author: GUNN, Judge.

text:
    Charles PONCIROLI and Standard Refrigeration Service, Inc., Respondents, v. Ruth WYRICK, Appellant.
    No. 39476.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 31, 1978.

      Robert H. Burns, John H. Marshall, Clayton, for appellant.
    Robert A. Wulff, Amelung, Wulff & Wil-lenbrock, St. Louis, for respondents.
   GUNN, Judge.

On June 27,1974, while driving a company van in his capacity as sole proprietor of Standard Refrigeration Service, Inc., plaintiff-respondent Charles Ponciroli was involved in an automobile accident. Defendant-appellant Ruth Wyrick, proceeding south on Gravois Avenue, allegedly made an illegal left turn without yielding the right of way to the north-bound plaintiff. In the resulting collision, Ponciroli sustained a fracture of the right wrist and respondent Standard Refrigeration suffered property damage both to the van and to the equipment that it carried. On September 20, 1974, only two weeks after the plaster cast was removed from his first injury, plaintiff broke the wrist again, this time one inch below the original fracture. As he was driving his van across rough railroad tracks, plaintiff claimed that he lost his grip on the steering wheel and caught his right wrist between the gearshift lever and the steering wheel’s rapidly rotating cross-spoke. He attributed the mishap to a weakness in grip strength following weeks of immobility in a cast. On Ponciroli’s request for damages suffered in both the June 27th and September 20th incidents, the jury returned a verdict of $15,000 in his favor. $1,306 was awarded to Standard Refrigeration for the damage to the van. Defendant appeals from the verdict for personal injuries, alleging essentially that plaintiff failed to demonstrate a causal connection between the two accidents and that the trial court erred: (1) when it sustained respondent’s objection to defendant’s hypothetical question regarding the causal connection; (2) when it submitted plaintiff’s verdict director; and (3) when it refused defendant’s submitted instruction seeking to withdraw the September 20 incident from jury consideration. We affirm.

Missouri follows the general rule that a person who has been injured due to the negligence of another is entitled to recover all damages proximately traceable to the initial negligent act, including any subsequent aggravation of the injury which follows as the natural consequence of the original harm. Recovery is available in the latter circumstances even though some intervening agent may have aided in the result. Chaussard v. Kansas City Southern R. Co., 536 S.W.2d 822 (Mo.App.1976). Defendant does not challenge the jury’s finding that her negligence and the concomitant automobile collision were the proximate cause of plaintiff’s first fracture. Rather, she maintains that plaintiff failed to adduce the medical expert testimony needed to establish a causal connection between the June 27, 1974 accident and the September 20th fracture. She complains that laypersons or the jury panel could not have been sufficiently knowledgeable in the fields of physiology and medicine so as to determine, without pure speculation or guesswork, whether the fracture of September 20 was the proximate consequence of her negligence. Further, she argues that the trial court erred in sustaining plaintiff’s objection to a hypothetical question regarding causality which was presented to the defense expert. Thereby, she argues that the jury was deprived of at least one doctor’s opinion as to whether the second fracture was proximately caused by the first.

The objectionable hypothetical question consisted largely of a recitation of un-controverted facts: that plaintiff was involved in an automobile accident on June 27,1974; that his injury was diagnosed as a fracture of the right wrist, and was treated by applying a cast; that he was essentially asymptomatic when the cast was removed; that on September 20, 1974 he caught his wrist between the steering wheel spoke and the gearshift lever; that the result was a second fracture of the wrist one inch below the site of the initial break. The ultimate question elicited an objection, however:

Q. [Defendant’s attorney]
Doctor, can you state with reasonable medical certainty as to whether that first fracture had any bearing upon the occurrence of that second fracture?
[Plaintiff's attorney]: I'll object to that question on the basis that that is a question of fact and so that is within the province of this jury and not something based strictly on medical testimony, and therefore it does not call upon any opinion by an expert witness, and is something that should be decided by a jury.

The court sustained the objection on the ground stated by and for the use of the word “bearing.” Defendant’s attorney tried again:

Q. Doctor, let me rephrase that last question. Would the second fracture in any way be caused by the first fracture?

Counsel for the plaintiff objected on the same ground and was sustained. Defendant’s attorney attempted to present the hypothetical a third time:

Q. Doctor, with the first fracture having good healing at the time of the removal of the cast by Dr. Miranda, and with the same question which I have previously asked regarding this hypothetical, and the man is asymptomatic at the time the east was removed, and on September 20th he has this second accident, would the first fracture which this man suffered in any way play a part, would it have any effect upon this second fracture, or could it in any way help to cause this second fracture?

Counsel for the plaintiff objected again, this time complaining additionally that the use of the word “asymptomatic” was misleading, as evidence had been presented to establish that the plaintiff still complained of tenderness in the wrist at the time that the cast was removed. Again, the objection was sustained. Finally abandoning the hypothetical, defendant’s attorney asked the doctor whether he would have expected the second fracture to occur at the same site as the first, assuming there was still a weakness at the point of the initial injury. The doctor affirmed the proposition.

This exchange between the attorneys and the arguments presented in the briefs lead us to conclude that defendant has misconstrued plaintiff’s approach to the case. The theory which defendant sought to dispel before the jury through the hypothetical questioning was that the first fracture left plaintiff’s arm in a structurally weakened condition, thereby rendering plaintiff more susceptible to another fracture. She argued that the second fracture was not causally connected to any negligence in making an illegal left turn on June 27th but was instead the result of a totally independent cause. And she sought to lead the jury to this conclusion by establishing that the second break should have occurred in the same location as the first if there had been a connection between the two.

Plaintiff, on the other hand, contended that defendant’s negligence caused the first accident and, thereby, his fractured wrist. After the cast was removed, plaintiff’s wrist strength was considerably diminished. The weakened condition of his wrist, a condition directly linked to defendant’s negligence, caused him to lose his grip on the steering wheel and injure himself further. That the second injury was a broken wrist was merely incidental to plaintiff’s cause of action. The important factor was that the first accident caused the second accident to occur. Thus, whether or not a broken bone might be more likely to happen at the site of a previous break, the substance of defendant’s hypothetical, was immaterial.

There are many instances when a question of fact is so manifestly technical or complex that no jury should be permitted to resolve it in the absence of expert testimony. See, e. g., Kimmie v. Terminal R.R. Ass’n of St. Louis, 334 Mo. 596, 66 S.W.2d 561 (1933); McKinley v. Vize, 563 S.W.2d 505 (Mo.App.1978); Harrison v. Weller, 423 S.W.2d 226 (Mo.App.1967); Bertram v. Wunning, 385 S.W.2d 803 (Mo.App.1965). But it is also fundamental legal rubric that expert testimony should not be permitted where the jurors themselves are able to draw correct conclusions from the facts proved. Sampson v. Missouri Pacific R. Co., 560 S.W.2d 573 (Mo. banc 1978); McKinley v. Vize, supra; Holtmeyer v. Scherer, 546 S.W.2d 29 (Mo.App.1976). Defendant’s query, whether physiological changes in a wrist once broken will result in a penchant toward recurring fractures, presents an issue peculiarly appropriate for expert opinion. Yet, the question of fact for which plaintiff sought an answer seems to be well within the common knowledge of the laity. A juror can discern, without the aid of medical testimony, whether plaintiff’s wrist would still exhibit weakness two weeks after his cast had been removed. Since the technical answer which defendant sought to establish was immaterial to plaintiff’s theory of recovery, error, if any, committed by the exclusion of the testimony, was harmless. McClendan v. Johnson, 337 S.W.2d 77 (Mo.1960); Blue Ridge Bank v. State Banking Board, 509 S.W.2d 763 (Mo.App.1974).

While the questioner may hypothesize a question to present his theory of the case, it must bear some relevancy to aid the jury in its determination of the issues. Odum v. Cejas, 510 S.W.2d 218 (Mo.App.1974); Gavan v. H. D. Tousley Company, 395 S.W.2d 266 (Mo.App.1965). We have already noted that the hypothetical posed by defendant was foreign to the true issue in the ease, and the trial court is vested with substantial discretion in determining whether to accept or reject expert testimony and opinion evidence. McKinley v. Vize, supra; Holtmeyer v. Scherer, supra; Kim Mfg., Inc. v. Superior Metal Treating, Inc., 537 S.W.2d 424 (Mo.App.1976). Under the circumstances here, we find no abuse of the trial court’s discretion in rejecting the opinion testimony of defendant’s expert.

Defendant next claims that the trial court erred in submitting plaintiff’s damage instruction, MAI 4.01, modified. She complains that the portion of the instruction which refers to damages sustained on September 20, 1974 was not supported by the required medical expert testimony, and she bolsters this claim with a reiteration of her earlier argument.

Plaintiff’s testimony, if believed, concerning the weakness in his wrist prior to the September 20 accident, establishes the necessary causal connection. Again, we hold that there was no need for additional medical testimony on the point. Consequently, defendant’s third argument must also fail. The trial court did not err when it refused to give an instruction to withdraw evidence of injuries from the September 20th accident on the ground that plaintiff failed to establish proof of proximate cause.

