author: WEIER, Judge.

text:
    Jim FORSYTHE, Plaintiff-Respondent, v. Thomas E. STARNES and Shirley Starnes, Defendants-Appellants.
    No. 37766.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 14, 1977.
    Motion for Rehearing and/or Transfer Denied July 21, 1977.

      Roberts & Roberts, Geoffrey L. Pratte, Farmington, for defendants-appellants.
    Charles W. Medley, James A. Alexander, Farmington, for plaintiff-respondent.
   WEIER, Judge.

Plaintiff Jim Forsythe filed suit against defendants Thomas and Shirley Starnes, husband and wife, seeking to enforce a mechanic’s lien and to recover on contract for work performed in building a house for Mr. and Mrs. Starnes. Defendants filed a general denial and counterclaimed alleging faulty and incomplete performance by plaintiff in Count I. In Count II defendants alleged a fraudulent change in the specifications from a five ton to a three and one-half ton air conditioning unit. During the three day trial the jury heard detailed testimony on numerous disputed aspects of the agreement and the condition of the house when defendants occupied it. The trial court rendered judgment for plaintiff in the amount of $5,500 in accordance with the jury’s verdict. Defendants appeal contending the trial court erred in the giving of two instructions, in refusing to allow examination of witnesses on several subjects, and in accepting the jury’s verdict, which they assert is defective as a matter of law. We reverse and remand for a new trial. A general outline of the facts will help illuminate the points raised by defendants.

Defendants discussed the construction of their house with plaintiff several times pri- or to the signing of the contract on May 1, 1972. The contract included by reference several pages of specifications entitled “Proposal Bid,” prepared by plaintiff and signed by the parties. It called for a total price of $28,540 with “FINAL PAYMENT WHEN HOME IS COMPLETED AND/OR BEFORE OCCUPANCY BY OWNER.” Concerning modifications, the contract states: “[Tjhis agreement may be limited or qualified only by a subsequent agreement dated and signed by all the parties hereto.” The first page of the specifications states: “NEW HOME AS PER PLAN.” The last page of the specifications provided two alternates, one on an outside deck and the other on masonry work.

A brochure prepared by a “house plan” company with a brief diagram of the floor plan of the house as well as a drawing of what the completed landscaped home could look like was used by defendants as a worksheet to make some of the modifications they wanted. This brochure was not given to plaintiff but he did receive a blueprint of the floor plan and an elevation drawing or “picture” of the house as well as a set of modifications drawn up by defendants.

Plaintiff received one set of blueprints some time before beginning work on the house. This contained only two pages, one a floor plan and the other a picture of the front elevation. Charles Trautman, manager of Farmington Building Supply who helped plaintiff figure the lumber for the job, also stated that plaintiff had only two pages of blueprints and that the two pages were hooked together. This was disputed by defendants who testified the set of blueprints like the ones given plaintiff were detailed and contained five or six pages.

After the subfloor was in and the walls were laid out, plaintiff’s set of the blueprints got wet in the rain. This “pretty well” destroyed them so “[y]ou couldn’t read ’em you know, and tell what, what was what.” From that point on plaintiff no longer had any blueprints but he did have the modifications drawn up by Mrs. Starnes. The original modifications were not introduced into evidence and plaintiff could not remember if they got wet or were thrown away.

Defendants ordered a second set of blueprints which contained eleven pages of plans. The house depicted therein was called the “Normandie” whereas the one shown in the brochure, which is the house defendants, wanted, was called “The La-Salle.” The plans were similar.

Defendants’ modifications included many changes from the brochure and blueprint plans. Some of the changes were as follows: An exterior storage area was converted into a den or office; the fireplace was moved from an outside to an inside wall; the stairs to the basement were made to wind near the top; a utility room was eliminated and made part of a bathroom; the furnace was moved to the basement; at least one closet was made smaller; a snack bar area was added in the kitchen; two sliding doors were added; one door was made into a window; and several windows were centered in the interior room wall.

Donald Brockmiller, an experienced general contractor called as a witness by defendants, testified that a builder could go ahead and build a house without plans or specifications but that it would take a lot of detailed work with the owner to find out where things were supposed to be. Defendants did visit the construction site once a day on the average. Plaintiff testified that during these visits defendants ordered many further changes in various parts of the house including altering the front porch, adding window wells, and centering windows with respect to the inside rooms instead of the outside walls.

Work on the house began May 15, 1972. There was some discussion during contract negotiations concerning a completion date. It would seem from the testimony that a completion date of September 1, 1972, was set, subject to weather conditions. Nothing about it is mentioned in the written contract. Defendants moved into the house about October 15,1972, at which time plaintiff “thought the house was finished” but defendants thought it was “[v]ery, very uncompleted.” When defendants moved in they had many complaints about the house, some of which were remedied to their satisfaction.

Still disgruntled over other problems in the house, defendants refused to pay plaintiff the remaining portion of the contract price. Farmington Building Supply Company filed suit against defendants to enforce a mechanic’s lien and defendants paid them $3,750. Defendants also paid Trogdon Ready Mix $1,166.42 as a result of a lien notice. Plaintiff then filed this suit against defendants to collect the balance due on the contract. Defendants counterclaimed alleging that much of the work on the house was either: (1) inadequately or improperly done; or (2) built without defendants’ authorization. They also claimed they were defrauded in that when plaintiff changed some proposed specifications to accommodate defendants’ requests, plaintiff also changed a specification for an air conditioner, from a five ton unit to a three and one-half ton unit.

The items defendants claimed were built in an unworkmanlike manner or otherwise contrary to the agreement included the following: improper roof bracing, wavy-looking ceilings, cracked front steps, unsightly off-centered linen closet and door, straight stairs leading from the basement instead of having the top segment wind ninety degrees, electrical wiring unsafe and not in compliance with the National Electric Code, three improperly placed windows, an off-centered toilet and a vanity shorter than called for in the blueprints. Plaintiff’s evidence indicated that some of these complaints may have been exaggerated, some things could not be built the way defendants wanted them (the stairs and the linen closet), and some things were built the way they were because defendants requested them to be built that way (front windows and perhaps the linen closet).

Items built which defendants claim were not authorized included an eight foot by thirty foot deck, four window wells and additional electrical outlets. Plaintiff conceded that twenty more electrical outlets were installed than the contract called for. However, plaintiff stated the deck and window wells had been authorized. There was conflicting testimony on this subject as well as nearly all other items.

In addition to the stated contract price, plaintiff claimed defendants owed him money for several items. These include time and material for installing the deck, window wells and electrical outlets, and for reworking the front porch. Plaintiff also claimed compensation for the three items which were undisputably authorized (storm door, roof vents and fluorescent light). Although defendants had not repaired any defects in the house during the three years they lived there prior to trial, they presented testimony and exhibits on what it would cost to improve the wiring and alter alleged structural defects in the house. They also introduced cancelled checks showing the rent paid while waiting to move into the house.

The jury returned a verdict assessing plaintiff’s damages at $4,700 together with $800 interest, or a total of $5,500.

In this appeal defendants seek a new trial on several grounds. We agree that defendants should be given a new trial because of errors in the instructions. In addition to discussing these issues, this opinion will also cover other points raised by defendants which could arise again during retrial. Another matter not raised by the parties also must be discussed. This concerns a problem in not requiring the jury to return multiple verdicts, one on plaintiff’s claim and two on defendants’ counterclaim. When the ease is retried with the jury returning several verdicts, the complexion of the case will change such that one of the instructions which was erroneous under the way the case was tried will no longer be defective (Instruction No. 2) and one other instruction will have to be altered to be compatible with the new verdict forms (Instruction No. 7). These problems will be discussed in greater detail under the issues where they arise.

Defendants first contend the trial court erred in giving Instruction No. 2 because it assumed the contract terms had been completed, thus ignoring an evidentiary dispute as to several of the terms. Instruction No. 2 is here set out:

Your verdict must be for Plaintiff, on Plaintiff’s claim, if you believe:
First: Plaintiff, in good faith, substantially performed the work required of him by the Contract mentioned in evidence, and
Second: Defendants have not paid the amount required by said Contract, unless you believe that Plaintiff is not entitled to recover by reason of Instruction No. 4.
The term ‘substantially performed’ as is used in this Instruction, means that the construction had progressed to the point that the house could be put to the use for which it was intended.

Defendants assert that MAI 26.06 or some form of it should have been used because the terms of the agreement were in issue. Defendants claim the prejudicial effect of this error is shown by the fact that the jury’s verdict ($4,700 plus $800 interest) exceeded the amount due on the contract without extras so that the jury must have awarded plaintiff money for some extras without requiring the jury to find that the disputed extras were in fact part of the contract. However, according to plaintiff’s testimony there was about $4,883 owing on the contract even without the disputed extras. Thus the verdict of $4,700 did not necessarily award plaintiff for disputed extras and any prejudicial effect in the giving of Instruction No. 2 is not readily apparent.

