author: RENDLEN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Carl James BOLLINGER, Defendant-Appellant.
    No. 37647.
    Missouri Court of Appeals, St. Louis District.
    April 19, 1977.

      Albert C. Lowes, David G. Beeson, Buer-kle, Buerkle & Lowes, Jackson, for defendant-appellant.
    A. J. Seier, Pros. Atty., William L. Syler, Asst. Pros. Atty., Cape Girardeau, for plaintiff-respondent.
   RENDLEN, Judge.

Carl James Bollinger appeals his conviction of driving in excess of 55 miles per hour, alleging as error: (1) that evidence of speed determined by a radar device was inadmissible because the device and its testing systems had not been properly checked for accuracy; (2) improper admission of hearsay evidence concerning defendant’s speed and vehicle description; (3) prejudicial limitation of appellant’s cross-examination relative to bias and personal interest of the state’s witness; and (4) the court’s improper refusal of defendant’s offered instructions.

On April 5, 1975, highway patrolmen John Norman and Sgt. Edwin Wright set up a radar speed check on East-West Highway # 72 in Cape Girardeau County. Norman operated a hand-held radar device from the front seat of his automobile positioned on a gravel road about 150-200 feet south of the highway, while Wright, in another car, located over the crest of a hill about one-fourth mile west of Norman’s position, served as the pickup and arresting officer. Shortly before the arrest, Norman had checked the speed gun with an internal calibration device and a tuning fork. The first test was performed by pushing a button on the gun, activating the internal calibration device and noting the digital readout. If the “proper” number appeared, the test was considered complete. The tuning fork used in the second test was designed to vibrate at a given frequency which translated to miles per hour when held before the radar gun. If the radar gun read the “correct” speed, i. e. that corresponding to the frequency of the fork, the device was deemed functional and accurate. Norman admitted that neither the internal calibration device nor the tuning fork had been checked for accuracy at any time after receipt from the manufacturer.

At about 5:10 p. m. appellant, driving a pickup truck west on Highway # 72, was shown by the radar to be traveling 66 miles per hour. Norman radioed the speed and description of appellant’s vehicle whereupon Wright flagged down appellant and issued the speeding violation summons.

Appellant contends the radar evidence was inadmissible as no sufficient showing had been made that either of the devices used to test the radar were themselves accurate. This contention must be sustained. In City of Ballwin v. Collins, 534 S.W.2d 280 — Sl[l, 2] (Mo.App.1976), it was held, that as a foundation for radar speed evidence, the speedometer must have been carefully checked for accuracy at or near the time of its use in traffic regulation and the testing equipment also adequately tested. Here as in Collins, though an internal calibration and a tuning fork test had been performed, neither of the testing devices had been checked. Additionally in Collins, a patrol car was driven through the check zone at a constant speed to test the radar equipment but the car’s speedometer had not been recently tested. The court held, as we do here, that tests performed with devices whose accuracy had not been shown, would not render radar speed evidence admissible. For this reason the judgment must be reversed. Trooper Norman testified, that though he could not state the exact speed of defendant’s truck, he was able to form an opinion independent of the radar gun, that appellant was exceeding the lawful limit. While questions remain whether a proper foundation had been laid for this opinion evidence, we cannot say that on retrial the state will be unable to present a submissible case. Compare City of Ballwin v. Collins, supra at 281; City of St. Louis v. Boecker, 370 S.W.2d 731, 737[6] (Mo.App.1963). Accordingly the cause is remanded for retrial. State v. Sockel, 490 S.W.2d 336, 340[6] (Mo.App.1973).

Turning to matters which may reoccur on retrial, appellant argues his arrest was illegal as the offense charged was a misdemeanor not committed in the presence of the arresting officer whose only knowledge of the offense was that received in the radio transmission from the radar officer. Section 43.195, RSMo 1969, provides: “Any member of the Missouri State Highway Patrol may arrest on view, and without a warrant, any person he sees violating or whom he had reasonable grounds to believe has violated any law of this state relating to the operation of motor vehicles.” Radio communications from police officers have been recognized as sufficient to establish probable cause, State v. Ward, 457 S.W.2d 701, 706 (Mo.1970), thus the evidence supports the warrantless arrest.

Appellant contends however that Wright’s testimony of Norman’s radioed description of appellant’s car and the speed of that car was inadmissible hearsay. The court properly struck Wright’s testimony that Norman had radioed that Bollinger was driving “66 miles per hour”. Other portions of Wright’s testimony concerning Norman’s radio transmissions were similarly subject to proper objection as hearsay and appellant’s contention in this regard is well taken and should be so regarded in any further proceedings.

For his next point, appellant correctly states that a witness’ interest in the result of the action or his bias in favor or against any of the parties may be shown as bearing on the witness’ credibility. Measured against this general principal, it appears the trial court may have unduly restricted appellant’s cross-examination of the state’s principal witnesses. Appellant sought to impeach the state highway patrolman by presenting evidence of the alleged “quota system” for arrests and its relation to the Highway Patrol promotion system. During this cross-examination, appellant was permitted to develop that the Highway Patrol does record and apparently disseminates information concerning the number of each trooper’s monthly arrests or “contact[s] with the public”. While the court restricted further cross-examination on this subject, it is doubtful from the record if additional facts relating to an alleged “quota system” and its possible connection to a Highway Patrol promotion system could have been established by that witness. While such facts, if they exist, might be shown by other witnesses, the question need not be considered further on this appeal as the issue may not occur in the same manner on retrial.

Finally, appellant contends the court erred refusing all of his requested instructions. The court’s refusal to give proper instruction offered by the defendant on retrial would be error, State v. Kramme, 491 S.W.2d 24, 27 (Mo.App.1973), the prejudicial effect of which could well serve as a basis for setting aside a verdict.

The cause is reversed and remanded.

McMILLIAN, P. J., and STEWART, J., concur.

      . In the case at bar, the state’s witness testimony that a “certified tuning fork which comes from the factory” was used to test the machine fails to fill acceptable testing requirements.


source: Caselaw Access Project

author: McMILLIAN, Presiding Judge.

license: Public Domain

text:
    William RAMACCIOTTI, Plaintiff-Respondent, v. Fred ZINN, Defendant-Appellant.
    No. 37936.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 19, 1977.

      Phillip E. Fishman, University City, for defendant-appellant.
    Cook, Murphy, Lance & Mayer, Daniel J. Murphy, St. Louis, for plaintiff-respondent.
   McMILLIAN, Presiding Judge.

Defendant appeals from a jury verdict awarding plaintiff $10,000 in actual and punitive damages on plaintiff’s four-count libel and slander action. The suit originally contained five counts but plaintiff voluntarily dismissed Count II. Count I was based on an allegedly defamatory memoranda; Counts III, IV and V involved allegedly slanderous incidents. Recovery on defendant’s counterclaim, premised on slander of defendant by plaintiff, was denied by the jury.

On appeal, defendant contends that the trial judge should have directed a verdict for defendant on Count I at the close of plaintiff’s evidence because: (1) plaintiff failed to prove publication of the memorandum which forms the basis of Count I; (2) the contents of the memorandum were substantially true; (3) defendant had an absolute privilege to forward an internal communication containing information critical of a subordinate to another city official, and (4) the contents of the memorandum should at least to qualifiedly privileged and no malice was shown. In addition, defendant • claims entitlement to a directed verdict on Counts III, IV and V of plaintiff’s petition, the slander counts, on the ground that the statements were not actionable per se and that plaintiff failed to prove publication of the allegedly slanderous statement. Defendant further asserts on a variety of grounds, that the jury verdict was excessive. Finally, defendant contends that error in the verdict director as to Count I necessitates a new trial.

We agree with defendant that the error in the verdict director mandates a new trial, but reject all of defendant’s arguments as to the propriety of a directed verdict.

During the pendency of this appeal, defendant Fred Zinn died and his wife, the executrix of his estate, was substituted as a party.

At the time of trial in January, 1975, plaintiff Ramaeciotti had been a police officer for the City of Webster Groves for ten and one-half years and had held the rank of sergeant for five and one-half years. There was some testimony that plaintiff had a general reputation of questioning the orders of superiors. At the same time, Ra-macciotti had received eleven commendations during his period of service. Defendant Zinn had been with the Webster Groves Police Department since 1948 and was Chief of Police from 1964 to 1974.