Affirmed.

REINHARD, P. J., and CLEMENS, J., concur.

      . If you find the issues in favor of Plaintiff Charles Ponciroli, then you must award the Plaintiff Charles Ponciroli such sum as you believe will fairly and justly compensate him for any damages you believe he sustained and is reasonably certain to sustain in the future as a direct result of the occurrence of June 27, 1974, and such damages as you believe he sustained in the occurrence of September 20, 1974, if you believe such injuries were either caused or contributed to by the injury sustained in the occurrence of June 27, 1974. (MAI 4.01, modified)


source: Caselaw Access Project

author: CRIST, Judge.

license: Public Domain

text:
    Jerry DAVIS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 40140.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 31, 1978.
    Huck & Fasten, Inc., Thomas C. Mum-mert, III, St. Louis, for movant-appellant.
    John D. Ashcroft, Paul Robert Otto, Gregory W. Schroeder, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas C. Muldoon, St. Louis, for respondent.
   CRIST, Judge.

Jerry Davis pleaded guilty to a charge of Illegal Possession of a Controlled Substance, Schedule I, Heroin. He was sentenced to six years imprisonment. He filed a Rule 27.26 Motion to withdraw his guilty plea to vacate and set aside the sentence.

Defendant contends that he was denied effective assistance of counsel in that his counsel created a conflict of interest by representing him and a co-defendant without his knowledgeable consent; and, that his plea of guilty was not voluntary because induced by mistake, misapprehension, undue persuasion, misinformation and was made without a full understanding of the nature of the charge against defendant. We disagree.

In September 1976, the defendant and his wife Marsha Davis were arrested for Possession of a Controlled Substance, Schedule I, Heroin. The arrest took place at their residence. On the day of the arrest several police officers, after knocking on the door, broke into their home and confiscated a capsule later determined to contain .1 gram of heroin.

On May 25,1977, defendant and his attorney appeared before the Circuit Court of the City of St. Louis in order to change his prior plea of not guilty to one of guilty. At this hearing defendant stated that the heroin was on the floor in a room occupied by him and his wife, and that he knew that the heroin was on the floor. His attorney stated that the case could present a joint-possession case whereby the state would have some difficulty proving knowledge or intent, but that the police report contained a confession of the defendant. The defendant had two prior felony convictions and his attorney believed that the likelihood of his conviction was ninety-nine percent. Further, his attorney stated that it would be in defendant’s best interest to plead guilty to the charge as he did have knowledge of the heroin and it was his.

The court carefully explained to defendant the consequences of pleading guilty. The defendant indicated that he made his decision to plead guilty independently, without threat, pressure or force. The court told defendant the elements of the crime for which he was accused. The defendant said that he understood the elements which the state would have to prove under a plea of not guilty. Nonetheless, he indicated his desire to plead guilty.

On January 27,1978, an evidentiary hearing was held by reason of defendant’s Rule 27.26 Motion. At the hearing defendant again testified that he and his wife were arrested for possession of heroin at their joint residence. Marsha Davis testified that no drugs were found on defendant. Defendant testified that his attorney of choice represented both him and his wife. He stated that the attorney never mentioned a possible conflict of interest regarding his representation of a defendant and co-defendant, nor did he discuss the state’s burden of proof when co-defendants are involved.

The court found that the defendant’s attorney adequately, effectively and competently represented him, and that his plea of guilty was voluntarily made with a full understanding of the consequences of his plea. The court also determined that there was no conflict of interest in the same attorney representing the wife of defendant under a charge arising out of the same transaction. Defendant’s Rule 27.26 Motion was overruled.

Defendant’s first point is that he was denied effective assistance of counsel in that defendant’s attorney created a conflict of interest by representing defendant and a co-defendant in a charge of Possession of a Controlled Substance, Schedule I, Heroin, without the knowledgeable consent of defendant. The co-defendant was the wife of defendant. The defendant and his wife jointly hired their attorney. There was no evidence showing a detriment to the defendant or an advantage to his wife by reason of the dual representation. For the reason that they both hired the same attorney and paid him jointly, the defendant was informed of and consented to the dual representation. Ciarelli v. State, 441 S.W.2d 695 (Mo.1969). Further, where a guilty plea has been entered, the determination of adequacy of counsel is immaterial except to the extent that it bears on the issue of its voluntariness and understanding. White v. State, 530 S.W.2d 444 (Mo.App.1975). Accordingly, we rule this point against the defendant.

Defendant’s other point relied on is that: “The trial court’s finding that appellant’s plea of guilty was voluntarily [made] was clearly erroneous in that the plea was induced by mistake, misapprehension, undue persuasion, misinformation and made without the full understanding of the nature of the charge against appellant.”

Rule 84.04(d) provides in part: “The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous

This rule is not satisfied by merely stating what the alleged error is claimed to be. The point must also state “wherein and why” the action or ruling of the trial court is claimed to be erroneous.

The appellate court has no duty to search out the argument portion of a brief to determine “wherein and why” the action or ruling of the trial court is erroneous. Nothing is preserved for review. State v. McClain, 541 S.W.2d 351 (Mo.App.1976) and Adkins v. State, 560 S.W.2d 67 (Mo.App.1977).

In any event, defendant’s allegation that he was coerced, misled or was unaware of the elements of the charge does not have merit. Taylor v. State, 539 S.W.2d 589 (Mo.App.1976); State v. Wiley, 522 S.W.2d 281 (Mo.banc 1975); Hulstine v. State, 533 S.W.2d 228 (Mo.App.1975) and State v. Zimpher, 552 S.W.2d 345 (Mo.App.1977). We have reviewed the record for plain error under Rule 84.13(c), and hold that defendant has suffered no manifest injustice or miscarriage of justice.

The judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


text:
    MARRIAGE OF Eileen Jane EBINGER and John Richard Ebinger. Eileen Jane EBINGER, Respondent, and John Richard EBINGER, Appellant.
    No. 39526.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 7, 1978.

      Robert S. Allen, Richard A. Aherns, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for appellant.
    Frederick H. Schwetye, II, Jenny, Cole & Eckelkamp, Union, for respondent.
   GUNN, Judge.

The husband in his appeal in this dissolution of marriage proceeding complains of trial court error in the distribution of marital assets and of the award to the wife of her attorney’s fees. Specifically, his plaint is that the award was based on a value of property contrary to stipulation between the parties with court approbation; that the division was based on a single instance of misconduct by the husband; that it exceeded the wife’s own request; that there was no showing of the wife’s inability to pay her own attorney’s fees after the property distribution. We reverse and remand.

The parties were married in 1949 and separated in 1976. Six children were born of the marriage, with all but two fully emancipated and living outside the family home. Two minor sons resided with the wife. The wife had never held a job, nor was she trained for any particular employment, although during the period of separation she had taken training to be a medical assistant but had no prospects of employment. Central to the dispute before us is the real estate held by the wife and husband as marital property — an improved 68 acre tract of land in Franklin County and a cabin, also in Franklin County. Both parties agreed that the unencumbered cabin property had a value of $25,000. At trial the parties stipulated that the 68 acre tract with house had a value of $100,000 encumbered by an $80,000 mortgage, for a net value of $20,000. The trial court found the value of the real estate to be $25,000 for the cabin and $60,000 net value for the house and 68 acre tract. After awarding child support of $37.50 per week for each of the two minor children placed in the wife’s custody and $200 per month for her maintenance, the trial court awarded the wife the cabin and the first $30,000 of net proceeds from the sale of the 68 acre tract with the house and its personalty. Additionally, the husband was ordered to pay the wife’s attorney’s fees of $5,320 and $1,760 owed on a pendente lite order. In the course of its findings of fact the trial court stated:

“The conduct of respondent [husband] during the marriage and during the pend-ency of this action has been reprehensible. Caribbean vacations with a girl friend while wife and children suffered is the sort of behavior condemned in conservative Franklin County.”

The husband first contends that by reason of the stipulated value of the improved 68 acre tract at $100,000 subject to an $80,000 mortgage, the trial court was in error in finding a $60,000 net value for the property. The record shows such an oral stipulation between the parties, which was concurred in by the court, as follows:

Q. [Wife’s attorney] Do you have an estimate at this time as to the fair market value of that residence and sixty-eight acres?
A. [Wife] A hundred thousand dollars.
Q. In addition to that—
MR. ALLEN: [Husband’s attorney] Your Honor, I think we might save some time here. The amazing part of this case is the parties were able to agree on one thing. They both list the appraised value as a hundred or in that — did you say a hundred?
THE WITNESS: Yes.
THE COURT: She said a hundred.
MR. ALLEN: And that’s what we have it appraised at in our minds. There is another parcel of property which I think Mr. Schwetye might want to detail and have described. But according to Answers to Interrogatories both parties evaluate that at $25,000.
MR. SCHWETYE: [Wife’s attorney] That’s correct, Your Honor. We can enter that stipulation.
THE COURT: Then let’s stipulate as to the value of the real estate. The homestead [68 acre tract] is worth a hundred grand the cabin is worth twenty-five?
MR. SCHWETYE: That’s correct.
MR. ALLEN: And I think we might further save time. On this tract of land and house there is a mortgage of $80,000.
MR. SCHWEYTE: That’s correct, Your Honor.