We agree, however, that Instruction No. 2 may not be a model instruction for this type of case. And indeed there was dispute in many areas as to what the terms of the contract were. A nonexclusive list of the disputed terms would include the following: whether a five ton or three and one-half ton air conditioner was called for; whether plaintiff agreed to wire the house according to the National Electric Code; whether the deck, window wells and twenty additional electrical outlets were authorized by defendants; whether plaintiff agreed to complete the house by September 1, 1972; whether the plaintiff agreed to secure lien waivers; whether the contract called for roof bracing; whether the front bedroom window was to be centered according to the inside room; whether the sliding glass doors were to be centered in the family room; whether the vanity was to be five feet long; whether a toilet was to be centered; and whether defendants authorized a change in the size of the linen closet. As stated in Varn Company v. Hamiltonian Federal Savings and Loan Association of Ferguson, 488 S.W.2d 649, 651[3] (Mo.1973), an instruction directing a verdict for plaintiff if “defendant did not pay to plaintiff plaintiff’s reserve fund under their agreement” was improper because it did not submit to the jury and require a finding as to what agreement, if any, was made when there was substantial dispute as to the existence and terms of the oral contract. See also, Laclede Investment Corporation v. Kaiser, 541 S.W.2d 330, 338-39 (Mo.App.1976) (error to use MAI 26.02 because meaning of a partnership agreement was in dispute and the instruction ignored this issue). The reasoning of these cases could apply here as well except for one problem. Defendants have not informed this court how these matters could be submitted to the jury under some form of MAI 26.06 without transgressing the requirement of Rule 70.01(a) that instructions “shall not submit to the jury or require findings of detailed evidentiary facts.” Bullock Company, Inc. v. Allen, 493 S.W.2d 5, 7[6, 7] (Mo.App.1973) (instruction submitting plaintiff’s failure to build a garage in three separately described particulars properly refused because it would have submitted evi-dentiary facts).

Even if Instruction No. 2 improperly omitted this arguably essential element, such omission is cured by reference to Instruction No. 5 submitted by defendants, wherein the jury was required to find for defendants on defendants’ counterclaim if plaintiff agreed either to build the house according to “the plans and specifications,” or with good workmanship, or to complete the house by September 1, 1972, or to obtain lien waivers and plaintiff failed to perform in any of these respects. Although ordinarily the “omission of an element from a verdict director is not cured by reference to another instruction, Milliken v. Trianon Hotel Co., 364 S.W.2d 71, 75 (Mo.App.1962) and Elmore v. Illinois Terminal RR Co., 301 S.W.2d 44, 47 (Mo.App.1957).” Vic Koepke Excavating & Grading Company v. Kodner Development Company, No. 37207 (filed February 15, 1977, Mo.Ct.App. St. Louis) (p. 12), there is an exception where the omitted element is viewed as a matter of affirmative defense raised in a counterclaim such as in the case at bar. Vic Koepke Excavating & Grading Company v. Kodner Development Company, supra at 12-13, citing Brush v. Miller, 208 S.W.2d 816, 820 (Mo.App.1948). Under these circumstances Instruction No. 2 is not inadequate for failing to require the jury to find what the contract terms were.

Defendants also claim error in giving Instruction No. 2 because it failed to require the jury to find that plaintiff had been damaged. Plaintiff contends such a finding was not required here because this case is similar to a suit on an account where plaintiff necessarily is damaged simply because the full contract price has not been paid. If the jury found, as required by the instruction, that “First: Plaintiff, in good faith, substantially performed the work required of him by the Contract mentioned in evidence, and Second: Defendants have not paid the amount required by said Contract,” then plaintiff necessarily has been damaged by the failure to pay and no separate finding on this issue is needed. See, MAI 26.03, 26.04 and 26.05. However, defendants assert that a finding of damage was required in this case because the jury could find there was no net damage to plaintiff because defendants’ counterclaim exceeded plaintiff’s claim. A counterclaim includes set-off and recoupment. Schroeder v. Prince Charles, Inc., 427 S.W.2d 414, 419[4] (Mo.1968). “Recoupment goes to mitigation or extinguishment of plaintiff’s damages but permits of no affirmative judgment for the defendant . . . as is permitted if defendant elects to set up his own damages by way of a counterclaim.” Edmonds v. Stratton, 457 S.W.2d 228, 232[8] (Mo.App.1970). See also, Brush v. Miller, supra. In the case before us where the jury was requested to return only one verdict, there was evidence from which the jury could have found that defendants’ damages on their counterclaim (perhaps as much as $6,553) exceeded the amount owing plaintiff on the contract (between $4,613 and $5,507) so that there was no net damage to plaintiff. Under these circumstances the jury should have been required in Instruction No. 2 to find that plaintiff was damaged. S. P. Personnel Associates of San Antonio, Inc. v. Hospital Building & Equipment Co., Inc., 525 S.W.2d 345, 349-50 (Mo.App.1975), cited by plaintiff, is distinguishable. In that case the court approved a verdict director for plaintiff which did not require a finding that plaintiff had been damaged. But the court did not discuss whether such a finding was necessary. Further, defendant there admitted it was liable to plaintiff for some damages, so there would have been no reason to submit this issue to the jury.

For the reasons mentioned infra, the jury, in the event of a retrial, should return more than one verdict. If this is done, it will not be necessary to include a finding of damage to plaintiff in plaintiff’s verdict director because the damage due to defendants’ refusal to pay is obvious and need not be submitted and the determination of net damage owing between the parties based upon the verdicts returned will be made by the trial court in its judgment.

Defendants’ last complaint concerning Instruction No. 2 is that it gave an unnecessary and materially misleading definition of “substantially performed.” The definition stated: “The term ‘substantially performed’ as is used in this Instruction, means that the construction had progressed to the point that the house could be put to the use for which it was intended.” This definition is reasonably accurate. Southwest Engineering Company v. Reorganized School District R-9, 434 S.W.2d 743, 751[19] (Mo.App.1968). See generally, 13 Am. Jur.2d, Building and Construction Contracts, § 43, pp. 46-48. Citing the general rule that the trial court should explain to the jury the meaning of legal or technical terms in instructions, but the meaning of ordinary words used in their usual or conventional sense need not be explained, S. P. Personnel Associates of San Antonio, Inc. v. Hospital Building & Equipment Co., Inc., supra at 350[17], defendants claim “substantially performed” is an ordinary term rather than a legal or technical one. It is true that Moore v. McCutchen, 190 S.W. 350, 352[9] (Mo.App.1916), relied on by defendants, found no reversible error in the trial court’s failure to define “substantially” and “material omission or defect” appearing in an instruction which read in part:

“[I]n suits on building contracts, a literal compliance with plans, specifications, and drawings by the contractor is not necessary to recover; and if you find from the evidence that [plaintiffs] in good faith, performed the contract on which recovery in this suit is sought, substantially and in all particulars, according to the terms and the plans, specifications, and drawings without a material omission or defect in such performance, that is sufficient to constitute compliance with the contract.” But although not articulated in the reasoning of that decision, it seems obvious that the disputed terms were, in substance, already defined in the instruction in which they appeared, such that further explanation was not necessary. The case does not hold that “substantial performance” is an ordinary rather than a legal or technical term. In other cases, moreover, the words “substantially performed” have frequently been defined by Missouri courts. This is one factor indicating the term is of a legal or technical nature. Transportation Equipment Rentals, Inc. v. Strandberg, 392 S.W.2d 319, 324[8] (Mo.1965). This fact, together with the determination in McAlpine Company v. Graham, 320 S.W.2d 951, 954[5] (Mo.App.1959) that an instruction was erroneous because it “contained no standard or guide by which the jury could determine whether the defects [in plaintiff’s performance] were of sufficient substance and materiality to say that plaintiff had substantially failed to perform the contract . . .,” convince us that the term “substantially performed” is a legal and technical term rather than an ordinary one. It is therefore apparent the trial court did not commit reversible error by explaining the meaning of this term to the jury in Instruction No. 2.

Defendants’ second major contention concerns Instruction No. 7. This damage instruction told the jury:

If you find in favor of Plaintiff, then you must award him such sum as you believe is called for by the Contract, less payment, together with six percent (6%) interest thereon from January 1, 1973, less such sums necessary to correct any defects in Plaintiff’s performance of the Contract.

Defendants assert “defects in Plaintiff’s performance” is too narrow and the jury should have been told that defendants were entitled to an offset for other items including: (1) compensation for failure to complete the contract on time; and (2) costs necessary to bring the house into conformity with the plans and specifications. These items are part of defendants’ counterclaim and they appear in Instruction No. 5, the verdict director for the counterclaim. Plaintiff contends “defects in Plaintiff’s performance” is a general term encompassing all items of damage to which defendants are entitled.

As we have previously stated, a counterclaim includes set-off and recoupment. Schroeder v. Prince Charles, Inc., supra at 419[4]; Edmonds v. Stratton, supra at 231[5]. “Recoupment goes to mitigation or extinguishment of plaintiff’s damages but permits of no affirmative judgment for the defendant . . . as is permitted if defendant elects to set up his own damages by way of a counterclaim.” Edmonds v. Stratton, supra at 232. That part of Instruction No. 7 allowing the jury to deduct from plaintiff’s damages “such sums necessary to correct any defects in Plaintiff’s performance of the Contract” apparently was to provide for recoupment. But it was confusing and misleading to include this deduction in plaintiff’s damage instruction when defendants’ counterclaim instruction contained basically the same recoupment allowance in a much more specific and detailed manner. While Instruction No. 7 told the jury to deduct for “defects in Plaintiff’s performance of the Contract,” Instruction No. 5 authorized a counterclaim in favor of defendant if the jury found “First, Plaintiff agreed either: to build the house according to the plans and specifications, or to build the house with good workmanship, or to have the house ready for occupancy by September 1,1972, or to obtain from all materi-almen and subcontractors proper lien waivers, and Second, Plaintiff failed to perform his agreements in any one or more of the respects submitted in Paragraph First, and Third, Defendants were thereby damages [sic].” If Instruction No. 7 had referred to the counterclaim for the recoupment allowance there would have been less confusion. But as the instructions were submitted, the two allowances for defendants were never explained or collated. The confusion in this regard was compounded by requiring the jury to return only one verdict.

