid and permanently enjoining the Commission from putting the order into effect.

The Railroad Commission’s order granted Rayburne Sand, Incorporated, a Specialized Motor Carrier Certificate to transport various construction materials to and from certain areas in five Texas counties. Charlie Phillips Trucking Company, Inc. and its parent company, Trans-Texas Trucking Corporation, protested the granting of this certificate and appealed the order to the District Court.

After examining the evidence presented at the hearing before the Railroad Commission, the trial court concluded that the Commission’s order granting the certificate was invalid for three reasons: (1) there was no substantial evidence on the inadequacy of the existing service, on the public necessity for the proposed service, or on the promotion of public convenience as a result of the proposed service; (2) the order failed to set out full and complete findings on the need for the service authorized under the order or on the inadequacy of the service of existing carriers; (3) the Commission’s order granting the certificate was arbitrary and capricious. Pursuant to these rulings, the trial court permanently enjoined the Commission from taking any action to effectuate its order. We agree with the trial court’s conclusion that there was no substantial evidence to support the Commission’s order; and, accordingly, we affirm the judgment of the District Court.

Article 911b, section 5a, subsection (d) provides that the Railroad Commission may not issue a specialized motor carrier certificate unless there is substantial evidence of the following presented at the hearing on the application:

(1) that the services and facilities of the existing carriers serving the territory or any part thereof are inadequate; (2) that there exists a public necessity for such service, and (3) the public convenience will be promoted by granting said application.

Upon a review of the entire record before us, we conclude that there was not substantial evidence that the carrier services available in this five-county region are inadequate or that there exists a public necessity for such new service by Rayburne Sand. Thus, the first two statutory requirements have not been met.

To understand the specific evidence that the Commission and Rayburne Sand contend meets the requirements of article 911b, it is necessary to summarize briefly the events that took place at the hearing on Rayburne Sand’s application. Its original application for a certificate requested authority to transport various building materials between all points in Johnson, Ellis, Hill, Hood and Bosque Counties. After testimony from several protesting carriers who provided service to that area, Rayburne Sand amended its application to limit the requested authority to transportation of crushed limestone base, sand (except silica sand) and gravel from (1) the facilities of Arnold Industries and Round Rock Lime Company at or near Blum, Texas, to points in Johnson County and from (2) the facilities at or near Park Road 21, approximately sixteen miles west of Cleburne, to points in Johnson, Ellis, Hood, Hill and Bosque Counties. Upon presentation of this amended application, all protesting carriers except Charlie Phillips Trucking Company and its parent company withdrew their protests.

Rayburne Sand then proceeded to present the testimony of various persons who resided in the five-county area and who used the materials listed in the amended application. The substance of this testimony pertained basically to two matters: (1) the witnesses’ satisfaction with the services and materials provided by Rayburne Sand and (2) their dissatisfaction with the services and materials provided by Charlie Phillips Trucking Company.

Finally, Charlie Phillips testified on behalf of his protesting carriers, Charlie Phillips Trucking Company and Trans-Texas Trucking Corporation. His testimony consisted primarily of a description of the facilities and equipment he had available for carrier service in the five-county area.

The evidence presented that comes closest to supporting the statutory requirements of inadequacy of existing service and necessity for the proposed service is described in the following fact findings made by the Commission:

14. Many of Worth Building’s jobs are small, requiring only one or two truckloads of the involved commodities. Worth Building Company called upon protestant Charlie Phillips for the delivery of a load of sand to a job in Joshua, Texas, but could not get the materials delivered at the time requested.
34. In 1975, Mr. Shipman owned some tractor-trailer rock trucks, 2 or 3 of which were leased to protestant Charlie Phillips. During this period, Mr. Phillips refused loads of limestone tendered to Mr. Ship-man because they involved 1 or 2 truckload jobs.
39. If the application were denied, Coleman would not use the services of protestant Phillips, but would purchase its own equipment for the movement of these commodities.
46. If this application is denied, Holiday Homes would not utilize the services of protestant Charlie Phillips.

The businesses and individuals mentioned in these findings are residents of the five-county area who use the materials listed in Rayburne Sand’s application.

The most that can be said of this evidence is that it indicates that there is some customer dissatisfaction with the carrier service provided by Charlie Phillips Trucking Company. Article 911b requires more; i. e., substantial evidence of the “inadequacies of the services and facilities of the existing carriers” and the “public need for the proposed service.” See Miller v. Railroad Comm’n, 363 S.W.2d 244 (Tex. 1962). Thus, there must be presented at the hearing substantial evidence which indicates that the existing services and facilities in the area are inadequate to meet the public need. There is no substantial evidence that the existing services of carriers other than Charlie Phillips Trucking Company are insufficient to satisfy the public need. Further, the record does not show that Charlie Phillips Trucking Company is the sole carrier providing service in the five-county area. In fact, the testimony of the withdrawing protesting carriers is to the effect that there are several carriers providing service in the general area and that competition among carriers for business is keen.

Rayburne Sand and the Commission contend that evidence of inadequacy in the existing service of the one protesting carrier is sufficient. We do not agree. The statute speaks to the “existing carriers,” not merely to those who protest the granting of the application. The purpose of the statute is to serve the public interest, and the Legislature has concluded that this interest is best served by a showing of inadequacy in the existing service, not merely by a showing of some customer dissatisfaction with one carrier.

Rayburne Sand and the Commission additionally contend that the withdrawal of the other protesting carriers after the application was amended constitutes evidence of the factors required by article 911b. They cite three federal motor carrier cases as authority. The Interstate Commerce Commission rule cited in these cases is that the withdrawal of protests and opposition is an indication that existing motor carriers do not expect to suffer any material detriment from a grant of the authority requested. Such a rule does not control the statutory requirements of article 911b. An indication that withdrawing protesting carriers do not expect to suffer harm from the granting of the application does not constitute evidence that the existing carrier services are inadequate to meet the public need.

We conclude that the evidence presented at the hearing on the application does not constitute substantial evidence that there is an inadequacy of existing services or that there is a public need for the proposed service.

The judgment of the District Court is affirmed.

      . All statutory references are to Vernon’s Texas Revised Civil Statutes Annotated. The quoted provision is in subsection (d).

      . Coldway Food Express, Inc., Ext.—General Commodities, 124 M.C.C. 1 (1975); J. V. McNichoias Transfer Company, Control—Tom’s Express, Inc., 122 M.C.C. 786 (1977); West Bros., Inc., Ext.—U. S. Highway 11, 98 M.C.C. 571 (1965).