As of July 1973, the only detrimental information that Zinn knew about Ramac-ciotti was that “. . . he was a loner and Captain Potthoff and Colonel Kuhl-mann had advised me prior to that that he constantly questioned orders [t]hey implied . . . that he was ob-structionary. . . . ” Nevertheless, early in July of 1973, Zinn offered Ramaeciotti a promotion to lieutenant. Ramaeciotti told Zinn that he could not accept the promotion because he intended to leave the department in the near future. At trial, however, Ramaeciotti testified that his real reason for refusing the promotion was certain conditions placed on the promotion by Zinn. Allegedly, Zinn suggested to Ramac-ciotti that as a lieutenant he would be in a position to gather information on a certain captain whose dismissal Zinn felt was warranted. Zinn contended that if any such proposition was made it was only intended in terms of acquiring information to assist this captain in improving efficiency and morale.

On July 16, 1973, Zinn inserted a memo into Ramacciotti’s personnel file noting Ra-macciotti’s rejection of the promotion and the reasons stated for the refusal and “. . . suggesting that Sgt. Ramaeciotti seperate (sic) from this Dept through Voluntary Resignation in the best interest of Dept efficiency.” Zinn did admit that he was disappointed that Ramaeciotti refused the promotion.

On the same day, Ramaeciotti met informally with Kenneth Thein, a member of the Police Advisory Board. Ramaeciotti advised Thein of the proposition and the conversations he had had with Zinn regarding the promotion to lieutenant. As directed by Thein, Ramaeciotti later submitted his grievances against Zinn in writing to' be forwarded to the City Manager and the Police Advisory Board. Sometime shortly after July 16, 1973, Zinn went to Thein and requested a copy of Ramacciotti’s complaint. Thein refused to give Zinn a copy of the complaint.

On September 15, 1973, on Zinn’s recommendation, Ramaeciotti was demoted to the rank of patrolman for failure to follow the Webster Groves Police Department chain of command by filing his grievance with the Police Advisory Board.

On September 16, 1973, at a squad meeting for Ramaceiotti’s shift, the incident occurred which formed the basis of Zinn’s counterclaim. Zinn contends that Ramac-eiotti made a slanderous statement to others present at the meeting as to Zinn being under investigation by the FBI for misappropriation of federal funds. Ramaeciotti and his witnesses testified that he merely asked a question to clarify a rumor that Zinn was under FBI investigation. Ramac-ciotti claimed that Thein had related this rumor to him. Thein denied this.

Approximately an hour after the squad meeting, Ramaeciotti was summoned to Zinn’s office. Zinn said that he called Ra-macciotti to his office to clarify the situation about the statement in the squad meeting. Ramaeciotti refused to enter Zinn’s office unless accompanied by a witness of his choice to guard against the possibility of misquotation. Zinn then issued a direct order to Ramacciotti to enter the office or face immediate suspension for an indefinite period. Ramacciotti refused to comply with the direct order and was immediately suspended.

Ramacciotti appealed the September 15 demotion and the September 16 suspension to the Webster Groves Personnel Board. Zinn testified at the hearing. On November 24,1973, the Personnel Board reinstated Ramacciotti to the rank of sergeant finding that:

“The fact that he did, in this instance, go outside the chain of command to seek assistance in resolving a complaint which he had against his department head might be interpreted as insubordination. However, the Board feels that his action was the result of the lack of clear-cut procedures for handling this type of complaint rather than insubordination.”

The Personnel Board also apparently considered the issue of Ramacciotti’s September 16 suspension and found a two-month suspension warranted.

Under procedures of the City of Webster Groves, determinations .of the Personnel Board are reviewed by the City Manager who may either accept the Personnel Board’s recommendations or make an independent determination. On October 29, 1973, before City Manager Siems had made his decision, Zinn prepared a memorandum which forms the basis of Count I of Ramac-ciotti’s petition. The memorandum stated that:

“October 29, 1973
“To: Fred Siems, Acting City Manager From: Fred L. Zinn, Chief of Police Subject: Ptn. William Ramacciotti “Sir:
This memorandum has been prepared to bring to light certain facts that were deliberately withheld at the appeal on the part of Ptn. Ramacciotti for reinstatement, before the Board of Personnel. “The facts contained herein were withheld to protect the City Council, the City Manager and the Police Department from adverse publicity through the news media. Preoccupation in my normal duties have precluded my noting exact times and dates of unpleasant behavior on the part of police officers; hence, the information forwarded here alludes to Ptn. Ramacciotti’s attitude and insolent behavior over the past several years. “Item: Lt. E. R. Potthoff, retired, complained repeatedly that Ptn. Ramacciot-ti’s attitude was consistently arrogant and insolent.
“Item: Lt. Col. Henry Kuhlmann complained that Ptn. Ramacciotti continually questioned supervisors as to the appropriateness of assignments.
“Item: Major Clyde Wallace has complained that Ptn. Ramacciotti was, at least on one occasion, out of uniform, and wore a firearm that was not acceptable to the chief’s office, even after having been advised not to wear weapons of that character.
“Item: Major James E. Scavatta stated that Ptn. Ramacciotti was a trouble maker within the department as he was vicious and treacherous.
“Item: Capt. Earl Reiner asked that Ptn. Ramacciotti be assigned to units other than that unit under Capt. Reiner’s command. Capt. Reiner stated that from his personal observations, Ptn. Ramacciotti was arrogant overly critical of Department policies and programs, and was, in fact, a dissident.
“Item: Mr. William Symes complained to the Chief of Police that Ptn. Ramacciotti appeared before an executive meeting of the City Council and appeared arrogant and through his (Ramacciotti’s) dialogue, attempted to speak “down” to the Council.
“Item: Lt. Det. Jack V. Crittendon complained that he had suggested to Ptn. Ramacciotti that, the;.Department’s'-telephone and radio recording tapes were out and should be replaced, and he, Ramac-ciotti, said ‘fuck you and fuck the tapes, too.’
“Item: Lt. Delmont Reinemer complained that Ramacciotti insulted him in public saying in presence of others, ‘What are you — Zinn’s butt boy?’
“Item: Chief Fred L. Zinn has on at least 12 occasions attempted to discuss this and other matters with Ramacciotti in an attempt to get to the bottom of his problems, and on each of these occasions Ra-macciotti refused to discuss the matter. “Item: Lt. David Westbrook stated that Ramacciotti openly and in the presence of other officers stated, ‘the FBI is investigating Chief Fred Zinn for misappropriating federal funds.’ Ramacciotti was given direct orders on three straight occasions to enter the police chief’s office and discuss this matter and refused to comply with these orders.
“You are further advised that Major Wallace and Major Scavatta were promoted over Captain Otto Piffel as a result of what I considered a better work performance record by Majors Wallace and Scavatta and on the advice of Lt. Col. Henry Kuhlmann.
“Lt. Col. Kuhlmann while on the stand at the hearing stated that there was dissension from within the Chief’s office. This statement is true; however, that dissension involved only Col. Kuhlmann and the Chief of Police. Over the past 10 years as Chief of Police, I have made mistakes on numerous occasions. I have inadvertently hurt the pride of Col. Kuhlmann and Captain Piffel through administrative action which I deemed to be in the best interest of the community. I have never willingly and knowingly hurt anyone. In the interest of police morale, which is down at this time due to the aforestated occurrences, I am strongly urging you to deny reinstatement of Ptn. Ramacciotti to the rank of Sgt. irrespective of what decision the Board of Personnel might make.
“Finally, in the interest of a better community and my personal health, I may have to retire from my office as Chief of Police in Webster Groves. I am deeply involved in many very serious and sensitive community programs related to delinquency control, through improved living conditions and quality of life. Our records of success in these programs and other law enforcement programs are most promising.
“I want to continue working in these areas if at at all possible.
“I am, therefore, strongly urging you to weigh all of the facts including this document, prior to a decision of reinstatement with respect to Ptn. Ramacciotti.
“It is my judgment that reinstatement would have a devastating effect upon our Police Department, morale will decrease, and crime and delinquency might well rise.”

At some point, Ramacciotti removed a copy of this October 29 memorandum from Zinn’s office and showed it to his wife and his attorney. Ramacciotti also testified that he questioned the persons named in the memorandum as to the accuracy of the statements attributed to them. City Manager Siems was unable to recall from whom he had received the memorandum. Zinn, however, admitted “eventually” sending the memorandum to Siems. Zinn also admitted that he had discussed the memorandum with Majors Wallace and Scavatta.