Later, during his cross-examination, the husband gave the following testimony relating to the range of value of the 68 acre tract:

The range would be from $120,000 to $180,000. Depending on when it’s sold, the conditions of sale, and more important than anything, the condition of the house and premises.

The trial court obviously grasped this testimony and from it determined that the 68 acre tract had a net value of $60,000. This determination is in substantial conflict with the stipulation of the parties — concurred in by the court — that the net value of the property was $20,000. We hold that the trial court was in error in its deviation from the stipulation. While the stipulation was orally made, it was done in open court and had the same effect as a written stipulation. City of St. Louis v. Londoff, 518 S.W.2d 312 (Mo.App.1975). It is palpable that the stipulation was entered into by the parties free from any fraud, duress or mistake; it involved only a factual issue and was under court supervision. Hence, the parties and the trial court were bound by the agreement. Pierson v. Allen, 409 S.W.2d 127 (Mo.1966); State v. Jones, 539 S.W.2d 317 (Mo.App.1975) appeal after remand, 549 S.W.2d 925 (Mo.App.1977); Landers v. Smith, 379 S.W.2d 884 (Mo.App.1964); Hanchett Bond Co. v. Glore, 208 Mo.App. 169, 232 S.W. 159 (1921). Further, the husband’s subsequent testimony regarding the property value, paradoxical to the stipulation, was so speculative and conditional that it offered the trial court nothing by which to deviate from the stipulation and find a net value of the property other than $20,000. There was no substantial basis for the finding of a $60,000 net value. Therefore, the cause must be reversed and remanded for the division of marital property, using the stipulated property values. See State v. Jones, supra.

The husband has raised other points on appeal which we must address. The husband argues that by its award the trial court has ignored the standards promulgated by § 452.320, RSMo Supp. 1975. The husband seizes the trial court’s finding that the Caribbean excursion with a girl friend as surrogate for his family was “condemned in conservative Franklin County” and contends that it forms the sole basis for the trial court’s division of marital property. We agree that if the trial court’s conclusion were based on such a fusty and provincial attitude as to Franklin County’s standards, it would be wrong and a gross misapplication of the law. But we do not so limit the trial court’s finding as related to the single peccadillo of the Caribbean cruise. Initially, the trial court found that the husband’s conduct had been reprehensible. And indeed, even the husband conceded that there was abundant evidence of his misconduct, although he contends there was fault on each side, including his wife’s profligacy. In this court tried case, the trial judge is empowered to believe or disbelieve, reject or accept the evidence before it, including complete acceptance of the wife’s testimony and rejection of the husband’s. Determination of the credibility of witnesses rests with the trial court. In re Marriage of Prenavo, 556 S.W.2d 463 (Mo.App. 1977); Mangan v. Mangan, 554 S.W.2d 418 (Mo.App.1977). We do not view the trial court’s finding of reprehensible conduct— and cause for the husband’s expiation for wrongdoing — as being restricted to the Caribbean cruise. There is more, including the husband’s admission that he was a “big guy and I loosened some of her teeth.” There was also the testimony of the wife that while in a rage, the husband had broken three of her toes; that he had opprobrious drinking habits, was constantly bellicose and physically and verbally abusive of her and the children. There was evidence that during the 27 year marriage, the wife had contributed a $15,000 inheritance to the purchase of the couple’s home and personal effects; that she was unable to support herself by reason of lack of training and age (50 years); that it would be desirable for her to have custody of the children in the family home. Under the circumstances, we cannot see that the trial court failed to comply with the standards of § 452.320. We also note that the division of marital property lies within the discretion of the trial court. Fehr v. Fehr,-S.W.2d-(Mo.App. St.L.Dist., 1978); In re Marriage of Badalamenti, 566 S.W.2d 229 (Mo.App.1978); Seiner v. Seiner, 552 S.W.2d 54 (Mo. App.1977).

The husband contends that the award to the wife was overly munificent and was excessive as being a disproportionate division of the assets. We have held that the trial court erred in setting the basis for the marital property contrary to the stipulation. But the fact that an award might be disparate does not render it improper. All that is required is a just — not equal — division of the property. Fehr v. Fehr, supra; Smith v. Smith, 561 S.W.2d 714 (Mo.App.1978); In re Marriage of Cornell, 550 S.W.2d 823 (Mo.App.1977). As stated in Burtseher v. Burtscher, 563 S.W.2d 526, 527 (Mo.App.1978):

“The thrust of the dissolution law is to treat the marriage as a partnership to which each spouse presumably contributes equally. When the misconduct of one party changes that balance so that the other party must assume more than his or her share of the partnership load it is appropriate that such misconduct should affect the distribution of the property of that partnership. It is logical that if one party to the partnership has, because of the other’s misconduct, contributed more to the partnership, he or she should receive a greater portion of the partnership assets.”

Where, as here, there is conceded misconduct by the husband beyond the excursion in Caribbean waters with a lady friend, the trial court, without abusing its discretion, may award an unequal division of marital assets. See e. g. Arp v. Arp, 572 S.W.2d 232 (Mo.App. K.C.Dist., 1978), where the marital property division was 72 percent in favor of the wife, with the apparent basis for the trial court’s division an illicit romance by the husband.

As the amount of marital property available for distribution is reduced, leaving less for each of the parties, the issue of attorney’s fees is also remanded for the trial court’s consideration. We recognize that the granting of attorney’s fees is vested within the considerable discretion of the trial court with consideration to be given to the wife’s ability to pay. In re Marriage of Buchmilier, 566 S.W.2d 256 (Mo.App.1978); In re Marriage of Dillon, 559 S.W.2d 81 (Mo.App.1977); Ortmann v. Ortmann, 547 S.W.2d 226 (Mo.App.1977). But such fees may be granted even though proof of need is not established. Blair v. Blair, 571 S.W.2d 480 (Mo.App. St.L.Dist., 1978); Zu-biena v. Zubiena, 557 S.W.2d 58 (Mo.App.1977); Beckman v. Beckman, 545 S.W.2d 300 (Mo.App.1976).

The cause is reversed and remanded.

REINHARD, P. J., and CLEMENS, J., concur.

      . It is aphoristic that the husband and wife as property owners — though not real estate experts — are entitled to testify as to the reasonable market value of their property. Krug v. United Disposal, Inc., 567 S.W.2d 133 (Mo.App.1978); State ex rel. Highway Com’n v. Johnson, 563 S.W.2d 100 (Mo.App.1978).

      . Turpin v. Turpin, 570 S.W.2d 831 (Mo.App.1978), is distinguishable from this case. In Turpin, an oral agreement for division of all marital assets was set aside as being in conflict with § 452.325, RSMo Supp.1975, requiring that such agreement be in writing. Here the stipulation related only to property value— not a division of property.

      . The amount of attorney’s fees is not in dispute.


author: CLEMENS, Judge.

text:
    Ralph Barker CLARK, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38961.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 7, 1978.

      William J. Shaw, Public Defender, Stephen C. Moore and Mary E. Fiser, Asst. Public Defenders, Clayton, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Nanette K. Laughrey, John M. Morris, III, Asst. Attys. Gen., Jefferson City, for respondent.
   CLEMENS, Judge.

After an evidentiary hearing the court denied the motion of movant (hereafter “defendant”) for post-conviction relief under Rule 27.26, VAMR. He has appealed.

Defendant pled guilty in 1971 to second-degree burglary. The court suspended imposition of sentence and placed him on probation. Thereafter, the court held a probation revocation hearing, revoked probation and sentenced defendant to ten years’ imprisonment.

In defendant’s Rule 27.26 motion he alleged: Ineffective assistance of counsel at the guilty-plea hearing, that his plea of guilty was not intelligently and voluntarily made and denial of due process at the probation revocation hearing. The court denied the motion but reduced the ten-year sentence to six years and again placed defendant on probation.

By his point II defendant contends he was denied due process when his probation was revoked. By his point relied on he abstractly claims error, without identifying any specifically challenged ruling or stating concisely wherein and why the court erred in denying him due process in revoking probation. The abstract point preserved nothing for review. Rule 84.04(d). Thummel v. King, 570 S.W.2d 679, Mo.Sup., 1978. Even considering defendant’s cited cases they do not help him. He cites Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Those cases are not in point since they concern parole revocation by an administrative, rather than a judicial body, as here.

Viewed as plain error, the point must be denied. See Lett v. State, 550 S.W.2d 899 [3] (Mo.App. 1977) holding: “Appellant’s averments concerning the revocation of his probation are beyond the scope of a Rule 27.26 proceeding.”