We also agree with defendants that the deduction allowed them in Instruction No. 7 was too narrow and did not include all items to which they were entitled by way of recoupment. Absent excuse or waiver, a contractor is liable for damages accrued as a direct and natural consequence of breach of an agreement to complete a construction project by a certain date. Herbert & Brooner Construction Co. v. Golden, 499 S.W.2d 541, 548-50[15, 20] (Mo.App.1973), and “in the case of substantial but defective performance, ... the owner is entitled to have the contractor’s recovery reduced by the amount that would reasonably be required to remedy the defects and make the structure conform to the plans and specifications.” Southwest Engineering Company v. Reorganized School District R-9, supra at 751[20], citing Talbot-Quevereaux Const. Co. v. Tandy, 260 S.W.2d 314, 816[l] (Mo.App.1953). Stated differently, the owners “are entitled to an award or credit of such sum as will fairly and reasonably compensate them for defects in the building due to defective materials or unskillful labor and for items omitted by plaintiffs in the performance of the contract. Julian v. Kiefer, supra at 730[15]. However, it should be noted that the owners may not recover for the cost of reconstruction and completion in accordance with the contract if this would involve unreasonable economic waste (destruction of usable property). North County School District R-1 v. Fidelity & Deposit Company of Maryland, 539 S.W.2d 469, 480 (Mo.App.1976), citing Samuels v. Illinois Fire Insurance Company, 354 S.W.2d 352, 357 (Mo.App.1961). As pointed out in the North County School District case, supra at 480, n. 21, if unreasonable economic waste would occur in bringing the structure into conformity with the contract, the owner’s damages should be calculated by the difference in value formula. This formula is simply the difference between the value of the structure as completed and the value the structure would have had if it had been constructed according to the terms of the contract. 13 Am.Jur.2d, Building and Construction Contracts, § 79-80, pp. 79-83; see, Freeman Contracting Company v. Lefferdink, 419 S.W.2d 266, 276 (Mo.App.1967); Hotchner v. Liebowits, 341 S.W.2d 319, 332[25] (Mo.App.1960).

For the reasons stated, Instruction No. 7 was bad. On retrial the jury will return multiple verdicts and the trial court will compute the net award, if any, between the parties. In this event plaintiff’s damage instruction should not include anything about defendants’ recoupment allowance. This allowance will be made when the jury determines defendants’ damages, if any, on their counterclaim. We note that in this case MAI 4.01 was used as defendants’ damage instruction on their counterclaim. At least until a more detailed form is provided, the use of MAI 4.01 is appropriate in this type of case. North County School District R-1 v. Fidelity & Deposit Company of Maryland, supra at 480. But as the North County School District case, supra, points out, with the use of MAI 4.01, the measure of damages becomes a matter of evidence and that evidence “should conform to the rules relating to damages by defective construction,” and hence it should not include any evidence on costs to reconstruct the structure where unreasonable economic waste would occur. (Such as, for example, the estimates for moving the front windows for $412 and shortening a bathroom closet and lengthening the vanity by twelve inches for $1,059 — the bid made by a eon-tractor-witness.)

Defendants’ third point on appeal is that the trial court erred in limiting interrogation of the parties in two areas. The first area concerns alleged contemporaneous collateral agreements that plaintiff install the wiring in accordance with the National Electric Code and obtain lien waivers from suppliers. Although much testimony was admitted on these two subjects, defendants contend the trial court should not have limited their cross-examination of plaintiff on these matters because the evidence was not in violation of the parol evidence rule in that the alleged agreements were collateral to the written contract and not in conflict with it. The general rule in this regard is stated in South Side Plumbing Co. v. Tigges, 525 S.W.2d 583, 588[7] (Mo.App.1975) as follows: “Testimony concerning a prior or contemporaneous agreement, if consistent with the writing, may supplement a writing incomplete on its face, but should not, in any case, be permitted to vary or contradict the writing.” The rule permitting parol evidence of a collateral agreement “is especially applicable where such agreement operates as an inducement to the complaining party to enter a written agreement.” Frimel v. Blake, 360 S.W.2d 258, 261[1] (Mo. App.1962). Defendants pleaded and argued the admissibility of the lien agreements on this theory. Here the writing is incomplete on its face and the disputed collateral agreements would merely supplement and not contradict the written agreement. Garden Park Homes Corporation v. Martin Marietta Corporation, 507 S.W.2d 368, 373-74[1-2] (Mo.1974); Beuc v. Morrissey, 463 S.W.2d 851, 853-55[1] (Mo. banc 1971). (But where instrument is a complete integration of the agreement of the parties see, South Side Plumbing Co. v. Tigges, supra at 588). In the event of a retrial, this evidence would be admissible.

We have faced this issue not because it is determinative in the outcome of this appeal, but rather because of its importance on retrial. Although defendants’ amended counterclaim included a claim concerning lien waivers as an inducement to enter into the written contract, the counterclaim does not allege the agreement on the National Electric Code was part of the inducement. In fact there is no mention of the National Electric Code in the counterclaim, even though defective wiring is there alleged. But if this issue is properly pleaded and raised, the problem of admissibility and limitation of cross-examination may again arise and should be resolved in light of the above authorities.

The second area of disputed evidence concerns Count II of defendants’ counterclaim wherein defendants alleged that when plaintiff changed some proposed specifications to accommodate defendants’ requests, plaintiff also changed a specification for an air conditioner, contrary to defendants’ understanding that it would not be changed, from a five ton unit to a three and one-half ton unit. One specification in the contract (item 6) states: “150,000 B.T.U. Electric Forced Air Heat with Electric Air Conditioning, 314 ton.” Some testimony on the size of the air conditioner listed in the original proposal was admitted, but the trial court refused defendants’ offer of proof to show that a change without assent had been made during the direct examination of Mr. Starnes. Parol evidence is admissible to vary or contradict a written contract if the party offering the parol evidence pleads and proves the following requisite elements of actionable fraud: “(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted on by the person and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury.” Beshears v. S-H-S Motor Sales Corporation, 433 S.W.2d 66, 70[2] (Mo.App.1968). An offer of proof based upon a proper pleading of these elements should be granted. But here the offer of proof failed to include them and the evidence was properly excluded.

Defendants’ fourth contention is that the trial court erred in not permitting defendants to show damages, including attorney’s fees, sustained by plaintiff’s failure to obtain lien waivers “because such damages are allowable when incurred due to a party’s involvement in collateral litigation because of another party’s breach of duty." Defendants were permitted to show how much they had paid suppliers who had filed liens against them but they were not permitted to testify as to other costs (presumably attorney’s fees) incurred as a result of the liens filed against them. Defendants made no offer of proof on this subject and the point is not preserved for review. Elliott v. Richter, 496 S.W.2d 860, 864[1] (Mo.1973). But we discuss this in view of the probability of retrial.

In Missouri attorney’s fees are ordinarily recoverable only when authorized by statute or contract, when a court of equity finds it necessary to award them in order to balance benefits, or when they are incurred because of involvement in collateral litigation. Moore v. City of Pacific, 534 S.W.2d 486, 505[28] (Mo.App.1976). To be awarded attorney’s fees incurred as a result of collateral litigation, the wronged party must show that the litigation was the natural and proximate result of the wrong or breach of duty by the other party, that the fees were necessarily and in good faith incurred to protect the wronged party from injury and that the amount of the fees is reasonable. Johnson v. Mercantile Trust Company National Association, 510 S.W.2d 33, 40[6] (Mo.1974). If defendants prove these necessary elements on retrial, they would be entitled to reasonable attorney’s fees.

One final matter concerning the verdicts to be returned on retrial must be discussed. Here only one verdict was returned but recovery could be had on all claims. A finding for plaintiff on plaintiff’s claim and for defendants on each count of defendants’ counterclaim would not necessarily be inconsistent. Schroeder v. Prince Charles, Inc., supra at 419[4—6]; MFA Cooperative Association of Ash Grove v. Elliott, 479 S.W.2d 129, 133[6, 7] (Mo.App.1972); Edmonds v. Stratton, supra at 232. The reason such findings would not be mutually exclusive or inconsistent is that where each party has committed a wrong against the other, each has a cause of action against the other. See 3A Corbin on Contracts, §§ 709-710, pp. 334-343. A valid claim on the part of one party does not prevent a valid claim for the opposing party. There are no MAI verdict forms, however, for such a case.

In determining what type of verdict forms would be proper in this situation, we are guided by the rule that the trial court should give verdict forms which will completely dispose of all claims. Rozen v. Grattan, 369 S.W.2d 882, 888[7] (Mo.App.1963). Although several cases have held, in situations involving counterclaims, that one verdict is sufficient, Brandtjen & Kluge, Inc. v. Hunter, 235 Mo.App. 909, 145 S.W.2d 1009, 1014[8, 9] (1940), cited in 20 Am.Jur., Counterclaim, Recoupment, and Setoff, § 157, p. 364, other cases approve of one verdict only where a verdict on the opposing claim can be implied. United Iron Works, Inc. v. Twin City Ice & Creamery Co., 317 Mo. 125, 295 S.W. 109, 115-16[4-5] (1927); Staples v. Dent, 220 S.W.2d 791, 792[2] (Mo.App.1949); Ragsdale v. Young, 215 S.W.2d 514, 516-17[2] (Mo.App.1948); Humphries v. Shipp, 238 Mo.App. 985, 194 S.W.2d 693, 699-700[7, 8] (1946); Lauderdale v. King, 130 Mo.App. 236, 109 S.W. 852, 854[2] (1908). See generally, 89 C.J.S. Trial § 504, pp. 175-177. The better procedure to be followed in such cases, to avoid any possible doubt or confusion, is to require the jury to return separate verdicts on plaintiff’s claim and the defendants’ counterclaim. MFA Cooperative Association of Ash Grove v. Elliott, supra at 133[4-7]; Ralston Purina Company v. Kennedy, 347 S.W.2d 462, 466 (Mo.App.1961); Blackman v. Botsch, 281 S.W.2d 532, 535 (Mo.App.1955); Brush v. Miller, supra at 820[9].