Defendant’s Exhibit B was a memorandum by Joseph Morrison, City Manager of Webster Groves after January, 1974, stating his formal findings and conclusions as to the disciplining of Ramacciotti. According to paragraph 5 of defendant’s Exhibit B—

“On November 30, 1973, an informal hearing was held before the then acting City Manager, Frederick R. Siems, Jr., who partially reinstated the pay of Patrolman Ramacciotti to that of Sergeant from and after October 16, 1973, but sustained the suspension from September 16 to October 16, 1973 (in the meantime, Patrolman Ramacciotti was reinstated as Sergeant under a separate proceeding before the Personnel Board of the City of Webster Groves, whose recommendation was accepted by the Personnel Director).”

The background facts above lead us to agree with the finding by the City Manager as stated in Defendant’s Exhibit B that . on and after July 2, 1973, the relationship between the Chief of Police and Ramacciotti had broken down to the point where they were not getting along, and there was mutual mistrust.”

As previously noted, Count I of Ramac-eiotti’s petition was based on allegedly libelous statements in the October 29 memorandum. Ramacciotti’s petition isolated as libelous six of the ten “items” contained in the original memorandum. For our review purposes, it is unneccessary to describe in detail the allegations and counter-allegations surrounding the individual items. Suffice it to say, that Ramacciotti produced four of the five persons to whom statements in the memoranda were attributed and each witness either totally denied making any such statements to Zinn (Reiner) or couldn’t recall making any such statement to Zinn (Kuhlmann, Reinemer) or testified that the statement in the memorandum was an inaccurate representation of anything said to Zinn (Scavatta). The remaining “item” referring to Lieutenant Crittendon was characterized by Ramacciotti as implausible in light of the fact that he was not under Crittendon’s supervision and had no responsibility for maintenance of the tapes. In response to this testimony, Zinn asserted that the contents of the memorandum were accurate and substantially true but admitted that some of the “items” were paraphrases of complaints. On cross-examination, Zinn testified that most of the complaints included in the memorandum occurred prior to July, 1973, the date of the offer of promotion to Ramacciotti. Zinn stated that when he sent the memorandum, he did not intend to expose Ramacciotti to hatred or contempt or injure him in his occupation but rather sent the memorandum because “. . .it was my judgment, my professional judgment that Patrolman, Ramacciotti was a trouble .ipaker . ” and because he thought that under police rules he was obligated to forward the memorandum to the City Manager who was to rule on the discipline action.

Count III of plaintiff’s petition alleged slander in that:

“2. . . . while in the presence and hearing of Major Clyde Wallace, defendant maliciously and falsely spoke of and concerned (sic) plaintiff the following statement or a statement substantially identical thereto: ‘Captain Reiner told me that Ramacciotti said you were yellow for not joining the Police Association.’ ”

Ramacciotti denied making any such statement. Reiner denied making any such statement to Zinn. Zinn admitted making the statement to Wallace.

Count IV of plaintiff’s petition alleged slander in that:

“2. . . . while in the presence and hearing of Major James Scavatta, defendant maliciously and falsely spoke of and concerned (sic) plaintiff the following statement or statements substantially identical thereto: ‘Ramacciotti referred to you as a snake.’ ”

Ramacciotti denied making any such statement. Scavatta testified that Zinn made the statement to him. Zinn admitted making the statement to Scavatta, allegedly to clarify a rumor.

Count V of plaintiff’s petition alleged slander in that:

“2. . . . while in the presence and hearing of City Manager Joseph Morrison, defendant maliciously and falsely spoke of and concerning plaintiff the following statement or a statement substantially identical thereto: ‘Ramacciotti’s only goal is to embarrass the City as much as possible and then get the hell out.’ ”

Ramacciotti denied any intent to embarrass the city. Zinn admitted making the statement but claimed that his statement was in the course of a conversation with Morrison in which Morrison first stated his hope that Ramacciotti would quit. In addition, Zinn claimed that Scavatta had first told him that Ramacciotti’s goal 'was . to embarráss the city and then leave. Scavatta denied making any such statement to Zinn and denied that Ramacciotti had ever expressed such a sentiment to him.

As previously noted, a jury returned verdicts for plaintiff on all counts and against defendant on his counterclaim. This appeal followed.

Defendant Zinn first contends in a tripartite argument that the trial court should have directed a verdict for him at the close of plaintiff’s case because plaintiff’s evidence failed to prove publication. Defendant relies on Hellesen v. Knaus Truck Lines, 370 S.W.2d 341 (Mo.1973) for the proposition that “. . communications between officers of the same corporation in the due and regular course of the corporate business, or between different offices of the same corporation, are not publications to third persons. . . .” Id. at 344. See also 50 Am.Jur.2d, Libel and Slander, § 167. Defendant further contends that in light of the very close relationship between the chief of police and the city manager during disciplinary proceedings, as reflected in sections of the Webster Groves city code, the Hellesen rule as a matter of law precludes a finding of publication. Defendant’s argument is unconvincing for several reasons. First, defendant failed to raise this argument in any post-trial motions and, therefore, failed to preserve the argument for appellate review, Rule 84.-13(a), V.A.M.R. Secondly, we note that the act found insufficient to establish “publication” in Hellesen was the corporate defendant’s placement of a critical memorandum in its own corporate files which act the court viewed as the corporation merely communicating with itself, Hellesen v. Knaus Truck Lines, supra, at 344. In the present case, circulation of the October 29 memorandum was much more widespread in that defendant sent the memorandum to the city manager and discussed the memorandum with Majors Wallace and Scavatta. Finally, the memorandum may not have been sent “. . .in the due and regular course of the corporate business. . . . ” Id. at 344. The city code provisions characterized by defendant as evidence of the close relationship between the chief of police and the city manager were never introduced at trial and we cannot take judicial notice of municipal ordinances, see cases collected at Mo.Digest, Evidence, Key 32. In addition, defendant was given and did utilize the opportunity to testify at plaintiff’s disciplinary hearing.

As the second subcontention, defendant argues that the evidence failed to prove any publication which would subject him to liability because plaintiff himself voluntarily disclosed the memorandum after removing it from defendant’s office. We recognize the general rule that communication of libelous matter only to the plaintiff who then discloses the information to third parties does not subject defendant to liability, see generally, Annot., 92 A.L.R.2d 219.

The general rule is not, however, designed to insulate a defendant from any liability for libel regardless of his actions simply because the plaintiff discussed the libelous matters with others. Rather, under the general rule, the defendant is freed from liability in appropriate situations because his only act is communicating to the plaintiff. In the present case, however, the defendant admitted preparation of the defamatory memorandum and that he eventually sent it to the city manager. The general rule, therefore, is inapposite to the present case.

Defendant’s admission that he eventually sent the memorandum to the city manager also serves to rebut his third sub-contention that there was no proof of publication by defendant. As a general rule if there is conflicting evidence as to publication, or the evidence is susceptible to different inferences, the question of the sufficiency of publication is to be resolved by the jury, see 50 Am.Jur.2d, Libel and Slander, § 151.

We conclude, therefore, that “publication” of the memorandum was sufficiently proven to preclude the trial judge’s direction of a verdict for defendant.

Defendant further suggests that he was entitled to a directed verdict on Count I at the close of all the evidence because the contents of the memorandum were substantially true. Defendant testified that the “items” in the memorandum were substantially true. The alleged makers of the statements, however, repudiated the statements in whole or in part. The jury was properly instructed on the defense of truth, M.A.I.-Civil 32.12. In the presence of such conflicting evidence, the question of truth was properly sent to the jury for resolution, Moritz v. Kansas City Star Co., 364 Mo. 32, 258 S.W.2d 583, 590 (Mo.1953).