By his point I defendant contends the court erred in denying his motion to vacate the original judgment because of an involuntary plea. Movant’s 27.26 motion, however, challenged his plea on another ground—that he was not informed of the elements of the crime. This point is raised here for the first time and therefore is not before us on appeal. See Shoemake v. State, 462 S.W.2d 772 [11-13] (Mo. banc 1971).

By his last point defendant alleges ineffective assistance of counsel. Not only is defendant’s point relied on conclusory, but his evidence failed to show how a fuller investigation would have helped him. Denial of the point was not erroneous. Compare Fritz v. State, 524 S.W.2d 197 [1-3] (Mo.App. 1975).

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: TITUS, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Charles Leon HOPKINS, Defendant-Appellant.
    No. 11009.
    Missouri Court of Appeals, Springfield District, Division One.
    Nov. 8, 1978.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    John S. Pratt, Springfield, for defendant-appellant.
   TITUS, Presiding Judge.

Defendant was jury-convicted of second degree murder but the trial court granted his motion for a new trial. Thereafter, defendant waived a jury and consented to be court-tried upon the transcript of the first trial. On January 24, 1976, without rendering a verdict, the court indicated it believed defendant was guilty of manslaughter and forthwith sentenced him to imprisonment for a term of five years. On May 3, 1977, we set aside the submission, dismissed defendant’s then pending appeal and remanded the cause to the trial court with directions to enter a verdict, receive and rule upon a motion for new trial, if any be filed, and make an entry of final judgment in accordance with Rule 27.20, V.A. M.R. State v. Hopkins, 550 S.W.2d 947, 948 (Mo.App.1977).

Concerning the present appeal (notice filed April 18, 1978), we glean from the transcript (filed October 31, 1978) the following: No verdict of guilty was rendered by the trial court following remand. Nevertheless, on May 9, 1977, defendant filed his “motion to withdraw waiver of jury trial” and on August 10, 1977, filed a motion for a new trial. The matters were heard and overruled on October 5,1977, and subsequently on November 18, 1977, the trial judge “on his own motion disqualifies and requests the Supreme Court to assign another judge.” Thereafter, on April 12, 1978, the special judge assigned by the Supreme Court entered judgment and sentence which provided for defendant’s incarceration for a 5-year term for the crime of manslaughter. Defendant’s oral motion for probation was denied.

As noted, supra, there was no compliance with our remand order because no verdict of guilty was rendered albeit the special judge erroneously assumed such a verdict had been rendered on January 24, 1976, in compliance with our May 3, 1977, remand order, which represents an impossibility. With nothing more involved, we could remand again in hopes of securing rendition of a verdict. However, the above recorded events occurring subsequent to our remand demonstrates that the special judge was powerless to act in the cause.

Rule 79.01, V.A.M.R., provides: “If by reason of his going out of office, death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned . . . , then any other judge sitting in or assigned to the court in which the action was tried may perform those duties . . . .” This rule plainly states that a special judge may act only after a verdict is returned and, to repeat, no such verdict was ever returned. Also, a criminal defendant is entitled to have one judge hear the evidence and pronounce sentence if that be within the province of the court. State v. Davis, 564 S.W.2d 876, 878 (Mo. banc 1978). In this case, the judge who initially heard the evidence at the jury trial and in the second trial via transcript form, has been disqualified, and a special judge cannot now legally sentence the defendant. Consequently, the present appeal must be, and hereby is ordered dismissed with directions to remand the cause for a retrial.

It is so ordered.

FLANIGAN, C. J., and STONE, J., concur.


author: HARBISON, Justice.

text:
    HARRY LEVITCH JEWELERS, INC., Petitioner, v. Barbara Joan Griffin JACKSON et al., Respondents.
    Supreme Court of Tennessee.
    Nov. 27, 1978.
    Maurice Wexler, William F. Kirsch, Jr., Memphis, for petitioner; Heiskell, Donel-son, Adams, Williams & Kirsch, Memphis, of counsel.
    Joe M. Duncan, Memphis, for respondents; Burch, Porter & Johnson, Memphis, of counsel.
   OPINION

HARBISON, Justice.

Petitioner filed a claim against the estate of Albert James Jackson, Jr., deceased, upon a promissory note executed by decedent on September 3, 1974, payable to the order of claimant on or before October 15, 1975.

The personal representatives of decedent excepted to the claim upon the ground that no consideration had been given for the note and that it therefore did not represent a valid claim against the estate.

At a hearing on the exceptions, Mr. Lev-itch, an official of the corporate claimant, identified the note and the signature of the deceased thereon.

By way of defense, the personal representatives offered as a witness an attorney for the decedent, who undertook to testify that the decedent had told him on several occasions that the note was given without consideration and that he did not owe it. Decedent was quoted as saying that he had executed and delivered it to Mr. Levitch as a part of a devious scheme to obtain money from the decedent’s wife, from whom he was separated. On its face the note recited that it was secured by certain jewelry, and the witness quoted the decedent as stating that the latter had planned not to pay the note at maturity, so that the payee thereof could “foreclose” on jewelry belonging to his estranged wife.

Counsel for the claimant objected to the testimony of this witness on two grounds; first, that it was hearsay evidence; second, that the attorney for the decedent was his agent or representative and therefore had such identity with the decedent as to make the witness a “party” within the exclusionary provisions of Tennessee’s “dead-man” statute, T.C.A. § 24-105.

Both the probate judge and the Court of Appeals held that the witness was not a party and that his testimony was not subject to exclusion under the statute referred to. Petitioner does not assign error as to those rulings.

Neither the probate judge nor the Court of Appeals, however, ruled upon the principal ground of the objection—that is, that the testimony was nothing more than self-serving hearsay. Respondent insists in this Court that because the testimony was not barred by the exclusionary statute, it was automatically admissible.

This, of course, is a non-sequitur. The mere fact that the evidence was offered through a witness who was competent to testify, within the parameters of the exclusionary statute, does not mean that everything allegedly told him by decedent was necessarily admissible. Had his testimony represented an admission by the decedent, contrary to the position taken by the decedent or his estate in the present litigation, it probably could have been offered on behalf of the opposing party. It was not offered as an admission, however, but was clearly tendered in an effort to prove the truth of the matter asserted; that is, that the decedent did not owe the debt and there was no consideration for the note.

Counsel for respondent has cited no exception to the hearsay rule or any other basis upon which the testimony would be admissible, nor did either court below do so.

It is fundamental that not every un-sworn, extrajudicial statement by a party litigant constitutes admissible evidence. Such testimony is barred by the hearsay rule, unless it constitutes an exception to that rule or is admissible under some other principle of evidence. Admissions constitute the most familiar exceptions to that rule. However, even self-serving declarations of a party may be admissible as an excited utterance, as an expression of pain, a recital of medical history to a physician, a declaration showing a state of mind, or the like.

The testimony in the present case, even though offered by a witness who was competent under the exclusionary statute, in our opinion constituted nothing more than self-serving declarations, and should have been excluded.

Counsel for the respondent has stated that if this testimony were not admissible, the estate had no other evidence to offer and therefore no defense to the claim asserted on the note. Accordingly the judgment of the courts below is reversed, and the cause is remanded to the probate court with directions to enter judgment on the claim with appropriate interest. All costs are taxed to the estate of the decedent.

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

      . See McCormick, Evidence §§ 262 et seq. (2d ed. Cleary, 1972); Paine, Tennessee Law of Evidence § 54 (1974).

      . See generally 29 Am.Jur.2d, Evidence § 621 (1967).


text:
    CITY OF GREENFIELD et al., Appellants-Plaintiffs, v. Charles T. BUTTS, County Judge of Weakley County, et al., Appellees-Defendants.
    Supreme Court of Tennessee.

    Nov. 27, 1978.
    George C. Thomas, Jr., David H. Welles, George C. Thomas, III, Dresden, Harold T. Brundige, William Michael Maloan, Martin, Robert L. Hearn, Greenfield, for appellants-plaintiffs.
    Harry Max Speight, Dresden, for appel-lees-defendants.
   OPINION

HARBISON, Justice.

This action was brought on behalf of five municipalities situated within Weakley County and by certain officials of those cities challenging a sales tax referendum held by the County pursuant to T.C.A. § 67-3053.

Although a number of other issues were involved, the Chancellor held that none of the parties plaintiff, appellants here, had standing to contest the election under the provisions of T.C.A. § 2-1701. Because we find that the evidence supports the conclusion of the Chancellor on that issue, we affirm his decision and do not find it necessary to deal with the numerous election irregularities asserted by appellants.

The action was instituted as an election contest. The pertinent provisions of T.C.A. § 2-1701 are:

“The incumbent office holder and any candidate for the office may contest the outcome of an election for the office. Any campaign committee or individual which has charge of a campaign for the adoption or rejection of a question submitted to the people may contest the election on the question.”