After the verdicts are returned, the court should subtract the smaller from the larger and enter judgment for the amount of the balance in favor of the party with the larger verdict. If the verdicts favoring both parties were in equal amounts, neither party would be entitled to a money judgment and the court should so indicate in the judgment. . To avoid any confusion, it would be appropriate for the judgment to spell out the steps taken to arrive at the net award. See, e. g., United Iron Works, Inc. v. Twin City Ice & Creamery Co., supra at 115, (judgment for plaintiff “in the sum of $3,140, less the sum of $1,030.14 [as a set-off for defendant], making a net sum of $2,109.86).”

Upon retrial of this case, if submissible claims are presented, the jury should be required to return verdicts on the claim and each count of the counterclaim on verdict forms consistent with the considerations discussed herein.

Judgment reversed and cause remanded.

KELLY, P. J. and GUNN, J., concur.

      . $28,595 (contract price plus undisputed authorized extras) minus $23,712 (total credited to defendants according to plaintiff) equals $4,883.

      . The same finding of net damage was handled differently in Vic Koepke Excavating & Grading Company v. Kodner Development Company, No. 37207 (filed February 15, 1977, Mo.Ct.App. St. Louis) (p. 11), where the jury was instructed to deduct defendants’ set-off damage from plaintiffs damages and “[i]n the event [defendant’s] damage is equal to or exceeds plaintiffs damage, your verdict must be for defendant.”

      . See, e. g., State ex rel. Stites v. Goodman, 351 S.W.2d 763, 766[1] (Mo.banc 1961); Southwest Engineering Company v. Reorganized School District R-9, supra at 751[19]; Julian v. Kiefer, 382 S.W.2d 723, 728[6] (Mo.App.1964).

      . The amount owing the contractor may include extras provided they were properly authorized. Herbert & Brooner Construction Co. v. Golden, supra at 547[10, 11]; Julian v. Kiefer, supra at 730[15].

      . But see 13 Am.Jur.2d, pp. 80-81 where some cases (not Mo.) hold that in the case of dwellings, as opposed to commercial structures, due to esthetic value, the contractor is always liable for the cost to make the house conform to the contract specifications. For a good discussion of the factors involved in determining which measure of damages to use in a given case see D. Dobbs, Remedies, § 12.21, pp. 897-903 (1973).

      . In a case where defendant seeks recoupment or set-off to mitigate plaintiffs damages but does not assert a counterclaim, one verdict is sufficient. See Vic Koepke Excavating & Grading Company v. Kodner Development Company, No. 3207, - S.W.2d -(filed February 15, 1977, Mo.Ct.App. St. Louis).

      . The jury need not be instructed by the court that this will be done, but it would be appropriate for counsel in closing argument to explain what the trial court will do with the verdicts. Such an explanation would reduce the possibility of inconsistent verdicts such as occurred in cases such as MFA Cooperative Association of Ash Grove v. Elliott, supra at 133, and Ralston Purina Company v. Kennedy, supra.


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    Freddy CHAMBERS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10610.
    Missouri Court of Appeals, Springfield District.
    July 20, 1977.

      John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for movant-appellant.
    C. R. Rhoades, Pineville, for respondent.
   TITUS, Judge.

Freddy Chambers was jury-tried and convicted of one count of stealing and four counts of second-degree murder. Because the jury could not agree on punishment, the court fixed punishment at ten years’ imprisonment for the stealing and at twenty-five years’ imprisonment on each murder count with the terms to run consecutively. The conviction was affirmed on appeal. State v. Chambers, 524 S.W.2d 826 (Mo.banc 1975). On 20 September 1976, Chambers filed a Rule 27.26, V.A.M.R., motion seeking to vacate, set aside or correct the conviction and sentences. The Circuit Court of McDonald County denied the motion without an evidentiary hearing and Chambers appealed.

“To qualify for an evidentiary hearing on a 27.26 motion, the movant must meet the following requirements: 1) His motion must allege facts, as opposed to conclusions, warranting relief. ... 2) Those facts must raise matters not refuted by the files and records in the case. . . . 3) The matters complained of must have resulted in prejudice to the [movant].” Haliburton v. State, 546 S.W.2d 771, 773[1] (Mo.App.1977). Albeit the appeal from the conviction was taken to the Supreme Court and that transcript on appeal is not among the records of this court, we conclude, because of the second requirement, supra, that we can and should notice the transcript on the original appeal. Layton v. State, 500 S.W.2d 267, 270[8] (Mo.App.1973).

As recited in State v. Chambers, supra, and as shown by the transcript on the original appeal which was also available to the trial court in denying the 27.26 motion without evidentiary hearing, the facts, briefly, were these: In the early morning hours (nighttime) of September 5, 1972, movant, accompanied by one Collins, drove his red Torino to a motor company’s lot located south of Joplin on U.S. Highway 71. Movant broke a window in a pickup truck belonging to the company, directed Collins to get into the truck and steer, hooked it by a log chain onto the Torino’s rear bumper, and drove the Torino northward along the highway towing the truck “real fast and all over the road.” An employee of the motor company witnessed the theft. At some point during the asportation, the log chain became unhooked from both vehicles and the pickup truck traveled onto the wrong side of the highway and collided headon with a southbound Valiant. All four occupants of the Valiant perished as a result of the crash. Collins, a witness for the state in the criminal trial, was found in the pickup at the scene. The Torino disappeared and movant was apprehended later.

In part III of paragraph 8 of his motion, movant states he “was denied equal protection and due process of law [because Collins] was charged with only manslaughter . . and [that movant] could not factually be guilty of a worse offense [than Collins], . . . [that movant] was subjected to cruel and unusual punishment [because] he was tried and convicted of second degree murder when the state only convicted [Collins] of manslaughter [and movant] was subjected to arbitrary prosecution when [Collins] was not charged with second degree murder.” The trouble with these allegations is that they simply are not true. The transcript on the original appeal shows that Collins, by separate information, was likewise charged with one count of stealing and four counts of second-degree murder. Allegations in a motion for postconviction relief which are wholly refuted by the transcript on the original appeal do not require an evidentiary hearing and negate the need for appointment of counsel. Snethern v. State, 537 S.W.2d 250 (Mo.App.1976). Moreover, the fact that Collins was convicted of manslaughter or had been wholly exonerated in the matter is immaterial in this proceeding and is no proof that movant was not guilty of the charges for which he was convicted. State v. Sickler, 293 S.W.2d 957, 959[2] (Mo.1956).

Under part IV of paragraph 8 of the motion, movant says he was denied effective assistance of counsel because his appointed lawyers failed to call witnesses to testify (1) that movant and Collins had had a fight in the evening before the time in question, (2) that they did not see Collins and movant leave a truckstop together, and (3) that movant’s Torino had sustained damage prior to the involved incident. As do the allegations in part III of the motion, the averments in this portion of the motion are shown by the transcript to be untrue. Two witnesses for the state (Collins and a disinterested eyewitness to the fracas) testified concerning the fight between movant and Collins. Two witnesses for the state testified that movant’s automobile had been damaged prior to the incidents occurring on September 5, 1972, and that the damages had not been repaired before that time. Movant’s then counsel produced the person who was involved in a collision with movant’s car on August 1, 1972. This witness stated that movant’s automobile had sustained the damage on August 1 which was revealed in photographs taken subsequent to the date .of the alleged crimes. One state witness, an employee of the truckstop, testified he had not seen movant and Collins leave the truckstop together. It is of no consequence that most of the matters pertinent to this portion of the motion came from testimony of state witnesses rather than from witnesses called by the defense. The testimony was uncontradicted and the facts were clearly before the jury. Any additional testimony of witnesses produced by the defense on the same subjects would be merely cumulative of uncontroverted evidence and the lack thereof would not be prejudicial to movant.

Movant also contends that the court failed to make proper findings of fact and conclusions of law pursuant to Rule 27.26(i), V.A.M.R., before denying the motion without evidentiary hearing. The findings of fact and conclusions of law recorded and the action of the trial court in dismissing the motion “[were] equivalent to findings and conclusions in accordance with the grounds (heretofore quoted) set out in that motion. Those grounds are sufficient to provide a basis for appellate review” [Smith v. State, 513 S.W.2d 407, 412[7] (Mo.banc 1974)], and to permit us to conclude that no evidentiary hearing was required on the motion. Hogshooter v. State, 514 S.W.2d 109, 113[1] (Mo.App.1974).

Movant was sentenced June 19, 1973, to the consecutive sentences noted at the beginning hereof. Since this occurred prior to the ruling that § 546.480, V.A.M.S., was unconstitutional [State v. Baker, 524 S.W.2d 122 (Mo.banc 1975)], and as no other reasons appear of record, we may presume that the trial court imposed the consecutive sentences in compliance with that section of the statutes. State v. Jones, 545 S.W.2d 659, 669 (Mo.App.1976). The trial court is now given power to exercise judicial discretion whether to impose concurrent or consecutive sentences on the five-count conviction. Consequently, the cause must be remanded to the trial court for that limited purpose.