Defendant next contends that the trial court should have either dismissed plaintiff’s petition or granted a summary judgment for defendant on the basis that he had an absolute privilege to prepare and forward the critical memorandum. Defendant correctly reports that there is a growing trend to expand the class of persons protected by absolute privilege, see generally, Annot., 26 A.L.R.3d 492; 50 Am. Jur.2d, Libel and Slander, §§ 193, 194, 224, 225. In Missouri, however, absolute privilege “. . .is confined to relatively few situations. It is accorded to judicial proceedings, legislative proceedings, proceedings of executive officers charged with responsibility of importance, publications made with the consent of the plaintiff and communications between husband and wife. . ” Williams v. School Dist. of Springfield R-12, 447 S.W.2d 256, 269 (Mo. 1969); Pulliam v. Bond, 406 S.W.2d 635, 640 (Mo.1966). The grant of an absolute privilege is designed for those situations where “. . . [T]he tendency and policy of the courts is to not extend the number or instances of absolute privilege unless the policy upon which privilege is based is found to exist in the new situations. . . ” and “. . . the better public policy ‘regards the ends to be gained by permitting such statements as outweighing the harm which may be done to the reputation of others.’ . ” Laun v. Union Elec. Co. of Missouri, 350 Mo. 572, 166 S.W.2d 1065, 1068-9 (1942) quoting 3 Restatement, Torts, p. 224; 50 Am.Jur.2d, Libel and Slander, § 194. We perceive no policy rationale to extend the total immunity of absolute privilege to a memorandum comprised of obvious hearsay and rumor and published out of the ordinary course of the disciplinary proceedings. At oral argument, defendant’s attorney questioned the logic of refusing to extend absolute privilege to the memorandum in light of the fact that defendant would have been protected by absolute privilege if he would have related this information during the actual disciplining hearing. The difference in treatment of the statements in the two situations may, however, be justified because of the existence of the independent supervision and control of the hearing officer and the opportunity at a hearing for plaintiff to explore the truth of the statements, see 50 Am.Jur.2d, Libel and Slander, § 194, fn. 10.

Although the statements in the memorandum are not protected by an absolute privilege, the statements are qualifiedly privileged by virtue of the rule enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964) that:

“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ —that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

The meaning of this “actual malice” requirement was amplified by the Supreme Court’s observation in St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968) that:

. . reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.”

In a libel or slander action brought by a public official pleading and proving this element of “actual malice” is a prerequisite to recovery. The term “public official” was specifically left undefined in the New York Times Co. v. Sullivan, supra, case. Id., 376 U.S. at 283, fn. 23, 84 S.Ct. 710. Shortly thereafter, however, some meaning was given to the term in Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L Ed.2d 597 (1966) when the court observed:

“. . . the ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have substantial responsibility for or control over the conduct of governmental affairs.” (Id. at 85, 86 S.Ct. at 676).

Noting that the “actual malice” standard was designed to remove inhibitions to public discussion, the Rosenblatt court stated:

“Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, both elements we identified in New York Times are present and the New York Times malice standards apply.” (Id. at 86, 86 S.Ct. at 676)

Courts following Rosenblatt, supra, have found a broad spectrum of government employees to be included within the “public official” designation, see Annot., 19 A.L. R.3d 1361. Lower level police officers have frequently been characterized as “public officials,” see e. g. Rowden v. Amick, 446 S.W.2d 849, 857-58 (Mo.App.1969) (deputy marshal); Jackson v. Filliben, 281 A.2d 604 (Del.Sup.1971) (police sergeant); Moriarty v. Lippe, 162 Conn. 371, 294 A.2d 326, 330-31 (1972) (patrolman), because the courts have recognized that:

“. . . law enforcement is a primary function of local government and that the public has a far greater interest in the qualifications and conduct of law enforcement officers, even at, and perhaps especially at, an ‘on the street’ level than in the qualifications ind conduct of other comparably low-ranking government employees performing more proprietary functions. The abuse of a patrolman’s
office can have great potentiality for social harm . .

Coursey v. Greater Niles Township Publishing Corp., 40 I11.2d 257, 239 N.E.2d 837, 841 (1968) (patrolman). We conclude that the plaintiff in the present ease was a “public official” within the meaning of the New York Times “actual malice” rule.

Because the statements in the memorandum are protected by a qualified privilege, an issue arises as to the existence of such malice as will remove the protection. Defendant contends that he was entitled to a directed verdict on Count I because there was no evidence of malice. We disagree.

The trial was conducted, evidence introduced and the appellate argument was premised on the theory that the “qualified privilege” involved was simply the general “qualified privilege” which arises when:

“. . . circumstances exist or are reasonably believed by the communicator or publisher to exist in which he has an interest and which casts on him a duty to communicate the alleged defamatory matter to another person or persons having a corresponding interest or duty.

Turnbull v. Herald Co., 459 S.W.2d 516, 520 (Mo.App.1970). This general qualified privilege may be lost if there is evidence of “express malice” or “malice in fact,” see generally, Walker v. Kansas City Star Co., 406 S.W.2d 44, 55 (Mo.1966). “Express malice” may be shown by evidence that the defendant published the defamatory matter for a motive inconsistent with the principles giving rise to the privilege. Boehm v. Western Leather Clothing Co., 161 S.W.2d 710, 717 (Mo.App.1942). Falsity of the statements and defendant’s knowledge of the falsity might also be evidence of “express malice”, Potter v. Milbank Mfg. Co., 489 S.W.2d 197, 204 (Mo.1972).

Our review of the transcript reveals sufficient evidence to preclude direction of a verdict under the general principles of qualified privilege and abuse of that privilege. There was evidence of continuing controversies between plaintiff and defendant beginning in July, 1973. In addition, defendant admitted that most of the “items” included in the memorandum had actually occurred prior to July of 1973 when defendant had offered plaintiff a promotion. Finally, every witness examined denied, in whole or in part, making the statements to Zinn which were attributed to them in the memorandum. From this evidence, the jury might reasonably conclude that defendant misrepresented the facts in the memorandum as part of an effort to drive plaintiff off the police force' and, therefore, lose the qualified privilege through abuse.

As we have noted, however, the “public official” status of the plaintiff in the present case requires plaintiff to demonstrate “actual malice,” basically awareness of the falsity rather than “express malice," Arguably, the witnesses’ repeated repudiations of the statements attributed to them in defendant’s memorandum constitutes circumstantial evidence that Zinn was aware of the falsity of the statements. Zinn’s denial of falsification creates an issue of credibility. We, therefore, hesitate to order the drastic step of a directed verdict even in light of plaintiff’s heavier burden of proof to show “actual malice.” On the retrial of Count I, both sides might introduce additional evidence oriented toward the “actual malice” test of the New York Times case.

A new trial as to Count I must be conducted because the plaintiff’s verdict director failed to hypothesize the element of “actual malice”. In pertinent parts, the verdict director provided:

“Your verdict must be for plaintiff upon Count I of the Petition if you believe: “First, defendant prepared a memorandum containing the statement [the October 29th memorandum was then reproduced omitting the four ‘items’ which had not appeared in plaintiff’s‘petition] .
“Second, such statement tended to expose plaintiff to hatred and contempt and damaged plaintiff’s reputation, and “Third, such statement was read by Fred Siems, and
“Fourth, that such statement was written knowing it to be false or without knowing whether it was true or false in reckless disregard for the plaintiff’s rights. “MAI 23.06 (Modified).”

The drafter of instructions is advised by the MAI editors thát “if the defense of qualified privilege is raised, and the plaintiff claims that the privilege was abused, then paragraph Fourth must also be added,” Missouri Approved Jury Instructions, p. 220. The committee comments to MAI 23.06, however, cryptically recognize that paragraph Fourth does not submit the “actual malice” standard developed in New York Times and, therefore, is not applicable to libel actions brought by a public official, Id. at 221. A proper instruction in the present case would replace the general qualified privilege and express malice formulation of paragraph Fourth of MAI 23.06 with the “actual malice” language of the New York Times and St. Amant, supra, cases. For example, the instruction might read:

“Fourth, that when defendant wrote the statements he knew they were false or entertained serious doubts as to their truth.”

Such an instruction differs significantly from the verdict director submitted in the present case. The submitted verdict director merely required proof that the “. statement was written knowing it to be false or without knowing whether it was true or false . . ” (Emphasis added.) This second part of the disjunctive submission might be read as inviting a verdict for plaintiff based on defendant’s mere negligence, cf. Rowden v. Amick, supra, at 853. The strong protection afforded by the “actual malice” standard certainly is not obviated by a showing of mere negligence. St. Amant v. Thompson, supra, 390-U.S. at 731, 88 -S.-Ct:' 1323.

Since a retrial of Count I is necessary, we need not discuss defendant’s contention that the jury verdict was excessive. The two remaining appellate contentions allege that the trial judge should have directed a verdict on the slander counts of plaintiff’s petition. Neither contention was mentioned in defendant’s post-trial motions, and, therefore, are not before us for appellate review, Rule 84.13(a), V.A.M.R.