Some years prior to the Weakley County election, which was held on May 13, 1977, each of the five municipalities had held referenda and had adopted local sales taxes pursuant to the 1963 Local Option Revenue Act, T.C.A. §§ 67-3049 et seq. Under the provisions of that Act, however, counties are entitled to priority over cities, and when a county imposes a local sales tax, it supersedes that levied by the cities. Residents of municipalities within a county are not entitled to vote in a county referendum. T.C.A. § 67-3053(b).

It is apparent that none of the municipal corporations themselves could challenge the election under the provisions of T.C.A. § 2-1701. Nevertheless, officials of these cities were concerned over the loss of revenues which would be sustained if the Weak-ley County referendum resulted in a favorable vote on the enabling sales tax resolution adopted by the quarterly county court.

The individuals who are named as plaintiffs in the present case are the mayors of four of the cities and the vice mayor of the fifth. These officials held two meetings during May, 1977, prior to the county election, and also conferred with their respective municipal aldermen or commissions. At their second meeting they had their city attorneys present for advice and consultation. No minutes were kept of the meetings, but one of the mayors was elected a temporary chairman. All of the cities had adopted their budgets for the 1977-1978 fiscal year, or were in the process of doing so, and they were particularly concerned over the possible loss of revenues during that year if the county sales tax should be adopted.

It is undisputed, however, that at their meeting these city officials concluded that they would not advertise, expend funds, or campaign in any organized way against the adoption of the county sales tax resolution. Instead, the testimony of all of them was to the effect that they would await the outcome of the election and then authorize their attorneys to take such steps as might be necessary either to set aside the election, if it were not properly held, or to protect the city revenues at least for the ensuing fiscal year. The mayors testified that they felt there was considerable confusion among the voters and that many people did not understand the issues. They concluded that their best interests lay in not making an organized effort to defeat the resolution for fear that they might create active support for it. Some of them discussed the issues privately with voters, but none of them, individually or collectively, engaged in any organized campaign with respect to the question presented in the referendum.

Although only a fairly small number of registered voters participated in the election, the resolution was ratified by a favorable vote. The city officials then, individually and also in the names of their municipalities, instituted the present election contest.

The Chancellor was of the opinion that these city officials did not constitute a “campaign committee” or individuals who had “charge of a campaign for the adoption or rejection of a question submitted to the people” within the purview of T.C.A. § 2-1701. We are of the opinion that this conclusion was entirely correct. While this statute does not contain a definition of a “campaign committee” or of a “campaign” regarding a question, we believe that it would be an unreasonable interpretation to hold that a group of individuals, who were not even qualified to vote, could simply agree privately to oppose a referendum and then later contend that they had standing under this statute to contest an unfavorable result.

In the Campaign Financial Disclosure Act of 1975, T.C.A. §§ 2-1001 et seq., a “Political Campaign Committee” is defined as:

. a combination of two (2) or more individuals, or a person other than the candidate, including any political party governing body, whether state or local, receiving contributions and making expenditures, except as provided for in subsection (7) of this section, to support or oppose any candidate or measure or to influence the result of an election, but shall not include a voter registration program;” T.C.A. § 2 — 1002(i).

T.C.A. § 2-1005 requires each candidate and each political campaign committee to appoint a political treasurer and to certify his name and address to the State Librarian and Archivist. In county elections a copy of this notice is to be furnished to the county election commission. The provisions of this statute are applicable whether expenditures or contributions are or are not contemplated.

It is undisputed that appellants did not comply with these statutory provisions or take any other definitive steps with respect to the county referendum, except authorizing their counsel to take legal action if the county sales tax were adopted.

In the case of Moyers v. Sherrod, 525 S.W.2d 126 (Tenn.1975), it was held that a citizens group, organized after an election solely for the purpose of contesting the outcome on the basis of alleged irregularities, did not constitute a campaign committee or individuals in charge of a campaign within the purview of T.C.A. § 2-1701. Although appellants in the present case admittedly did have informal meetings prior to the election, it is apparent that their objective was not to organize a campaign in opposition to the question presented to the voters, but to await the results and thereafter take whatever action appellants deemed to be in the interests of their respective cities.

The judgment of the Chancellor dismissing the action is affirmed at the cost of appellants.

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


text:
    STATE ex rel. ASSOCIATION FOR the PRESERVATION OF TENNESSEE ANTIQUITIES et al., Appellants-Plaintiffs, v. CITY OF JACKSON et al., Appellees-Defendants.
    Supreme Court of Tennessee.
    Nov. 27, 1978.

      James G. Woodall, Jackson, Michael R. Lipscomb, Randi B. Rich, Henderson, for appellants-plaintiffs.
    Robert E. Alderson, Russell Rice, Jackson, for appellees-defendants.
   OPINION

HARBISON, Justice.

In this case appellants challenge the action of the City of Jackson in leasing the “Home of Casey Jones” Museum, a municipally-owned facility, to a private enterprise for profit. The Chancellor sustained the validity of the lease. After careful consideration of the contentions of the parties, we affirm his decision.

The record is, in some respects, meager. The City of Jackson apparently acquired certain real estate situated on West Chester Street, lying within the corporate limits, in 1956. This property had been the residence of a famed railway engineer, John Luther “Casey” Jones, who was killed in a train collision on April 30, 1900. The incident was memorialized and achieved status as a cherished legend of the railroading industry through a popular ballad published some years later.

The deed by which the City acquired the Jones residence is not in the record. However, it is not contended that the City acquired anything other than unrestricted fee simple title to the property. There is no insistence that the instrument of conveyance contained any trust provision or limitation upon the use which the municipal government might make of the land and residence.

We are advised by counsel that at some time after the acquisition of the Jones residence, the City also acquired an adjacent tract on which there has been situated for several years a steam locomotive similar to that in which Jones was killed. This locomotive has been displayed along with the Jones residence and numerous artifacts contained therein, the museum representing the family lifestyle of railroad employees and pieces of equipment, publications, etc., typical of the age of steam railroading in the late nineteenth and early twentieth centuries.

Apparently, although again not explained in the record, the City acquired the right to use the name “Casey Jones” in connection with the operation of this museum. In the lease now under consideration, the City assigned to the lessee such rights as it had under an agreement with the widow of “Casey” Jones. The lease states that that agreement was executed on September 8, 1955, but it is not in the record or referred to in the testimony, so that we have no way of knowing its contents.

Under date of July 1, 1977, and, according to the testimony, pursuant to authority granted by the Board of Commissioners of the City, the subject lease was entered into between the City and a commercial corporation for a term of ten years, with provisions for two additional ten-year extensions. Under the terms of the lease the tenant guaranteed the City a base rental of $1500 per year, against ten percent of the gross annual admission receipts from the museum. The lessee was given the right to remove the residence, the locomotive and all other personal property belonging to the museum, together with any artifacts which were on loan to it, from its location on West Chester Street to premises owned by the tenant near the junction of Interstate Highway 40 and U.S. By-Pass # 45. That intersection is now in one of the busiest commercial areas of the City. The tenant already operates on its premises an “Old Country Store,” an enterprise typical of general merchandising in small towns and rural areas near the close of the nineteenth century. It has also erected and has leased premises for a number of other stores, specializing in jewelry, gifts, and other items of merchandise, the decor of these stores also being in the same general motif. The tenant proposes to operate the Casey Jones Museum on its premises, but as a separate enterprise, with independent accounting for revenues and expenses. The lease requires the tenant to keep the museum and all associated personal property in good repair, fully insured, and to advertise and promote it as a tourist attraction. The tenant is required to keep the museum open to the public throughout the entire year, during reasonable hours.

Appellants do not attack this particular lease as being improvident, uneconomical or unsuitable in any particular sense. There is no contention that any of the appellants, who are citizens and societies interested in historic preservation, had sought and been denied an opportunity to purchase, lease or otherwise operate the museum properties, nor is there any attack upon the formal procedure by which the lease was authorized; that is, absence of a specific enabling ordinance, competitive bidding, or the like.

Rather, the attack is more general and consists of an assertion that since the museum was publicly owned and operated, the City had no legal authority to alienate or dispose of it. It is insisted by appellants that the City had acquired and operated the museum in its “governmental” capacity, and that therefore it could not properly lease the facility for operation by a private commercial enterprise. Appellants do not cite any general state statutes or any provisions of the Jackson charter in support of this contention.

Appellees insisted, and the Chancellor held, that the museum had been acquired by the City solely as a commercial venture, designed to attract tourists into the Jackson trading area. Accordingly the Chancellor concluded that the City held the museum in a “proprietary” capacity and that it had full legal authority to dispose of it as it saw fit.

There was filed in evidence a brief financial summary of the operation of the museum from the years 1956 through 1977. During each of those years, except 1960, the expenses of operation exceeded the gross revenues. Only in the year 1960 was a profit shown, revenues in that year being $11,601 and expenses $10,234, leaving a profit of $1,367. In all other years the deficits ranged from $2,400 to as much as $13,242, not including the initial year of operation, when losses were shown as $55,-571. This, however, apparently included initial investment costs as well as expenses of the first year’s operations.