We affirm denial of the Rule 27.26 motion for the reasons stated but the consecutive sentences imposed are set aside and the cause is remanded for the limited purpose of resentencing by the court in an exercise of discretion whether to impose the sentences in question consecutively or concurrently.

Addendum

Movant was tried and convicted as Freddy Chambers. His appeal under that name was affirmed in State v. Chambers, supra, 524 S.W.2d 826. Movant’s 27.26 motion was signed “Freddy Chambers.” For some unexplainable reason, the transcript, briefs and other papers filed in connection with the 27.26 motion denominate movant as “Freddie.” So that the records in this case may be correct, we direct the clerk in the McDonald County Circuit Court and in this court to correct their records to cognomi-nate the given name of movant-appellant in this cause as “Freddy.”

All concur except FLANIGAN, J., who recused.


author: BILLINGS, Chief Judge.

text:
    Robert Wesley KNIGHTON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10444.
    Missouri Court of Appeals, Springfield District.
    July 20, 1977.

      Robert Wesley Knighton, pro se.
    John Ashcroft, Atty. Gen., Nanette Lau-ghrey, Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Chief Judge.

The Circuit Court of Greene County denied appellant’s Rule 27.26 motion to vacate three consecutive 10-year sentences, entered on his convictions for kidnapping. He alleged he was entitled to resentencing because of our supreme court’s decision in State v. Baker, 524 S.W.2d 122 (Mo. banc 1975). The lower court, without conducting an evidentiary hearing, ruled that the record made at the time of sentencing showed the trial judge had in fact exercised discretion in imposing consecutive sentences, rather than concurrent sentences, and denied appellant’s motion.

Pro se, appellant filed an untimely notice of appeal. Thereafter, sua sponte, we permitted a late filing of the transcript of the proceedings below on November 29, 1976.

Respondent, under date of June 13, 1977, and by certified mail, gave appellant notice of motion to affirm judgment [Rules 84.10, 28.09, V.A.M.R.] for failure to file his brief within sixty days after the filing of the transcript [Rule 84.05, V.A.M.R.] and filed the motion with our clerk on July 6, 1977.

Appellant has not sought, nor have we granted, additional time for the filing of his brief.

Respondent’s motion to affirm the judgment is sustained.

Judgment affirmed.

All concur.

      . The convictions were affirmed in State v. Knighton, 518 S.W.2d 674 (Mo.App.1975).


author: COOPER, Chief Justice.

text:
    STATE of Tennessee, Petitioner, v. James HENDERSON, Respondent.
    Supreme Court of Tennessee.
    May 9, 1977.
    Petition to Rehearing Aug. 15, 1977.
    Robert A. Grunow, Asst. Atty. Gen., Brooks McLemore, Atty. Gen., State of Tenn., Nashville, for petitioner.
    Edwart Witt Chandler, Emmons, Smith, & Chandler, Memphis, for respondent.
   OPINION

COOPER, Chief Justice.

Certiorari was granted in this case to determine whether the admission in evidence of toxicology laboratory reports, through a witness other than those that performed the tests, violated respondent’s constitutional right to confrontation. A divided Court of Criminal Appeals held that it did, reversed the conviction, and remanded the case for a new trial. We affirm its action.

" The record shows that the Henry County Grand Jury, at its January, 1975, Term, returned two indictments against James Henderson. In one, Mr. Henderson was charged with possession of LSD with intent to manufacture, deliver, distribute, sell, and with the sale of LSD. The other indictment charged Mr. Henderson with the possession of marijuana with the intent to manufacture, deliver, distribute, or sell, and the sale of marijuana.

On trial, the jury found Mr. Henderson guilty as charged in the indictments, and assessed his punishment at imprisonment in the state penitentiary for not less than five years nor more than six years under the LSD indictment, and imprisonment in the state penitentiary for not less than one nor more than two years on the conviction under the marijuana indictment. The trial judge ordered the sentences to run concurrently.

It is uncontradicted in the record that Mr. Henderson sold a state agent the substances that were the predicate of the indictments returned by the Henry County Grand Jury. After purchase, the substances were sent to the State Toxicology Laboratory in Memphis, Tennessee, for testing. The result of the tests is the only evidence in the record that the substances Mr. Henderson sold the undercover agent were contraband.

At the time of trial, the laboratory assistants who conducted the tests to determine the nature of the substances were on vacation and temporarily were not available to testify. In the absence of these witnesses the trial court permitted the test results to be introduced in evidence as an exhibit to the testimony of Dr. David Stafford, the director. Respondent objected to the introduction of the laboratory reports, contending that the reports violated the rule against hearsay and violated his constitutional right to confront the witnesses against him.

In holding that the trial judge was in error in admitting the reports in evidence, the majority of the Court of Criminal Appeals, in an opinion authored by Judge Daughtrey, had the following to say:

“The reports were clearly hearsay, constituting as they did out-of-court statements offered to prove the truth of the matters contained therein. McCormick, Evidence § 246 (2d ed. 1972); Paine, Tennessee Law of Evidence § 47 (1974). The basis upon which the trial judge nevertheless determined them to be admissible is not altogether clear from the record. Dr. Stafford was asked whether the tests were run under his supervision, whether they were conducted as normal procedure, and whether the results were ‘certified’ by him. He replied that the reporting analysts worked under his supervision, but that the tests had not been conducted within his eyesight. He confirmed the fact that the results had been ‘certified’ by him. However, the ‘certification’ appears to carry only a rubber-stamped signature under the statement, T certify and attest that this document is the proper record it purports to be.’ There is no indication that the results of the tests were personally verified by the certifier nor that by his certification he endorsed the conclusions reached by the reporting analysts. Compare, State v. Kreck, 86 Wash.2d 112, 542 P.2d 782, 784 (1975).

“These records may well come within the so-called business records exception to the hearsay rule, codified under Tennessee law as T.C.A. § 24-714, but this would satisfy only the threshold inquiry. The second and crucial question is whether the introduction of the laboratory reports in such circumstances violates the federal constitutional right of confrontation embodied in the Sixth Amendment, Pointer v. Texas, 380 U.S. 400, [85 S.Ct. 1065, 13 L.Ed.2d 923] (1965), and the right guaranteed every criminal defendant under article 1, Section 9 of the Tennessee Constitution ‘to meet the witnesses face to face.’ See generally, Phillips v. Neil, 452 F.2d 337, 344 (6th Cir. 1971), cert. denied 409 U.S. 884, [93 S.Ct. 96, 34 L.Ed.2d 141] (1972); United States v. Lipscomb, 435 F.2d 795, 802 (5th Cir. 1970), cert. denied 401 U.S. 980, [91 S.Ct. 1213, 28 L.Ed.2d 331] (1971). We conclude that such a violation has occurred in this case.

“Initially it must be conceded that while the rule against hearsay and the right of the criminal defendant to confront the witnesses against him share common historical roots, in that both recognize the right of cross-examination to be foremost among the safeguards essential to a fair trial, the Confrontation Clause has never been interpreted to bar all hearsay evidence in a criminal trial. For example, the dying declaration exception to the hearsay rule was recognized under the common law even before the Sixth Amendment was adopted. See e.g., Mattox v. United States, 146 U.S. 140, 151-52, [13 S.Ct. 50, 36 L.Ed. 917] (1892). Similarly, as the law of evidence developed, other hearsay exceptions have passed constitutional muster despite the existence of the Confrontation Clause, e.g., prior testimony of a subsequently deceased witness, as in Mattox v. United States, 156 U.S. 237 [15 S.Ct. 337, 39 L.Ed. 409] (1895). Accord, Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150 (1965), approved in Mancusi v. Stubbs, 408 U.S. 204 [92 S.Ct. 2308, 33 L.Ed.2d 293] (1972) (prior witness now residing permanently out of country); cf. Hall v. State, 65 Tenn. 522 (1873) and Hicks v. State, 490 S.W.2d 174 (Tenn.Crim.App.1972) (prior witness residing out of state).

“On the other hand, the United States Supreme Court has made it abundantly clear that the two rules are not coterminous. Dutton v. Evans, 400 U.S. 74, 86 [91 S.Ct. 210, 27 L.Ed.2d 213] (1970). Speaking for the Court in California v. Green, 399 U.S. 149, 155-56 [90 S.Ct. 1930, 26 L.Ed.2d 489] (1970), Mr. Justice White said:

While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. See Barber v. Page, 390 U.S. 719 [88 S.Ct. 1318, 20 L.Ed.2d 255]; Pointer v. Texas, 380 U.S. 400 [85 S.Ct. 1065, 13 L.Ed.2d 923].