We, therefore, affirm the judgments as to Counts III, IV and V and reverse and remand for a new trial on Count I in accordance with this decision.

STEWART and REINHARD, JJ., concur.


author: SMITH, Judge.

text:
    UNITED VAN LINES, INC., a Missouri Corporation, Plaintiff-Appellant, v. Julian W. CLAUDE, Defendant-Respondent.
    No. 37754.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 19, 1977.
    N. P. Trimborn, Fenton, for plaintiff-appellant.
    Donald R. Wilson, Clayton, for defendant-respondent.
   SMITH, Judge.

Plaintiff appeals from a judgment in favor of defendant in a court-tried case. Plaintiff, a common carrier, sought to recover $404.35 for transportation charges. Upon plaintiff’s motion for summary judgment and defendant’s motion for judgment on the pleadings, the court entered judgment for defendant.

Plaintiff moved household goods of defendant from Barrington, Illinois to St. Louis. Prior to the movement of these goods, defendant paid plaintiff $1,428.81 and defendant received a bill of lading marked “Received payment”. Due to an error by plaintiff this amount was $404.35 less than the prescribed rate under plaintiff’s Interstate Commerce Commission tariffs. Upon discovering the mistake several months later, plaintiff demanded payment from defendant of the balance due under the tariff and defendant refused payment. Defendant contends plaintiff is estopped by the bill of lading from collecting the full tariff rate.

The Interstate Commerce Act, 49 U.S.C. 317(b) provides:

“No common carrier by motor vehicle shall charge or demand or collect or receive a greater or less or different compensation for transportation or for any service in connection therewith between the points enumerated in such tariff than the rates, fares and charges specified in the tariffs in effect at the time .

It is unnecessary for us to trace the federal and state decisions dealing with the problem presented. We could not improve upon the scholarly and thorough opinion of Judge Wasserstrom in Interstate Motor Freight System v. Wright Brokerage Company, 539 S.W.2d 764 (Mo.App.1976). It is sufficient to say that a mistaken undercharge by a carrier does not estop the carrier from recovering the full amount of the tariff rate. Nor does estoppel apply where the bill of lading indicates prepayment, except in those situations in which a consignee is misled into paying the consignor the full freight charge in reliance upon the bill of lading. There estoppel applies in a suit against the consignee because the carrier’s error or deliberate misrepresentation would subject the consignee to paying the full amount of the charges twice.

That is not the situation here. Defendant is both consignor and consignee. Neither he nor anyone else has ever paid the full amount of the tariff for this move. The tariffs are public documents of which defendant is conclusively bound to have constructive knowledge and he may not rely upon the carrier’s error causing an undercharge. Interstate Motor Freight System, supra, [2]. While the rule may at times appear harsh, it is in accord with the public policy conceived by the Congress in enacting the Interstate Commerce Act to prevent carriers from granting discriminatory rates.

Defendant’s further affirmative defenses of waiver and payment are also unavailing. Plaintiff did not intentionally relinquish a known right nor under the law could it. Defendant has not made full payment required under law.

Plaintiff’s motion for summary judgment, supported by uncontroverted affidavits, should have been granted. Judgment reversed, cause remanded for entry of judgment for plaintiff in the amount of $404.35 plus interest from April 8, 1974.

McMILLIAN, P. J., and STEWART, J., concur.


author: PER CURIAM.

text:
    Beverly JACKSON, Plaintiff-Appellant, v. BI-STATE TRANSIT SYSTEM, Defendant-Respondent.
    No. 37963.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 19, 1977.

      Law Offices of Forriss D. Elliott, Mark S. Fredman, St. Louis, for plaintiff-appellant.
    Gene J. Boesch, Boas, Schneider & Walsh, St. Louis, for defendant-respondent.
   PER CURIAM.

Plain tiff-appellant, Beverly Jackson, sought damages for injuries sustained while a passenger on a bus of the defendant-respondent, Bi-State Transit System, when an object penetrated a window of one of the defendant’s buses and struck her in the face. The trial court sustained a motion to dismiss her third petition and she appeals. For reasons hereinafter stated, we affirm.

In her second amended petition Ms. Jackson alleged that: (1) Bi-State operated a bus at or near St. Louis and University Avenues in the City of St. Louis; (2) she was a passenger on the bus; (3) Bi-State equipped its vehicles, including the one on which she was riding, with “a type of window glass which exposed the plaintiff and other passengers to the risk of bodily injury from missiles and objects being thrown at said buses”; (4) Bi-State had “prior knowledge of repeated incidences [sic] of missiles and objects being thrown at and through its vehicle windows”; (5) on April 9, 1975, while plaintiff was aboard the bus, “an object was caused to enter said bus by shattering a window in said bus . striking plaintiff about the face”; (6) although Bi-State had prior knowledge of “repeated” incidents of “objects” and “missiles” being thrown at and through windows, it was careless and negligent in that it “failed to install in said windows a safety glass known to resist the impact of such objects”; and (7) as a result of the negligence, a window was shattered allowing the object to enter the bus and strike her causing severe and permanent injuries to her eye, face, skull and neck.

Plaintiff had on two earlier occasions filed petitions claiming damages for her injuries. On each occasion Bi-State filed a motion to dismiss which was sustained, but the court on each occasion permitted plaintiff to file an amended petition. The second amended petition was dismissed with prejudice.

The precise issue on this appeal, as we perceive it, is a narrow one: when it is alleged that a common carrier has prior knowledge of repeated incidents of objects being “thrown” through the windows of its vehicles, is the carrier under a duty to install a type of safety glass so that an object does not penetrate the window and injure one of the passengers when the object and the force used to propel it are unknown?

In the resolution of this issue we are governed by general principles relating to dismissal of a petition for failure to state a claim. These principles have often been stated. See Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625, 630 (Mo.App.1975) and Dix v. Motor Market, Inc., 540 S.W.2d 927, 929 (Mo.App. 1976). We are also governed by the general rule that a petition seeking damages for actionable negligence must allege ultimate facts which show (1) the existence of a duty on the part of the defendant to protect the plaintiff from injury, (2) failure of the defendant to perform that duty, and (3) injury to the plaintiff resulting from such failure. Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976); Stevens v. Wetterau Foods, Inc., 501 S.W.2d 494, 498 (Mo.App.1973).

The general principles relating to the law of common carriers, such as Bi-State, have often been repeated and are as old as passenger transportation itself. Generally, the law is strict and stringent as to the duties it imposes upon carriers. In the long history of the law of common carriers, these principles emerge:

1. As to equipment and facilities, a carrier is required to exercise the highest degree of care or the utmost vigilance in providing suitable machinery and appliances in the operation of its vehicles, in the employment of competent employees and “. . . generally as to all acts pertaining in any way to the conduct of its affairs in furtherance of its undertaking as a carrier.” Woas v. St. Louis Transit Co., 198 Mo. 664, 96 S.W. 1017, 1019 (1906); Malone v. St. Louis-San Francisco Ry. Co., 202 Mo. App. 489, 213 S.W. 864, 867 (1919). In respect to these matters the rule in this state has always held such carriers to a strict accountability.

2. As to acts or conduct of fellow passengers, the carrier is bound to exercise the “utmost practicable care” or “utmost vigilance” to transport safely its passengers and to protect them while in transit from “insults and violance” at the hands of all on the vehicles including fellow passengers and any violation of this duty which results in injury to a passenger renders the carrier liable in damage. Lige v. Chicago B. & Q. R. Co., 275 Mo. 249, 204 S.W. 508, 511 (1918).

3. As to acts or conduct of third persons outside the control of the carrier who propel or throw missiles or objects at the common carrier, it has been said in Missouri that “[a] different rule seems to prevail . In [this] case the carrier is only required to exercise ordinary care and vigilance . .” Williams v. East St. Louis & S. Ry. Co., supra, 232 S.W. at 760-761 citing Woas v. St. Louis Transit Co., supra. As to these acts or conduct of miscreants who throw missiles or objects at or through windows of vehicles thus endangering the passengers, the principle is that the carrier is under no duty to protect the passenger and is not responsible for a resulting injury unless it has knowledge of the existence of danger or has knowledge of facts and circumstances from which danger may be reasonably anticipated. Woas v. St. Louis Transit Co., supra, 96 S.W. at 1023; Shepard v. Kansas City Public Service Co., 236 Mo.App. 1118, 162 S.W.2d 318, 321 (1942); Annot., 46 A.L.R.2d 1098, 1099 (1956).