The museum was operated by the City not only as an attraction for tourists, but as a place of educational and cultural interest to its own citizens and school children. Under the terms of the lease, however, the tenant will be required to continue to operate the museum in essentially the same manner as it had been operated by the City, and at a location much more conducive to patronage by tourists.

Since its acquisition by the City, the museum has been operated on the original residential site, which in 1956 was adjacent to the downtown business and commercial district of Jackson. In the intervening years, with the advent of the interstate highway, intensive commercialization has developed to the north of the City. There have been changes in the character of the neighborhood where the museum was located, this having originally been a residential area typical of the early twentieth century. Now there are only a few residences in the neighborhood, and the construction of a commercial by-pass has rendered access to the museum difficult and less desirable for transient visitors to the area.

Much of the testimony of appellants concerned their interest in preserving the museum at its original site and the possible loss of its recognition by various societies and associations interested in the preservation of antiquities and historic places. As stated previously, however, appellants have not attacked the lease as being improper or unwarranted, in any specific sense, but have simply averred that the City had no power to lease this municipally-owned property to a private corporation.

In this regard we are of the opinion that the contentions of the appellants are not well taken, and that their view of the authority of municipal corporations with respect to public properties is unduly restrictive.

Although most frequently discussed in cases involving municipal tort liability, the terms “governmental” and “proprietary” have historically been used in a wide variety of cases in an attempt to describe the ownership of property and the conduct of activities by municipal corporations. It is therefore possible to find general statements to the effect that municipal corporations may sell or otherwise dispose of property held for “private” or “proprietary” purposes, but may not do so in respect to property held for “governmental” purposes unless expressly authorized by law. See, e. g., 63 C.J.S. Municipal Corporations § 962 (1950); 56 Am.Jur.2d, Municipal Corporations, § 556 (1971).

Although exceedingly difficult to define and to apply to specific cases, these terms have been utilized many times by the courts of this state in ruling upon the validity or invalidity of various transactions entered into by city and county governments. Appellants particularly rely upon the case of Warren v. Bradley, 39 Tenn.App. 451, 284 S.W.2d 698 (1955), in which a city built at public expense an addition to its sewer system. It then attempted to lease that addition to the developer of a subdivision for a term of twenty years, upon his reimbursing the city for its construction costs. The lessee was authorized to charge fees to private property owners desiring to tap onto the sewer system. The city was obligated to maintain the connection between that addition and its principal sanitary sewer system throughout the term of the lease.

In that case the Court of Appeals held that the lease represented an improper exercise of municipal authority and declared it to be invalid. Although there was general language in the city charter authorizing it to sell, lease or dispose of public property, the Court held that:

“. . . this right must be held limited to the property it holds in its proprietary, and not governmental, capacity.” 39 Tenn.App. at 459, 284 S.W.2d at 702.

The Court relied upon two earlier cases which had held that a county government could not properly lease for private purposes space in the register’s office of the county courthouse, Shelby County v. Memphis Abstract Company, 140 Tenn. 74, 203 S.W. 339 (1918), or a part of the courthouse lawn, Henry v. Grainger County, 154 Tenn. 576, 290 S.W. 2 (1926).

The Chancellor cited the case of Nashville Trust Co. v. City of Nashville, 182 Tenn. 545, 188 S.W.2d 342 (1945), in which a city was held not liable for alleged negligence in failing to supply water to a sprinkler system installed in a private building. The building burned, and the city was sued for the fire loss. The Chancellor seemed to interpret that case as holding that the city was engaged in a “proprietary” function, but we do not so understand it. The Court held that even though the city made a special charge to owners of sprinkler systems, its furnishing water for fire prevention was a governmental, rather than a proprietary, function, so that the city could not be held for the alleged negligence of its employees. In addition the Court held that the city could not validly make a contract by which it would incur such liability in an area where the law granted it immunity.

Although aware of its frequent use, we do not find the dichotomy of “governmental” and “proprietary” functions to be particularly helpful from the standpoint of legal analysis or to furnish a satisfactory basis upon which all of the cases can be explained or reconciled.

In the very early case of Mayor and Aldermen of Memphis v. Wright, 14 Tenn. 497 (1834), the City of Memphis laid off part of a dedicated public promenade on the banks of the Mississippi River for use as a steamboat landing, and other parts for the landing of flatboats and similar craft. A penal ordinance was enacted to prevent flatboats from landing in the area designated for steamboats. In a prosecution under this ordinance, the trial judge instructed the jury that if the area in question had not originally been laid off by the proprietors on the town plan as a public landing, then the city could not so designate it and the defendant would not be liable. Reversing, this Court said:

“The public property belongs to the cor-porators, and may be appropriated by them to any use they may think proper. The mayor and aldermen are the representatives of these corporators, and have vested in them all the right to dispose of, or apply to any use they may think proper, the public promenade, public squares, etc., which existed in the original proprietors. If this were not so, a thriving town would be exceedingly crippled in the exercise of its corporate rights. Few persons would have sufficient foresight, in laying off a town, to anticipate and provide everything that was calculated to promote its prosperity and good government. It must, therefore, be among the powers of a corporate town, having by its charter a right ‘to do all things necessary to be done by corporations,’ to lay off new streets, squares, lanes, and alleys, and to construct wharves and other conveniences for the trade and comfort of the citizens, and by ordinances to regulate the manner in which they shall be used. These powers are ‘necessary to be done’ that the prosperity of the town may be promoted, and that its peace and order may be preserved.” 14 Tenn. at 499-500.

Similar language was used in the case of Adams v. Memphis & Little Rock R.R. Co., 42 Tenn. 645 (1866), where the City of Memphis had received outright ownership of seventy-five acres of land, known as the “Navy Yard Property,” by cession from the federal government. The city later undertook to pledge this property and to make it security for fifteen-year railroad bonds, in order to assist in the development of a railroad connecting Memphis and Little Rock, Arkansas. The transaction was upheld despite the fact that the railroad had its terminus on the west bank of the Mississippi River and did not enter the corporate limits of the city. The Court noted that the city was given broad power in its charter to hold, sell, lease and dispose of real and personal property, and the city charter authorized the city to engage in many different corporate activities. The Court stated that municipalities may not apply their property or funds “to any other than ‘corporation purposes’.” Quoting from an earlier case, it said:

“ ‘Every attempt to lay down an exact general rule, by which to determine what is a corporation purpose, must prove nugatory. The question must necessarily be decided in view of the facts of each particular case. And while we do not mean to say, that the judgment of the local government of the town is to be taken as conclusive of the question, whether the object proposed be a legitimate corporation purpose, yet we think it might, in general, be safely taken as prima facie evidence of the fact; for it will, perhaps be found, in most cases, that an intelligent board of aldermen are more capable of forming a correct judgment as to what measures are of a nature to promote, more or less directly, the general interests and prosperity of the town, than any other tribunal.’ ” 42 Tenn. at 655-656.

The Court found that the construction of the railroad conferred very substantial commercial benefits upon the Memphis trade area, and that the mortgaging of the city property to assist in that venture was for a legitimate “corporation purpose.”

In the present case no question is raised as to the legality of the initial acquisition of the “Casey Jones Museum” by the City of Jackson or the propriety of its subsequent use by the City for the combined cultural, commercial and educational purposes shown in the record. It seems to us, therefore, at a minimum, that it was a matter of judgment to be exercised by the duly elected City officials as to whether the continued operation of that facility at a financial loss was or was not in the public interest and as to whether the leasing of the facility for operation under private management was or was not a suitable alternative. We find no abuse of discretion by the City officials in their decision to permit the removal of the residence and artifacts from their original site. The lease amply secures the City in the event of default by the tenant. The City may then terminate the lease on short notice and require the tenant to restore the properties to the original site or to any other public location. No question is raised in the present record as to the solvency or responsibility of the tenant.

Insofar as prior cases have held that cities are without authority to dispose of publicly owned facilities by lease, sale or otherwise, where the properties are held in a “governmental capacity,” we are of the opinion that each case must be examined in the light of its own facts and circumstances. Obviously cities must be and legally are free, within their charter provisions, to dispose of outmoded, surplus or unprofitable properties, where these are not held under a grant imposing a specific trust or other limitation upon ownership or use.

In the present case the Jackson charter expressly confers upon the City, without limitation, the authority:

“To acquire or receive and hold, maintain, improve, sell, lease, mortgage, pledge, or otherwise dispose of any property, real or personal, and any estate or interest therein, within or without the City or State.”

The charter also contains language that its terms are not to be deemed restrictive and that they shall be construed

so as to permit the City to exercise freely any one or more such powers as to any one or more such objects for any one or more such purposes.”

We are not prepared to decide this case solely upon the proposition that the City may have acquired and held the “Casey Jones” Museum, in part at least, in a “proprietary” capacity. On the other hand, we are of the opinion that appellants have failed to demonstrate that the subject lease is contrary to the public interest, that it represents a misuse or abuse of the discretion and authority of the Board of Commissioners, or that it is in any other way ultra vires or beyond the legitimate charter powers of the City.