“Unfortunately, the law of confrontation appears to be in a state of some confusion, principally because of the ad hoc approach mandated by the United States Supreme Court, but also because the Confrontation Clause has been applied to the States only during the last decade. Pointer v. Texas, supra. See generally Baker, The Right to Confrontation, The Hearsay Rules, and Due Process, 6 Conn.L.Rev. 529 (1974); Note, Interplay of the Confrontation Clause and the Hearsay Rule, 29 Ark.L.Rev. 375 (1975). No explicit constitutional guidelines have been announced by the United States Supreme Court in the application of the Confrontation Clause (nor by the Tennessee Supreme Court in construing Article I, Section 9 of the Tennessee Constitution). Nevertheless, from a close reading of the major confrontation cases decided by the United States Supreme Court we conclude that at least three criteria must be met in order to satisfy federal constitutional confrontation rights:

“(1) By implication the evidence must not be ‘crucial’ nor ‘devastating.’ Dutton v. Evans, 400 U.S. 74, 87 [91 S.Ct. 210, 27 L.Ed.2d 213] (1972). As the Supreme Court of a sister state has put it:

It appears from the various decisions that the admissibility in evidence of business records depends upon the purpose for which they are offered. If they are offered to prove an essential element of the crime or connect the defendant directly to the commission of the crime, then they must be proved through persons having personal knowledge of the element or connection and such persons must be available for cross-examination. If, instead of producing the person who has personal knowledge, the state relies on documents made by such person or recorded testimony, the defendant has been denied his right to confront the witnesses against him. State v. Matousek, 287 Minn. 344, 178 N.W.2d 604, 608 (1970).

“(2) The State must make a good faith effort to secure the presence of the person whose statement is to be offered against the defendant. In the absence of such a showing, the witness cannot be deemed ‘unavailable’ for purposes of the Confrontation Clause. Barber v. Page, 390 U.S. 719, 724-25 [88 S.Ct. 1318, 20 L.Ed.2d 255] (1968). See also California v. Green, 399 U.S. 149, 161-62 [90 S.Ct. 1930, 26 L.Ed.2d 489] (1970); Mancusi v. Stubbs, supra; compare Hicks v. State, supra, at 178-79.

“(3) The evidence offered under a hearsay exception must bear its own ‘indicia of reliability.’ Dutton v. Evans, supra, [400 U.S.] at 89 [91 S.Ct. 210].

“At least superficially, the evidence before us satisfies the last of these three criteria. From the record it appears that the chemists were well-trained to perform the tests involved and that they had no apparent motive to falsify the reports. Yet it must also be noted that the records in this case, while they may satisfy the technical requirements of T.C.A. § 24-714, do not fit the classic business records mold, i.e. ‘shop books’ or hospital records. Entries in such records are considered reliable because they are made in the course of business and are routinely relied upon by others in carrying on the affairs of the business. In the case of hospital records, medical personnel make life and death decisions as a result of reports and record entries. Such documents are true ‘business records,’ and their trustworthiness stems from the fact that they are ‘prepared for other use and only incidentally found pertinent to litigation.’ People v. Hobson, 369 Mich. 189, 119 N.W.2d 581, 588 (1963). By contrast the records here realistically cannot be said to have been prepared for any reason other than their potential litigation value. Therefore, when they are produced at trial in lieu of personal testimony, and are offered to prove the single most damaging fact against this defendant, they fall into the category of the dreaded ex parte affidavit. It was to prevent the use of just such documents that the Confrontation Clause was adopted. Mattox v. United States, 156 U.S. at 242-43 [15 S.Ct. 337]. (Moreover, we are not unaware that at the time they performed the tests and made the reports, both absent witnesses were employees of the State, the very party now prosecuting this defendant and offering against him evidence which consisted of certain items allegedly bought by another State employee.)

“Furthermore, the evidence wholly fails to meet the first two requirements. Clearly the reports contain ‘crucial’ evidence, evidence which constitutes an ‘essential element of the crime,’ i.e., the identity of the material in question as contraband. Yet we can find no reported cases in which the very identity of the evidence as contraband has been established by hearsay, with the possible exception of several cases involving the chemical analysis of alcohol. All of these cases predate Pointer, Barber, Green, and Dutton by some forty years. Commonwealth v. Stoler, 259 Mass. 109, 156 N.E. 71 (1927); State v. Torello, 103 Conn. 511, 131 A. 429 (1925); Commonwealth v. Slavski, 245 Mass. 405, 140 N.E. 465 (1923); Bracey v. Commonwealth, 119 Va. 867, 89 S.E. 144 (1916). Furthermore, all of them involved state statutes which explicitly authorized certification procedures in lieu of actual testimony by the person conducting the chemical analysis. By contrast, no such statutory authorization involving proof of controlled substances is provided under the Tennessee Code. See p. 14, infra.

“Addressing the last of the three criteria, we fail to find evidence that the State made what could be called a ‘good faith effort’ to secure the presence of the absent witnesses. As the United States Supreme Court noted in Barber v. Page:

It must be acknowledged that various courts and commentators have heretofore assumed that the mere absence of a witness from the jurisdiction was sufficient ground for dispensing with confrontation on the theory that ‘it is impossible to compel his attendance, because the process of the trial Court is of no force without the jurisdiction, and the party desiring his testimony is therefore helpless’ 5 Wigmore, Evidence § 1404 (3d ed. 1940). Whatever may have been the accuracy of that theory at one time, it is clear that at the present time increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law. 390 U.S. at 723-4 [88 S.Ct. 1318] (footnotes omitted).

The witness in Barber was needed in an Oklahoma state prosecution, but was incarcerated in a Texas federal prison at the time of trial. Under the Supreme Court’s ruling, if the Oklahoma prosecutor could not rely on the ‘unavailability’ in such a situation absent a good faith effort to obtain the presence of the witness at trial, then surely the prosecutor in the case before us has run afoul of the constitutional requirements of the Confrontation Clause. Here the witnesses’ absence was wholly temporary in nature and the problem was clearly and easily susceptible of correction by means of a continuance. See generally, McCormick, Evidence § 253 (2d ed. 1972). The case was down for first setting the defendant had been under indictment for few more than sixty (60) days, and there was (conveniently enough) a pending motion for a continuance, previously filed by the defendant. Given these circumstances it is difficult to see why the State failed to join in the motion or why the trial court failed to order a continuance, a course of action which would have foreclosed the very real possibility of later litigation concerning a violation of the defendant’s confrontation rights.

“We conclude that the laboratory reports fail to meet the basic requirements of the Confrontation Clause. Thus they must likewise fall under the guarantees of the Tennessee Constitution. It follows that their introduction into evidence violated the constitutional right of this defendant to receive a fair trial and that the case should be remanded for a new determination of his guilt or innocence.

“In reaching this conclusion, we are not unmindful of the recent opinion of the Washington Supreme Court in State v. Kreck, supra, which treats a problem somewhat similar to the one before us with an opposite result. There the court was asked to rule on the admissibility under the Uniform Business Records Act of a laboratory report of a blood test offered as evidence in a murder case, the test having been conducted to determine the presence or absence of chloroform in a blood sample taken from the deceased victim. The court held that although the chemist who ran the test was out of the country on business, the results could be introduced through the testimony of his direct supervisor. This witness ‘testified that while he did not personally conduct the test, he did confer with [the analyst] in his supervisory capacity and verified the test results.’ 542 P.2d at 784 (emphasis added).

“Several points of distinction between Kreck and this case appear obvious, in terms of the three-fold constitutional criteria developed above. First, the evidence at issue in Kreck was relevant only to the issue of the means of committing the alleged homicide, and did not establish an essential element of the crime, as does the identity of the evidence as contraband in the case before us. Second, the court’s determination of reliability in Kreck was undoubtedly influenced by the personal verification of the test results by the testifying witness. 542 P.2d at 784, 785. No such evidence of personal conference nor personal verification appears in the record before us. Finally, on the issue of availability, we note that the Kreck opinion, while it alludes to the Dutton v. Evans reliability requirement, fails to mention other recent United States Supreme Court decisions. Specifically, it omits any discussion of Barber v. Page, but instead holds that the applicable business records statute ‘contains no requirement that the person who prepared the record be shown to be unavailable before the record can be admitted.’ 542 P.2d at 787. This analysis begs the question. Although the state statute may contain no such requirement for purposes of qualifying the evidence as an exception to the hearsay rule, federal constitutional law governing confrontation in a criminal case quite clearly mandates either presence, California v. Green, supra [399 U.S.] at 157 [90 S.Ct. 1930], or unavailability coupled with proof of a good faith effort to secure attendance, Barber v. Page, supra [390 U.S.] at 724-25 [88 S.Ct. 1318]. Thus the major weakness in the Kreck opinion is its failure to recognize a fundamental distinction between the applicability of the business records exception in criminal as opposed to civil cases. While the successful invocation of a recognized hearsay exception may be more or less automatic in the latter situation, its utilization in the criminal setting is potentially restricted by the requirements of the Confrontation Clause.

“Finally, we have reviewed our own Supreme Court’s decision in State v. Robbins, 512 S.W.2d 265 (Tenn.1974). In that case the Court was called upon to decide the constitutionality of T.C.A. § 59-1049, which provides for certification of the results of laboratory tests conducted to determine the alcoholic content of blood. The statute further provides:

The certificate provided for in this section shall, when duly attested by the chief medical examiner or his duly appointed representative, be admissible in any court, in any criminal proceeding, as evidence of the facts therein stated, and of the results of such test if the person taking or causing to be taken the specimen and the person performing the test of such specimen shall be available, if subpoenaed as witnesses, upon demand by either party to the cause. . (emphasis added).

Thus the Robbins court concluded that the statute ‘does not require the testimony of unconfronted witnesses to be admitted into evidence but merely allows such evidence when the defendant does not object. . . ’ 512 S.W.2d at 268. In addition, it seems clear that the legislative intent underlying T.C.A. § 59-1049 is to promote efficiency while at the same time scrupulously to protect the criminal defendant’s confrontation rights. But here we have no authorizing statute, and here the defendant objected to the denial of his right to confront the witnesses against him.