With reference to acts or conduct of third persons who propel missiles or objects at the windows of carriers, we believe that the more modern principle and one consistent with modern society is that a common carrier of passengers must exercise the highest degree of care to provide for the safety of fare-paying passengers. The carrier is liable for injury to a passenger caused by a third person over whom it has no control if such injury could have been reasonably anticipated or naturally expected to occur. Homan v. County of Dade, 248 So.2d 235, 237 (Fla.App.1971) citing Florida East Coast Railway Company v. Booth, 148 So.2d 536 (Fla.App.1963).

The carrier’s legal duty simply means that the carrier must exercise the highest degree of care for the passengers’ safety which would under all the circumstances be deemed prudent to obviate a known or anticipated danger.

In short, we hold that a common carrier such as Bi-State is under the duty to exercise the highest degree of care or utmost vigilance to protect its passengers from all dangers which are known or which by the exercise of the highest degree of care ought to be known whether occasioned by its own employees, fellow passengers or by third parties over whom it may have no control when injury could have been reasonably anticipated by the carrier or its employees.

But all these stringent and strict principles of care and imposition of liability are tempered by the fact that a common carrier is not an insurer of the safety of its passengers. While the carrier is bound to exercise the utmost care to safely transport its passengers and to protect them while in transit, that duty does not amount to an absolute guaranty that a passenger will be transported to his destination with absolute safety. The carrier is not an insurer. Lige v. Chicago, B. & Q. R. Co., supra, 204 S.W. at 511; Malone v. St. Louis-San Francisco Ry. Co., supra, 213 S.W. at 867; Page v. Wabash R. Co., 206 S.W.2d 691, 694 (Mo. App.1947). There are certain risks and dangers for which the carrier is not, and should not be, exposed to liability. There are . . casualties against which human sagacity cannot provide, nor the utmost prudence prevent.” Irwin v. Louisville & N. R. Co., supra, 50 So. at 63. The carrier is not charged with the duty of providing or maintaining its vehicles which will absolutely prevent injury to its passengers nor is it responsible for acts or conduct of third persons which are not reasonably anticipated. To require a carrier to provide or maintain vehicles which will absolutely prevent injury would be impossible. Vehicles of a common 'carrier would have to be armored tanks. That is too high a duty. We have not as yet reached the point when a carrier is responsible for each and every injury that occurs on one of its vehicles regardless of the cause. We do not as yet have a “no-fault” common carrier law.

In view of these guiding principles, we hold that the second amended petition filed by the plaintiff does not state a claim for relief and the trial court did not err in sustaining the defendant’s motion to dismiss the second amended petition. The plaintiff’s petition seeks to impose liability upon the defendant by alleging that (1) Bi-State had prior knowledge of “repeated” incidents of missiles and objects being thrown at and through the windows of its. vehicles, (2) the vehicle was equipped with a type of glass which exposed the passengers to a risk of bodily injury, (3) Bi-State failed to install a safety glass which could resist the impact of objects, and (4) an object was “caused” to enter the bus and strike the plaintiff.

While plaintiff concludes the argument in her brief by stating that “[a]t the very least there is a duty of reasonable care to protect passengers against the acts of third persons outside the carrier’s control if these acts are reasonably foreseeable,” there are no allegations of fact that the acts of third persons caused the object to be hurled at the window. Plaintiff paints with too broad a brush. Although it is alleged that defendant had knowledge of previous throwing incidents, it does not logically follow that therefore Bi-State can be held responsible for any object “caused to enter said bus” resulting in plaintiff’s injury. The origin of the object caused to enter the bus is unspecified. The force used to propel the object is also unspecified. The object may have been “caused” to enter the window in a number of ways — a rock from a tire of a passing truck, a rock hurled by the force of a power lawn mower, an extended limb of a tree, a baseball used in innocent play. Any of these could have been the “object” which was “caused” to enter the window. Plaintiff’s second amended petition seeks to impose liability on the ground that since the defendant had knowledge of repeated incidents of objects being thrown it is responsible for any object which is caused to enter the bus regardless of the force or means used to propel it, and that by failing to equip its buses with the type of glass to resist any object it is thereby negligent. Such petition in effect makes the defendant an insurer of the safety of the plaintiff.

The petition alleging failure to install safety glass sufficient to resist the impact of any object caused to penetrate a window and injure a passenger in the context of this petition does not, therefore, in our opinion, state a claim upon which relief can be granted.

In the second amended petition there was no allegation (1) that the defendant had knowledge that the repeated incidents of objects being thrown at defendant’s buses occurred in the vicinity where the incident allegedly occurred, (2) that the type of glass used in the bus was of substandard nature or different from that customarily used in the industry or violated any state or federal law or regulation, (3) that described the object which allegedly penetrated the window, (4) that the object was thrown through the window by some person, (5) as to how or in what manner the object was “caused to enter said bus,” or (6) indicating the source of the force which hurled the object through the window.

Failure to install a type of window glass in the window of a vehicle sufficient to resist penetration of an object is not negligent; negligence pccurs, when the carrier has knowledge of or can reasonably anticipate the force, means or conduct which causes an object to be propelled, hurled or thrown so as to penetrate the window. No such knowledge or anticipation of danger is shown by this petition.

We are reluctant to dismiss a petition for failure to state a claim and foreclose the plaintiff an opportunity to proceed to a hearing. But plaintiff had two opportunities to amend her petition to attempt to state a claim. With these opportunities plaintiff undoubtedly stated all the facts within her power to state. Hence, we hold that the trial court did not err in sustaining the defendant’s motion to dismiss.

The judgment is affirmed.

All the Judges concur.

      '.' In her brief appellant argues that defendánt was negligent in not equipping its buses with “unbreakable glass” although her petition stated that defendant was negligent in failing to install a safety glass known to resist the impact of objects. Her whole theory, as we deduce it, is that defendant was negligent in using “the type windows defendant used, not negligence in moving the bus forward after a stranger poised to throw an object has been discovered.” She stated that “[t]he exact question of whether a common carrier is negligent in not equipping its buses with a type of glass or plastic that will resist the impact of rocks or other objects has never been presented in an appellate setting in Missouri.”

      . Williams v. East St. Louis & S. Ry. Co., 207 Mo.App. 233, 232 S.W. 759, 760 (1921).

      . The language in Woas was, in our opinion, dicta dictated by the facts. The court stated that the evidence showed that the attack was directed toward the motorman for past failures to pick up passengers and not to the passengers.

      . See also the companion case of General Motors Corporation w County of Dade, 272 So.2d 192 (Fla.App.1973); Harpeli v. Public Service Coordinated Transport, 20 N.J. 309, 120 A.2d 43, 47 (1956) — a jagged piece of concrete and pebble mixture of baseball size thrown by 15-year-old boy; company had knowledge of many similar occurrences; injury not beyond the realm of reasonable prevision; Melicharek v. Hill Bus Co., 70 N.J.Super. 150, 175 A.2d 238 (1961) — rev’d on ground that record failed to create a factual issue as to whether defendant knew of the existence of danger, 37 N.J. 549, 182 A.2d 557, 558 (1962); Irwin v. Louisville & N. R. Co., 161 Ala. 489, 50 So. 62 (1909); Of. Tomme v. Pullman Co., 207 Ala. 511, 93 So. 462 (1922) where the court overruled certain language in Irwin. Tomme designated between the carrier’s high degree of care to protect passengers and ordinary care in anticipating violence or assault.
      In Woas and Shepard, supra, the court found that the injury was not to be anticipated. Woas v. St. Louis Transit Co., supra, appears in conflict with Homan v. County of Dade and Harpeli v. Public Service Coordinated Transport, supra. When such acts cannot be anticipated the carrier is not liable — Drew v. Troy Fifth Avenue Bus Co., 9 A.D.2d 587, 189 N.Y. S.2d 637 (1959) — peach thrown in July when company had knowledge of snowballs thrown in winter.

      . Normally, this determination is a jury function. Harpell v. Public Service Coordinated Transport, supra, 120 A.2d at 47.

      . Plaintiff frankly states in her brief that the “. . . force which hurled the object through the bus window can only be speculated at . . .


author: BILLINGS, Chief Judge.

text:
    CITIZENS BANK OF DEXTER, a corporation, Plaintiff-Respondent, v. HALL TRAILER SALES, INC., a corporation, Defendant-Appellant.
    No. 10363.
    Missouri Court of Appeals, Springfield District.
    April 20, 1977.