Accordingly the assignments of error are overruled, and the judgment of the Chancellor is affirmed at the cost of appellants.

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

      . This suit is actually brought as a quo warranto action, and the societies and individuals involved are the relators therein.

      . E. g., City of Memphis v. Bettis, 512 S.W.2d 270 (Tenn. 1974). The Tennessee Governmental Tort Liability Act has generally abandoned the distinction between governmental and proprietary functions insofar as responsibility for torts is concerned. T.C.A. § 23-3307.

      . For a collection of cases on the general subject of leases by municipal corporations, see Annot., 47 A.L.R.3d 19 (1973).


author: DWYER, Presiding Judge.

text:
    Charles PENNINGTON, Jr., Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 8, 1978.
    Certiorari Denied by Supreme Court Nov. 6, 1978.

      Jerry A. Schatz, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Arthur T. Bennett and Kenneth R. Roach, Asst. Dist. Attys. Gen., Memphis, for appellee.
   OPINION

DWYER, Presiding Judge.

This delayed appeal is from a rape conviction with resulting punishment of confinement at thirty years. Appellant’s appeal was affirmed on the technical record by this court on May 21, 1976, 542 S.W.2d 100. A pro se petition for habeas corpus was filed by the appellant in the trial court February 17,1977 and amended by counsel on May 26, 1977. The trial court entered an order on September 30, 1977, where the court found the appellant did not have proper assistance of counsel on appeal and granted, therefore, appellant a delayed appeal, T.C.A. 40-3820. The record is now before us with assignments of error contending the conviction was had contrary to the law.

With assignments attacking the sufficiency of the evidence, we will narrate that evidence as found from our review of this record.

The prosecutrix, Rubystine M. Garrett, was standing on McLemore Street in Memphis awaiting a bus to take her to the Draughon’s Business College located at 253 Madison in that city around 7:40 a. m. on January 8,1974. The appellant drove up in a black Cutlass and asked her if she would like to have a ride downtown and indicated the bus did not run downtown, whereupon she entered his car. When appellant deviated from the route to the business college, Ms. Garrett became frightened and scared; noticing this, the appellant pulled the car behind some apartments and stopped. At that time the appellant threatened her and indicated that he had a gun in his jacket pocket. He then drove her about the City of Memphis and finally parked at an apartment building where he ordered her out of the car. Holding her arm, the appellant guided her up a stairway and entered an apartment. There were three young children inside watching television. The appellant then ordered her back into a bedroom and locked the door. He then disrobed and ordered her to take her clothes off. He pushed her on the bed and committed cunnilingus on her person, then made her commit fellatio on him, and then he penetrated her with his penis. After these acts were consummated he ordered her to get dressed, they returned to the car and he drove her to the business college. When the prosecutrix entered the school she told two women employees of that school she had been raped. They promptly referred her to a Mr. Gray, the director of the school, whereupon she reiterated that she had been raped. This resulted in a prompt complaint forwarded to the police department.

An examination at the hospital failed to reflect any bruises or trauma on the prose-cutrix or sperm in her vagina.

The police took a lengthy statement from her and then drove her about the city enabling her to relocate the apartment where the attack had occurred. When the police went in the apartment the appellant’s wife was there and informed them that she would not permit any kind of search without a warrant. The police then returned to headquarters and the prosecutrix picked the appellant’s picture out of a group of several photographs. The appellant surrendered to the police the following day, and at a lineup held that afternoon the prosecutrix identified the appellant as her assailant.

The appellant did not testify but did offer witnesses that related they saw appellant and the girl walking up the steps and nothing seemed out of the ordinary or unusual.

The evidence assignment: It is settled law that when the appellant attacks the sufficiency of the evidence he has the burden to show on appeal that it preponderates against his guilt and in favor of his innocence. State v. Grace, 493 S.W.2d 474 (Tenn.1973). It is appellant’s assertion here that there were many discrepancies between the prosecutrix’s statement at trial and her testimony given in the city court preliminary hearing. This, however, is tested under well settled rules that the jury resolves all conflicts and discrepancies in the witnesses’ testimony. It is obvious by the verdict that the jury has believed the prosecutrix. Edwards v. State, 540 S.W.2d 641 (Tenn.1976). We see no reason to disturb this finding of the jury. The appellant has not carried his burden and shown that the evidence preponderates against his guilt and in favor of his innocence. This assignment of error is overruled.

Appellant alleges in the next two assignments that the court erred in not granting his motion to quash the indictment on the charge of crime against nature, T.C.A. 39-707, on the grounds that the statute was unconstitutionally vague. With the trial court granting his motion for a new trial on this conviction the matter is not before the court. These assignments therefore have no merit and are overruled.

The appellant contends that the trial court erred in admitting over objection the fresh complaint of the prosecutrix to the employees of the Draughon’s Business College and to the investigating police officers that she had been raped. While this evidence is hearsay, it is admissible as a recognized exception to the hearsay rule. King v. State, 210 Tenn. 150, 357 S.W.2d 42 (1962); Conboy v. State, 2 Tenn.Cr.App. 535, 455 S.W.2d 605 (1970). This assignment is accordingly overruled.

In his next assignment appellant contends that it was prejudicial error for the court to fail to instruct the jury that testimony offered by the witnesses Gray and Officer McCaleb was to be considered as corroborative and confirmatory of the testimony of the prosecutrix and was not to be received as substantive, independent testimony. Since this error was not in the motion for a new trial, it is thereby waived. Hawkins v. State, 543 S.W.2d 606 (Tenn.Cr.App.1976). The appellant contends this meagerness of the charge was plain error. We disagree. Hancock v. State, 1 Tenn.Cr. App. 116, 129, 430 S.W.2d 892, 898 (1968). In the absence of the request for additional instructions, there is no error. T.C.A. 40-2517; Arterburn v. State, 208 Tenn. 141, 344 S.W.2d 362 (1961).

Appellant assigns as error that the trial court’s charge to the jury concerning the weight to be given the prompt complaints of the prosecutrix after the crime occurred, that is, that it may be looked to as corroborative and confirmatory of the pros-ecutrix, was not a correct statement of the law. We disagree. King v. State, supra. There is no merit in this assignment. It is overruled.

In another assignment to the charge appellant contends that the trial court erred in charging the law to the jury concerning how to receive evidence of other crimes. It is his contention that this unduly called attention to appellant not testifying and suggesting that the appellant had a prior record. This came about in the following manner at the trial. The State, in introducing appellant’s photograph, that Ms. Moss identified at the police station on the event date, asked defense counsel if he would like to examine it before it was identified. Defense counsel declined this request and made a general objection to its admissibility. The trial court ruled that as to identification it was relevant, and therefore, admissible. At the jury-out hearing the trial court admonished counsel by informing him that he had the opportunity to view the photograph and to make a specific objection indicating why it was not competent. The State then informed the trial court that the identifying numbers on the photograph would be masked over. Subsequently, when objection was made to the charge on other crimes, the trial court reflected that in an abundance of caution he did not think the jury had ever seen the identifying numbers, but chose to charge the jury on other crimes in the event that there had been any undue suggestion by the masked-over numbers on the photographs. With no evidence in the record of any prior criminal activity of the appellant this gratuitous charge of the court, if error, was harmless. T.C.A. 27-117. This assignment is overruled.

He next assigns that it was error to admit the photograph, with the numbers being masked over. With the photograph being relevant as to her identifying the appellant on the event date and with no evidence that the jury ever saw the identifying numbers on the photograph, there is no error here. This assignment is overruled.

All assignments treated and found to be without merit and overruled, the judgment of the trial court is affirmed.

RUSSELL, J., and ARTHUR C. FA-QUIN, Jr., Special Judge, concur.


text:
    James SMITH, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 10, 1978.
    Certiorari Denied by Supreme Court Nov. 6, 1978.
    Charles E. Baucum, Asst. Public Defender, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Richard S. Maxwell, Asst. Atty. Gen., Nashville, Don A. Dino, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

DWYER, Presiding Judge.

The appellant appeals his conviction of committing the offense of robbery in violation of TCA 39-3901, and resulting punishment at confinement for not less than five nor more than seven years in the State Penitentiary.

The appellant assigns as error that the evidence preponderates against the verdict and that a tainted identification of appellant denied him due process.

The evidence: A Mr. William E. Benson, proprietor of Bennie’s Car Wash, located at the intersection of Guthrie and Thomas Streets in the City of Memphis, was robbed during the early morning hours of May 27, 1977. Mr. Benson, testifying as a witness for the State, related that he was in his car wash at approximately 5:30 to 6:00 a. m. servicing the equipment when he noticed a neatly dressed male black walk across his lot; that when he entered his storeroom to check on the soap bins, this same individual approached him and asked him if he had change for a $5 bill. The witness related that when he was drying his hands in order to determine if he could make change, the individual that approached him grabbed him from behind and told him that he wanted all of his money. When Mr. Benson handed this individual the quarters and dollars that he had in his pocket the individual told him that he wanted it all and then started to rifle Mr. Benson’s pockets. At that time a pistol that Mr. Benson had in his waist started to slip down his pants leg and fell to the floor and the two immediately began scuffling over it. The robber obtained possession of the pistol and struck Mr. Benson about the head, knocking him to the floor. The robber then fled the car wash. When Mr. Benson was satisfied the robber had left he went next door and immediately called the police and gave them a description of the robber and his clothing. A squad car responding to another call in the near vicinity noticed the appellant walking down the street who matched the description as given. When the police pulled over to question him the appellant started running, a chase ensued, and he was arrested within a few minutes. The appellant was placed in the squad car and returned to the car wash where he was positively identified as the robber by Mr. Benson.