“We are in sympathy with recent efforts to increase courtroom efficiency and we are in agreement with the progressive philosophy which holds that the truth-determining process in criminal cases should not be hindered by needless technicalities. One of the salutary manifestations of the trend toward effectuation of these two goals is the recent adoption in the federal court system of the Federal Rules of Evidence, which substantially expand the number of recognized exceptions to the rule against hearsay. The various state legislatures would do well to emulate the achievement of the federal courts in this area of the law. At the same time we are wary of the possible ill-effects that a decision other than the one we reach here would have on the administration of criminal justice in Tennessee and of its inevitable erosion of state and federal constitutional guarantees. If we were to allow the prosecution to prove the very essence of the crime charged by means of a written report, untested by cross-examination and submitted in lieu of the testimony of witnesses not truly unavailable, we would have taken a step backward rather than forward. Therefore the assignment of error addressed to the violation at trial of the defendant’s constitutional right to confrontation must be sustained.”

We concur in the conclusion of the Court of Criminal Appeals that in the face of an objection by the person charged, the State can not prove an essential element of a criminal offense by test results introduced through a witness other than the one who conducted the tests. If it were otherwise, the person charged with the offense would be denied his constitutional right to confront witnesses against him.

The judgment of the Court of Criminal Appeals, reversing the trial court and remanding the case for trial, is affirmed.

FONES, HENRY, BROCK, and HARBI-SON, JJ., concur.

OPINION ON PETITION TO REHEAR

The State of Tennessee has filed a pleading entitled “Petition to Rehear, or in the alternative, Motion for Certificate of Federal Question.” Basically, the State asks this court to reconsider and amend its judgment to reflect whether this court predicated its holding on the Sixth Amendment to the Constitution of the United States, or on Article 1, Section 9 of the Constitution of Tennessee, or upon both articles.

We see no need to amend or clarify the judgment in this case. Both the state and federal constitutions give a defendant in a criminal action the right to confront witnesses against him. It necessarily follows that when a defendant is deprived of that right, such deprivation violates both the Constitution of Tennessee and the Constitution of the United States.

      . Dr. Stafford testified he had not personally supervised the tests and had no independent knowledge of the nature of the substances tested.

      . The cases from other jurisdictions have gone both ways on constitutional questions involving the business record exception to the hearsay rule. See generally, Binder, the Hearsay Handbook 8-9, (1975). The Michigan courts, for example, long held that the Business Records Act was not applicable in criminal cases because of the constrictions of the Confrontation Clause. See, e.g., People v. Lewis, 294 Mich. 684, 293 N.W. 907 (1940), criticized but followed in People v. Gauthier, 28 Mich.App. 318, 184 N.W.2d 488 (1971), overruled in People v. Kirtdoll, 391 Mich. 370, 217 N.W.2d 37 (1974).


author: HARBISON, Justice.

text:
    METROPOLITAN LIFE INSURANCE COMPANY, Interstate Life and Accident Insurance Company, Fidelity Mutual Life Insurance Company and Jefferson Standard Life Insurance Company, Petitioners, v. Christine SMITH, Individually and Co-Executor of the Estate of Dr. Doyle J. Smith, Deceased, et al., Respondents.
    Supreme Court of Tennessee.
    Aug. 1, 1977.
    Dale Woodall, G. Wynn Smith, Robert M. Johnson, Susan Callison, Memphis, for petitioners; Canada, Russell & Turner, Cobb, Edwards, Hamlet, Nichol & Woodall, Memphis, of counsel.
    D. Jack Smith, Jr., J. N. Raines, Lucius E. Burch, Memphis, for respondents; Dann, Blackburn, Smith & Goldin, Burch, Porter & Johnson, Memphis, of counsel.
   OPINION

HARBISON, Justice.

Respondents sued four life insurance companies seeking double indemnity benefits for the alleged accidental death of the insured, Dr. Doyle J. Smith. The ordinary life benefits under each policy have been paid.

Respondents demanded a jury, but at the conclusion of their evidence in chief, the trial judge directed a verdict for the insurance carriers. The Court of Appeals reversed and remanded for a new trial, and this Court granted certiorari.

Although the Court of Appeals considered that legal questions were presented as to the interpretation of the policy provisions, we regard the issue primarily as one of the sufficiency of the evidence. The case presents a frequently litigated fact situation, where an insured suffering from an advanced disease sustains accidental injury by trauma and thereafter dies. The policies provide double indemnity for death resulting from accidental means, exclusive of all other causes and independently of preexisting disease.

There is no serious dispute about the known facts, nor have conflicting expert opinions been offered. The only question is whether a submissible jury issue was presented.

The insured, Dr. Doyle J. Smith, was 58 years of age at the time of his death. He had been actively engaged in Memphis as an orthodontist for many years. In 1961 he suffered a myocardial infarction and continued intermittently to have chest pains for the remainder of his life. He resumed his professional and other business activities after about four weeks, however, and was not again hospitalized for suspected heart disease until December 29, 1971. At that time he was complaining of chest pains and he remained hospitalized until January 8, 1972. Extensive tests were made in the hospital, and his attending physician testified that there was no evidence of a recent or further myocardial infarction. He concluded that Dr. Smith probably suffered from coronary insufficiency or from a hiatal hernia. The insured was discharged on medications designed to relieve either condition, including nitroglycerin and anticoagulants.

Dr. Smith returned to the practice of his profession for the next two weeks. He was seen twice in that period by his physician for chest pain, and again the doctor felt that this was due either to coronary insufficiency or to hiatal hernia.

On the evening of Sunday, January 23, 1972, Dr. Smith sustained a traumatic injury to his head while he was in or near his office. His wife testified that he had left his home on Sunday afternoon to visit his mother and was then planning to go to his office, as he frequently did. She did not hear from him again until very late on Sunday evening, when he returned home after midnight. Mrs. Smith had no discussion with him on that evening concerning any injury. When his business manager, Mrs. Nelson, opened the office early on Monday, January 24, 1972, however, she discovered blood in and around his office and washroom. Later Dr. Smith told her that he had fallen and struck his head on a credenza behind his desk. During the week he made statements to other persons that he had been hit over the head, and on the evening of Friday, January 28,1972 he stated to a witness that he had been struck in the parking lot. Dr. Smith thought that some boys who frequented the area had probably attacked him, but he made no complaint to the police, nor was any official investigation made of the incident until after his death.

Dr. Smith worked in his office on Monday, January 24 and during the next two days. He remained at home on Thursday but came to his office on Friday. He was seeing patients during the week, but he frequently complained of headache. On Wednesday night, he called the office of his doctor to ask for medication for relief of head and neck pain. A remedy was prescribed by telephone. On Friday he sent to his physician’s office for some medication for headache. Dr. Smith did not actually see a physician after his head injury until he was carried to the emergency room of the hospital late on the evening of Friday, January 28. At that time he was complaining of neck pain and severe chest pains. He was placed in the coronary care unit and treated during the next day for congestive heart failure. His attending physician did not examine his head or attempt to determine the extent of the head injury, apparently, until late on Saturday evening. Because the patient’s condition steadily deteriorated during the evening of January 29, his physician concluded that he could be suffering from internal bleeding or from increased intracranial pressure. He sought consultation from a neurosurgeon, but before an arteriogram could be made, the patient died.

At autopsy, Dr. Smith was found to be suffering from severe, advanced arteriosclerosis, to such an extent that one coronary artery was totally blocked and the other had sixty to eighty per cent blockage. The autopsy also revealed that the patient had “mild to moderate” subarachnoid hemorrhage in the occipital area, due to the accident which had occurred on January 23. There was also a laceration and hemorrhaging into the skin of the scalp.

There were objections at the trial to some of the lay testimony, but questions of admissibility are not presented on this appeal. It is not contended that the lay evidence alone established a prima facie case, under the policy provisions. As in most cases of this nature, the cause of death and the relationship between death, the accident and pre-existing disease had to be established by expert testimony.

The only expert witness who testified was the attending physician, Dr. George Nichopoulos. He was examined at length by counsel for all parties. His professional opinion was that the traumatic injury sustained by Dr. Smith on January 23 was the “predominant cause of death,” but throughout his testimony he stated that the advanced coronary artery disease was also a causative factor in producing death. He testified that a combination of the traumatic injury and the underlying disease produced death and that in his opinion neither, acting without the other, would have been fatal.

In response to questions by counsel for the insurance companies, Dr. Nichopoulos testified that the coronary artery disease and myocardial fibrosis from which the insured was suffering “contributed directly” to his death and that he presumed that without these pre-existing diseases, Dr. Smith probably would not have died. He further testified that the diseases from which Dr. Smith was suffering “indirectly” caused his death. In response to questions by counsel for the respondents, on redirect examination, Dr. Nichopoulos testified that the pre-existing disease played a “less than concurrent” role in his death, but “between secondary and concomitant, somewhere in there.”

The insured expired from congestive heart failure, resulting from a build-up of fluid or blood in the lungs. Dr. Nichopoulos testified that the head injury, through either pain or internal bleeding, could have triggered or set in motion this congestive heart failure. However, he testified that the advanced arteriosclerosis in the coronary arteries was the “main thing”, from the standpoint of underlying disease, which contributed to the congestion. The autopsy revealed that the patient was suffering from a number of other chronic conditions or diseases, such as gout and a liver disease, but it is not contended that any of these conditions actively caused or contributed immediately to his death.

In reviewing the record, the Court of Appeals concluded that “there was testimony from which a finder of fact could have found that pre-existing diseases did contribute in some degree to the death of Dr. Smith.”