      Clarence A. Powell, John Wm. Ringer, Powell, Ringer & Ringer, Dexter, for plaintiff-respondent.
    C. H. Parsons, Jr., Stephen R. Mitchell, Parsons & Mitchell, Dexter, for defendant-appellant.
    Before BILLINGS, C. J, and HOGAN and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

A Stoddard County jury returned a verdict in favor of plaintiff Citizens Bank of Dexter in its suit on a promissory note. Judgment was entered and defendant Hall Trailer Sales, Inc., appealed. We affirm.

The verdict was received and judgment entered on January 30, 1976. The special judge hearing the case then granted defendant “thirty days within which to file motion for new trial.” Defendant’s motion for new trial was filed March 1, 1976.

Supreme Court Rule 78.04 provides that a motion for new trial “shall be filed not later than 15 days after the entry of the judgment on a jury verdict, which judgment shall be entered as of the date of the verdict.” And under Rule 44.01(b) this time period cannot be extended by the trial court.

By reason of the provisions of Rules 78.04 and 44.01(b) the lower court was without jurisdiction to enlarge the time within which defendant could file its motion for a new trial. The order purporting to grant the defendant additional time was void and a nullity. Defendant’s motion for new trial, filed more than 15 days after the judgment was entered, is also a nullity and preserves nothing for appellate review. Rule 78.07 requires that in jury tried cases allegations of error sought to be preserved for review must be included in a motion for new trial and this contemplates a timely motion for new trial under Rule 78.04.

Defendant acknowledges the trial court erred in granting 30 days in which to file its motion for new trial and concedes an untimely motion for new trial fails to preserve trial error for review. However, defendant seeks to invoke the plain error principle set forth in Rule 84.13(c). This rule provides we may consider, in our discretion, plain errors “affecting substantial rights” even though not properly preserved, when we find “manifest injustice or miscarriage of justice has resulted.”

We have carefully reviewed the trial transcript and the briefs filed herein and conclude plain error amounting to manifest injustice or miscarriage of justice is not present. Defendant’s principal point urging plain error is an attack on the verdict directing instruction. Considering the evidence and inferences favorable to the party offering the instruction [Commerford v. Kreitler, 462 S.W.2d 726, 728 (Mo.1971)], each of the disjunctive submissions of theories of recovery was supported by substantial evidence. Saupe v. Kertz, 523 S.W.2d 826 (Mo. banc 1975); Johnson v. Bush, 418 S.W.2d 601 (Mo.App.1967).

Plaintiff’s motion to dismiss this appeal for defendant’s alleged failure to comply with Rule 84.04(c) is denied. The judgment is affirmed.

All concur.


author: HENRY, Justice. BROCK, Justice,

text:
    STATE of Tennessee, Petitioner, v. Willie SANDERSON, Respondent.
    Supreme Court of Tennessee.
    Feb. 7, 1977.
    R. A. Ashley, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, for petitioner.
    Charles S. Kelly, Dyersburg, for respondent.
   OPINION

HENRY, Justice.

We granted certiorari in this criminal action to examine and construe the meaning and intent of the “valid prescription” exception to Sec. 52-1432(b) T.C.A., relating to the possession of a controlled substance and constituting a part of “The Tennessee Drug Control Act of 1971.” Sec. 52-1408, et seq., T.C.A.

The Court of Criminal Appeals reversed the trial court, holding that the substance possessed by the defendant was “obtained by means of a valid prescription.”

I.

The controlled substance consisted of twenty-two tablets of tenuate dosepan — (diethylpropion hydrochloride). Tenuate Do-sepan is an anorectic commonly used in the control of obesity, and diethylpropion is a Schedule IV substance under Sec. 52-1419, T.C.A.

On December 9, 1974, the defendant contacted Dr. Landrum Tucker, a practicing physician in Ripley, and asked him to issue a prescription for diet pills for her sister, Mae Turner, who lived in Gary, Indiana, but who was visiting with her in Ripley. The sister was not present, had never been a patient of Dr. Tucker, and, he had never seen her. The Doctor complied by writing a prescription to Mae Turner. Two days later defendant and a companion presented the prescription at a local drugstore and obtained thirty tablets of this medication.

Later on the day of issuance, defendant and her companion went to a Ripley beer joint where she gave the bottle containing twenty-two tablets to the operator. In a subsequent police raid these pills were confiscated, along with other contraband drugs. In a trash can inside the premises police found the label affixed by the pharmacist. Ample material evidence supports the purchase and the possession by the defendant.

The testimony of Dr. Tucker borders on being incredible. He wrote the prescription to Mae Turner at the request of the defendant, one of his regular patients, and gave it to her. He stated that “quite a few people will come in and ask for reducing tablets or they call on the telephone. ... I usually just call the drug store and tell them to give them a reducing tablet, tenuate does-pan (sic)”. Further he said “if they want the tablets, I give it to them.” Further he testified, “I write reducing tablets to 30 or 40 people a month and I don’t see them.”

The following from his testimony is significant:

Q. This is not what you call a narcotic?
A. It’s certainly not a narcotic, as far as I know. I don’t know anything about these drugs. That’s just what the salesmen come in and tell me. They told me this was not a class IV drug.
Q. Doctor, why would somebody want this drug, say that was not overweight?
A. I don’t know of any reason they’d want that drug. I don’t know anything else it does. Of course, they bring all these drugs on the market and I don’t know anything about it. All I know is what the drug salesmen tell me. They say the drug salesmen run the medical practice. They do in a way. (Emphasis supplied).

It is a prescription issued by this doctor and under these circumstances that we are asked to validate. We don’t know where he has been in recent years with common street talk about “uppers”. Any good “detail man” for any reputable drug company could enlighten him as to the use made of “diet pills” for purposes other than weight control.

The 1975 issue of Physicians’ Desk Reference, commonly called the PDR, is in universal use by the medical profession and pharmacists throughout.-the nation/ It sets out a complete description of Tenuate Dose-pan, contraindications, warnings, precautions and dosages. From an examination of this authoritative and standard treatise we are unable to comprehend the action of any physician in prescribing a drug specifically made unlawful, except by prescription, on a “sight unseen” basis. We do not accept such conduct as a sound medical practice and we consider it contrary to the public interest.

We note that Sec. 63-618, T.C.A., relating to denial, suspension, or revocation of a physician’s right to practice, includes as a ground, in addition to unprofessional conduct and gross negligence the following:

Dispensing, prescribing, or other distributing any controlled substance or any other drug not in the course of professional practice or not in good faith to relieve pain and suffering or not to cure an ailment, physical infirmity or disease. (Emphasis supplied).

Under his own version of the facts surrounding the issuance of this prescription, this doctor was guilty of gross negligence and was not motivated by good faith. It is the clear intent of the Drug Control Act that a prescription for a controlled substance is lawful only if issued for a legitimate medical purpose. This prescription was not so issued.

II.

To this point it might appear that we are visiting the sins of the doctor upon this defendant, and so we would be, had she acted in good faith. She did not.

She represented to the doctor that her sister from Gary had a weight problem. In point of fact her sister was five (5) feet and eight (8) inches tall, and weighed 115 pounds. She was what we would commonly call “skinny” and certainly had no legitimate use for diet pills. The average woman of her height and age weighs 155 pounds, according to a study made by the Society of Actuaries. See 1976 World Almanac, Newspaper Enterprise Association, p. 964. See also L. Dublin, Factbook on Man: From Birth to Death, page 358. The desirable weight according to Metropolitan Life Insurance Company for a woman of her age ranges from 129 for a small frame woman through 158 for a large frame woman. See R. Clark, Book of Health — A Medical Encyclopedia for Everyone, (Third Edition 1973), page 900. Viewed from any standard this “fat lady” weighs a minimum of 40 pounds less than the average woman of her age and height, and 14 pounds less than her desirable weight, assuming a small frame.

Defendant did not call her sister as a witness. Quite aside from the well known inference arising from the failure of a party to produce a witness who has peculiar knowledge of the facts and would naturally favor the party’s contention, is the fact that this sister was not even pointed out in the courtroom so that the jury might have observed first-hand whether she was in need of dietary aids for control of obesity. The record does not show that she was present in court.

The pills did not reach the sister but were left on deposit at a beer joint with the label removed. This was a clear indication that they were procured by fraud and were never designed for any legitimate purpose.