The appellant did not testify but he offered two witnesses who testified that appellant was with them on the night preceding the robbery and in their presence until 6:00 a. m. the next morning when they let him out at his girl friend’s house. The girl friend also testifying in behalf of the appellant, related that the appellant was with her in her home until 11:00 p. m. on May 26 and returned to her house at 6:00 a. m. the following morning.

We think the evidence supports the verdict as returned by the jury: (1) the appellant had been identified as the robber at the scene a few minutes after the robbery; (2) the appellant was identified at the trial by Mr. Benson as the robber; (3) the appellant was dressed when the police officers saw him matching the description given by the dispatcher as the clothing worn by the robber. These are but a few of the facts which we think support this verdict. The jury verdict has accredited the theory of the State. It is not the prerogative of an appellate court to reevaluate this testimony. State v. Hatchett, 560 S.W.2d 627 (Tenn. 1978). That verdict has also rejected the alibi defense of the appellant. French v. State, 489 S.W.2d 57 (Tenn.Cr.App.1972). The assignment pertaining to the sufficiency of the evidence is accordingly overruled.

The second and last assignment of error: It is the appellant’s theory that the identification was unduly suggestive and that the return of the appellant to the scene by the police made him a “sitting duck” for identification by the victim, Mr. Benson, and that the procedure employed was basically so unfair that the identification testimony should be excluded for it was a denial of due process. In short, he urges the discarded exclusionary per se rule. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140 (1977), the following language may be found:

“ . . . The ‘central question,’ however, was ‘whether under the “totality of the circumstances” the identification was reliable even though the confrontation procedure was suggestive.’ ” (Emphasis added)

We think that the procedure employed by the police in the instant case was suggestive, for there were no emergency or exigent circumstances present calling for the procedure employed. The Manson court held that the determining factor, or the linchpin, in determining the admissibility of identification testimony is reliability, which includes the following factors found in that authority: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) his degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; (5) and the time span between the crime and the confrontation. Against these five facts is to be weighed the corrupting effect of the suggestive identification itself.

Applying the stated factors to the case sub judice, the trial court found: (1) that it was daylight when the victim, Mr. Benson, observed appellant and his attire for a period of time before the robbery; (2) that the victim when confronted by the robber in the storeroom realized that the robber was the same person that he had observed cross his lot a few moments before; (3) that the clothing description given by the victim and relayed by the police dispatcher to the officers tallied identically with the clothing worn by the appellant when he was apprehended and returned to the scene of the robbery; (4) the testimony revealed that Mr. Benson was not hesitant in his identification of appellant as his robber. Mr. Benson testified that the appellant was returned to the scene of the robbery and was immediately identified as the robber, and further that Mr. Benson observed the appellant in the courtroom the morning of the trial accompanied by three others and that he immediately recognized appellant out of the group as his robber; (5) lastly, the time span between the robbery and the confrontation was only a matter of minutes for the police quickly apprehended appellant and immediately returned him to the scene of the robbery. The trial court, at the jury out hearing, applied these factors to the identification of the appellant by Mr. Benson and found that his identification was reliable.

We think applying the factors on one side of the scale and the suggestive procedure on the other side, we see no reason to disturb the findings of the trial court in allowing the identification to go to the jury. Under Manson v. Brathwaite, supra, we agree. This assignment is overruled.

The judgment of the trial court is affirmed.

O’BRIEN, J., and JOE C. LOSER, Jr., Special Judge, concur.


author: POPE, Justice.

text:
    DANFORTH MEMORIAL HOSPITAL, Relator, v. Honorable Ed HARRIS et al., Respondents. JOHNSON RADIOLOGICAL GROUP, INC., et al., Relators, v. Honorable Ed J. HARRIS et al., Respondents.
    Nos. B-7682, B-7696.
    Supreme Court of Texas.
    Oct. 18, 1978.
    Mills, Shirley, McMicken & Eckel, Russell B. Serafín, Galveston and Martin, Sperry & LeBoeuf, Derral K. Sperry, Houston, for relators.
    Richard Thornton, Galveston and Gerald J. Goodwin, Houston, for respondents.
   POPE, Justice.

Relators have petitioned this court to order the trial judge to vacate an order, which according to relators, reinstated a cause after the court had lost jurisdiction under Rule 165a. We conditionally grant the mandamus.

These proceedings grew out of an action asserted by Robert Medina and his wife against our three relators, Johnson Radiological Group, Danforth Memorial Hospital, and Jesse Johnson. After the cause had remained on the docket for two years, the cause was placed on the drop docket, and it was dismissed for want of prosecution on July 5,1977. The trial court, on September 6, ordered the reinstatement of the cause. Apart from this mandamus action, the rela-tors appealed to the court of civil appeals. That court, while expressing the view that the reinstatement order was void, dismissed the appeal because a reinstatement order is an interlocutory judgment. Johnson Radiological Group v. Medina, 566 S.W.2d 117 (Tex.Civ.App.—Houston [14th Dist.] 1978, no writ). That matter is also before us by application for writ of error. Our decision in this mandamus action renders that appeal moot, so we have today dismissed that application for writ of error in that cause.

Rule 165a governs dismissals for want of prosecution; so it becomes necessary to state the critical dates reflected by the record. On July 5, 1977, the trial court ordered the dismissal of the cause for want of prosecution. The order recited that prior notice of the dismissal hearing was given more than thirty days before July 5. On July 8 the clerk, in conformity with Rule 306d mailed a postcard notice to the attorneys stating that the court had signed a dismissal order. On either July 11 or 12 Medina’s counsel received the postcard. On August 4, the thirtieth day after the dismissal order, Medina’s counsel filed a motion to reinstate the cause; and on that date, the trial court set a hearing on the motion for August 18. The order setting the date for the hearing stated that on August 18, the defendants “shall be required to show cause why said Motion should not be, in all things, granted.” On August 18, the forty-fourth day after the dismissal, the court conducted the hearing, following which the trial judge asked for briefs. On September 6, the sixty-third day after the dismissal of the cause, the court reinstated the cause. This cause is governed by this portion of Rule 165a:

Within thirty days after the signing of the order of dismissal, the court shall reinstate the case upon finding, after hearing, that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake. Where after a hearing the court finds that neither the party nor his attorney received a mailed notice, or acquired actual notice in any manner, of either the court’s intention to dismiss or the order of dismissal prior to the expiration of twenty days after the signing of such order, the court may reinstate the case at any time within thirty days after the party or his attorney first received either a mailed notice or actual notice, but in no event later than six months after the date of signing the order of dismissal. [Emphasis added.]

Rule 165a contemplates these different situations: (1) When the party or his attorney receives either a mailed notice or actual notice prior to the expiration of twenty days after the dismissal order is signed, the court may reinstate the case within thirty days from the date of the dismissal order. (2) When the party or his attorney does not receive either the mailed notice or acquire actual notice within twenty days from the date of the dismissal notice, but thereafter does receive the mailed notice or acquire actual notice; the court may reinstate the cause within thirty days after the party or his attorney first received the notice or acquired actual notice. (3) After the expiration of six months from the date the order of dismissal is signed, the court may not reinstate the cause for any event. The remedy is, in that situation, by way of a bill of review.

The respondents in this case fall in the first category, since they had notice within twenty days; and our recent decision in N-S-W Corporation v. Snell, 561 S.W.2d 798 (Tex.1977), governs this case. In that situation an order for reinstatement rendered after the expiration of thirty days from the date of the dismissal order is void. See also, Calaway v. Gardner, 525 S.W.2d 262 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ).

The respondents rely upon a finding of fact made by the trial judge that the court on August 4, 1977, was of the opinion that the order of dismissal “should be withdrawn” and the case should be placed back on the active docket subject to the right of the defendants to a hearing. We find no order of the trial court that set aside the dismissal order or that reinstated the cause on August 4. The finding is an expression of the judge’s subjective judgment of what he expected to do but that was not made into an order. Reese v. Piperi, 534 S.W.2d 329 (Tex.1976). The court’s order on August 4 was one that set down for hearing the motion to reinstate.

We accordingly grant relators’ prayer for a mandamus ordering the trial court to vacate the order for reinstatement. The writ of mandamus will issue only in the event the reinstatement order is not vacated.

      . All references to rules are to the Texas Rules of Civil Procedure.