Our review not only confirms this conclusion, but we are unable to find any material evidence from which a finder of fact could conclude that the pre-existing diseases did not contribute in an active and measurable degree to the death, or that death would have occurred had the coronary artery disease not been a substantial causative factor. Under these circumstances, we are of the opinion that the insurance carriers are not liable under the terms of their contracts.

Unlike policies of ordinary life insurance, the terms and conditions under which an insurance carrier is obligated to pay “additional benefits in the event of death by accident or accidental means” may be specifically limited. T.C.A. § 56-1112(e). For a relatively small premium, in addition to the ordinary life rate, each of the policies in the present case required the carrier to pay double indemnity upon proof that the death of the insured occurred from bodily injury as the result “directly and independently of all other causes” of “external, violent and accidental means.” Each of the policies further limited the risks assumed by specifically excluding death resulting directly or indirectly from a number of different causes, such as the commission of a felony, suicide, and unscheduled travel by aircraft. Each policy also provided that double indemnity would not be payable if death resulted directly or indirectly from illness or disease of any kind.

These provisions are standard, and have been used in double indemnity riders for many years. Necessarily they are expressed in general terms, and the fact situations to which they may have application are myriad.

The parties suggest in their briefs that the Tennessee courts have not been consistent in their construction and application of such policy provisions, and it is suggested that there are at least two different lines of authority, or two different approaches, found in the reported cases in this state. The Court of Appeals further stated that there had never been a case in this state construing the “exclusionary language” of the double indemnity riders, pertaining to illness or disease, as against the “coverage” clauses providing benefits for death by accidental means.

An examination of the decisions in this and other states does, indeed, reflect divergent results in a number of cases, but in almost every instance the opinion deals with the evidence contained in the particular record. In most of the cases, the court has been concerned either with the sufficiency of evidence to make a submissible jury issue or with jury instructions which were granted or denied.

The Court of Appeals placed great emphasis upon the decision of the Court of Appeals for the Sixth Circuit in the case of Ore v. Aetna Life Ins. Co., 435 F.2d 957 (6th Cir. 1970). In that case, however, the appellate court was concerned exclusively with jury instructions given in the trial court. As to the evidence, the opinion states:

“The proof at trial was in conflict. Numerous medical experts testified as to the cause of death and their conclusions were at variance.” 435 F.2d at 958.

This has been true in a number of other cases, where issues were submitted for jury determination upon conflicting expert medical evidence.

One of the cases most relied upon by respondents is North American Ins. Co. v. Ellison, 37 Tenn.App. 546, 267 S.W.2d 115 (1954). There a jury verdict had been returned in favor of the beneficiary, upon testimony by the attending physician that the cause of death was a massive pulmonary edema, or filling of the lungs with fluid. He felt that this resulted from a blood clot due to inactivity of the elderly insured who had been hospitalized following a fall in which her ankle was fractured. There was conflicting medical testimony, particularly from a pathologist, who failed to find such a blood clot upon autopsy. The insurer insisted that death was due to hardening of the arteries and other natural causes. The Court of Appeals held, quite properly, that there was a jury issue as to whether the attending physician or the pathologist was correct. The Court stated that if a pre-existing disease or other infirmity is present merely as a “predisposing infirmity” and is not a primary or active cause of death, then there still may be recovery if trauma or accident can be shown to be “the efficient and predominating” or “proximate” cause. It noted as being “a correct statement of the law” a proposed instruction that there could be no recovery if disease “actively contributes to the death of the insured.” 37 Tenn.App. at 554, 267 S.W.2d at 118.

In that case, the Court reviewed earlier decisions in which recovery had been denied, particularly Wheelock v. Provident Life & Accident Co., 10 Tenn.App. 184 (1929), and Provident Life & Accident Insurance Co. v. Campbell, 18 Tenn.App. 452, 79 S.W.2d 292 (1935).

All of these cases were discussed by this Court in the case of Britton v. Prudential Ins. Co. of America, 205 Tenn. 726, 330 S.W.2d 326 (1959), in which the Court sustained a directed verdict for the insurance carrier. In that case the policy contained provisions similar to those involved in the present case, including an exclusionary clause for death resulting directly or indirectly from bodily or mental infirmity or disease in any form. Reviewing the medical testimony, the Court stated that even the physicians testifying for the insured found advanced arteriosclerosis to be a causative, operative factor in producing an acute coronary thrombosis. The Court found that the “strongest statement” in favor of the insured was testimony of one of the physicians that the accident only “indirectly” brought about the thrombosis and was “a contributing cause” to his death.

In the later case of Fireman’s Fund Ins. Co. v. Glanton, 224 Tenn. 213, 452 S.W.2d 861 (1970), the Court upheld a jury verdict where the insured sustained injuries and was hospitalized following an automobile accident. He was suffering from pre-exist-ing arteriosclerotic heart disease. His attending physician testified that the accidental injuries “caused his blood pressure to drop and that he went into shock that precipitated the development of a clot which caused the heart to stop functioning.” 224 Tenn. at 217, 452 S.W.2d at 863. The Court held that the testimony of the physician was “substantial and credible,” and that a jury issue was presented as to whether death did result from the accident, directly and independently of all other causes. It did not discuss the effect of the heart disease except to say that it was “serious” and that without it the insured “might not” have died from the accident. It distinguished Britton on the facts, not upon any rule of law, and simply concluded that the record contained material evidence to support a jury verdict.

We do not regard these cases as being legally inconsistent, or as necessarily presenting different or conflicting approaches to the problem at hand. Unfortunately, we cannot, as the parties ask in their briefs, lay down rules or “tests” which will lead infallibly to a solution of the difficult and complex problems which arise in this area. Necessarily each of the cases depends upon the facts and circumstances shown in the evidence, particularly the medical opinions, which are not always consistent or harmonious.

The companies do not insist, nor would the courts sustain an insistence, that the mere fact an insured is suffering from a disease automatically, in and of itself, pre-eludes recovery of double indemnity benefits. Obviously, a cancer-ridden patient may still ride in a scheduled airliner and be killed when it crashes, independently of any other cause or of the operation of his disease. On the other hand, if such a patient falls and dies after he sustains an injury which ordinarily would not be fatal, then a difficult question may be presented as to the degree and extent, if any, to which death resulted from the fall or from the disease. The issue is usually resolved by medical testimony, and, if there is conflicting expert opinion, a jury issue may well exist.

As stated previously, we are not concerned in the present case with the nature or type of instructions which should be given to the jury or with rules as to burden of proof, except in the narrow sense of determining whether or not respondents made a prima facie case for determination by a jury.

Unlike the Court of Appeals, we are unable to conclude that the “exclusionary” language of the present policies should not be applied as written. We agree with that Court that in many situations such clauses may be redundant, and may add little, if anything, to the basic terms and provisions of the “coverage” clauses. Again, this depends upon the facts. Exclusionary terms in particular circumstances may refine or limit coverage, such as those exclusions dealing with the commission of a felony or an unscheduled plane flight. In the present case, the language of the exclusionary clauses makes clear the intention of the insurers, if such intention was not already manifest in the words “directly and independently of all other causes”, that the carriers do not contract to provide double indemnity if it requires an active combination of a pre-existing disease and an accidental injury to produce death. The only professional opinion offered here was that such a combination was necessary and did in fact occur. It simply did not eliminate the advanced arteriosclerotic disease as a causative and material factor in the death of the insured, or leave conflicting permissible inferences in that regard.

In our opinion, the trial court reached the correct result, and petitioners were entitled to a directed verdict on the trial record. The judgment of the Court of Appeals is reversed, and the judgment of the trial court is reinstated at the cost of the respondents.

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

      . See generally 1A, Appleman, Insurance Law and Practice § 403 (1965); 10 Couch, Insurance § 41:380 (2d ed. 1962); Annot. 84 A.L.R.2d 176 (1962); 82 A.L.R.2d 611 (1962).

      . As exhibits to the doctor’s deposition, there were introduced the death certificate, medical records and the autopsy reports. In all of these it was stated that there was a recent myocardial infarction, but Dr. Nichopoulos testified that this was not borne out, in his opinion, by the microscopic findings of the pathologist. He nevertheless included it in all of his reports to the insurance companies. The postmortem protocol listed “Coronary artery disease, severe,” as a “primary diagnosis,” and the head injuries as one of several “secondary” diagnoses. Dr. Nichopoulos disagreed only in that he thought the head injury should be in the “primary” category. Primary diagnoses, he said, are those “directly related to the cause of death.”

      . For other cases dealing with sufficiency of the evidence in accidental death-disease claims, see National Life & Accident Ins. Co. v. Follett, 168 Tenn. 647, 80 S.W.2d 92 (1935) (jury issue on conflicting medical testimony); Hughes v. Kentucky Central Life Ins. Co., 500 S.W.2d 442 (Tenn.App.1973) (jury issue on lay testimony and conflicting death certificates); Reserve Life Ins. Co. v. Whittemore, 59 Tenn.App. 495, 442 S.W.2d 266 (1969) (evidence insufficient to eliminate preexisting disease as causative factor).

      . See Gilmore v. Continental Cas. Co., 188 Tenn. 588, 591, 221 S.W.2d 814, 815 (1949) (if policy provisions are clear, “there is no judicial duty but to give the language its usual and ordinary meaning.”)

      . The Jefferson Standard policy in the instant case excluded death resulting from homicide. Although this was raised as a defense, the record clearly does not justify a directed verdict for the insurer under that exclusion, and the trial court did not so hold.