We think it clear, that it was the intent of the legislature in making an exception in favor of controlled substances obtained by “a valid prescription” to provide a complete defense in those cases where the prescription was issued in good faith. Conversely we do not believe the legislature had any intention of placing a protective cloak around anyone who procures a prescription with no intent to deliver it to the ultimate consumer or who procures it by fraud, misrepresentation or deceit.

Section 52-1436(a), T.C.A., makes it un- • lawful for any person knowingly or intentionally:

(3) to acquire or obtain or to attempt to acquire or attempt to obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge.

The defendant, while not so charged, stands in violation of this statute and it is applicable not only as shedding light on the legislative intent but also, when read in connection with the earlier sections (52-1432) under which she was indicted, it buttresses our conclusion that the possession was unlawful.

We hold that the prescription issued to Mae Turner was not a “valid prescription” under the exception incorporated in Section 52-1432(b), T.C.A.

III.

This is a question of first impression in this jurisdiction in that there have been no reported cases decided under Section 52-1432(b). However, not cited in either brief or by the Court of Criminal Appeals, is the case of Duke v. State, 211 Tenn. 629, 366 S.W.2d 913 (1963) which we cannot ignore.

Duke was indicted and convicted under Section 52-1303, T.C.A. which was repealed by The Tennessee Drug Control Act of 1971 (Section 52-1408, T.C.A., et seq). At the time of Duke’s conviction, then Section 52-1308 T.C.A. permitted a physician acting in good faith to prescribe narcotic drugs and Section 52-1312, T.C.A. made it lawful to possess such a drug “in the container in which it was delivered to him by the person selling or dispensing the same.”

The drugs were possessed in Duke pursuant to prescriptions issued by reputable physicians, but unquestionably obtained by deceit and misrepresentation. Former Chief Justice Burnett, writing for the Court in Duke, said:

[TJhere is no showing in the first place what these three vials or little bottles that this man possessed contained. In the second place, it is shown by the preponderance of the evidence that whatever it was had been prescribed by a physician .. The clear inference is that these three vials which this man had were the same containers in which they were sold to him . . .. Thus it is that . . . the violation of the Section under which he was convicted of possessing is satisfied by the fact that the drugs he possessed were lawfully in his possession through these prescriptions and in the containers in which they were given him when he purchased the drugs. 211 Tenn. at 632, 366 S.W.2d at 914.

Wé do not consider this holding, under the former law, to be currently authoritative.

The federal law, as set forth in the opening sentence of 21 U.S.C.A. Sec. 844, is virtually identical with Sec. 54-1432(b), T.C.A. Each excepts from criminal sanctions the possession of otherwise unlawful drugs issued “pursuant to a valid prescription.”

This federal statute came under the scrutiny of the District of Columbia Circuit in United States v. Forbes, 169 U.S.App.D.C. 217, 515 F.2d 676 (1975), wherein the defendant contended that his possession of controlled substances (diet pills) was legal because obtained by two other persons pursuant to valid prescriptions from a physician. The defendant’s girlfriend testified that the tablets in the vial containing her name had been obtained by her from a medical prescription for “a loss of appetite” and that she left them with the defendant to return to the doctor because they made her “dizzy.” In rejecting the defendant’s contention, the Court said:

To coristrué' the1 statute as "appellant suggests would legalize possession of a quantity of controlled substance by any person who subsequently acquires it as long as it was originally validly obtained by prescription. Such a construction would even make the labels a defense in the case of possession by a thief or possession obtained by fraud. (Second emphasis supplied).
* * 5⅜ * * jfc
Obviously, this construction would create a loophole in the statute of such magnitude as to render its effective enforcement practically impossible. It would be absurd to hold that Congress intended that section 844(a) should be construed so as to produce such a result. (Emphasis supplied). 515 F.2d at 679-80.

And so with our statute, it would be an absurdity to hold that the legislature intended that a criminal defendant, by the procurement of a prescription by fraud and misrepresentation, could clothe himself with the authority to possess drugs which would otherwise be unlawful.

In summary we hold that the “valid prescription” exception is only applicable when the prescription is issued by a licensed practitioner, acting in good faith and in accord with accepted medical standards and when the person obtaining the prescription is also acting in good faith and is free from fraud, deceit or misrepresentation. A “valid prescription” presupposes ethical and prudent conduct on the part of the practitioner and honest motivation on the part of the patient. These essentials are lacking in this suit.

Reversed.

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

BROCK, Justice,

concurring.

I concur in the decision of the Court but not in its rationale. I do not agree that the prescription used by the defendant was not a valid one. On the contrary, it was issued by a physician and was regular and valid in all respects and its validity enabled her to procure the drugs'1 in "qúesiíonT^ffdm'''t1ie pharmacist. Although the use of “misrepresentation, fraud, forgery, deception or subterfuge” to obtain possession of a controlled substance is itself made an offense by T.C.A. § 52-1436(a)(3), nothing in the Act provides that an otherwise valid prescription is rendered “invalid” because it was procured by means which are denounced by T.C.A. § 52-1436(a)(3). See Duke v. State, 211 Tenn. 629, 366 S.W.2d 913 (1963).

In this case, the defendant is not charged with a violation of T.C.A. § 52-1436(a)(3); she is charged with possession of a controlled substance which is made unlawful by T.C.A. § 52-1432(b) “unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice . . ..” To make out a defense under the quoted portion of T.C.A. § 52-1432(b), not only must a valid prescription have been used to obtain the controlled substance from the pharmacist, but the defendant’s possession of the controlled substance must have been “pursuant to” that prescription. I would hold that although the prescription in this case was valid, the defendant’s possession of the controlled substance was not “pursuant to” that prescription.

Construed in light of the evident legislative intent to exempt only possession for bona fide medical purposes, I would hold that the words “pursuant to a valid prescription” authorize possession only by the patient named in the prescription as the intended ultimate user or by the duly authorized agent of such patient who, in possessing the substance is carrying out the purpose of the prescription, e. g., a relative or friend of a patient who takes a valid prescription to a pharmacy, obtains the medication and takes it home to the patient. U.S. v. Forbes, 169 U.S.App.D.C. 217, 515 F.2d 676 (1975). In the case at bar, the defendant was not the patient named in the prescription as the intended ultimate user nor did she possess the pills as an agent of the intended ultimate user named in the prescription and as a bona fide means of carrying out the purpose of the prescription. Therefore, the defendant’s possession was not “pursuant to” the prescription.

Accordingly, I concur in the reversal of the judgment of the Court of Criminal Appeals.

      . Sec. 52-1435(a)(l) reads as follows:
      (a) It is unlawful for any person:
      (1) who is subject to §§ 52-1424 — 52-1431 to distribute or dispense a controlled substance in violation of § 52-1431 or to distribute or dispense any controlled substance for any purpose other than those authorized by and consistent with such persons professional or occupational licensure or registration law, or to distribute or dispense any controlled substance in a manner prohibited by such persons professional or occupational li-censure or registration law; . . .
      See also Sec. 52-1432, T.C.A.

      . See D. Paine, Tennessee Law of Evidence (1974), pages 45^6, and Tennessee Cases cited therein.

      . The comma between the words “to” and “a” is obviously misplaced and should be placed between the words “of” and “a,” the meaning being that lawful possession of a controlled substance must be obtained either directly from a physician or from a pharmacist pursuant to a valid prescription or order of a physician.


author: HENRY, Justice.

text:
    Mattie L. McALISTER, Appellant, v. METHODIST HOSPITAL OF MEMPHIS, Appellee.
    Supreme Court of Tennessee.
    May 2, 1977.

      Max D. Lucas, Jr., Kirkpatrick & Lucas, Memphis, for appellant.
    Gavin M. Gentry, Armstrong, Allen, Bra-den, Goodman, McBride & Prewitt, Memphis, for appellee.
   OPINION

HENRY, Justice.

The sole issue in this hospital malpractice action is whether a hospital employee, covered by the Workmen’s Compensation Act, who suffers an injury arising out of and in the course of her employment, may bring a common law action against the hospital for negligent treatment. The trial judge responded in the negative, holding that the Workmen’s Compensation Act provided the exclusive remedy. This action is before this Court on interlocutory appeal, the trial judge having certified the above issue as a controlling question of law, pursuant to Sec. 27-305, T.C.A.

I.

The injured worker filed her complaint in the Circuit Court at Memphis, against the defendant Hospital and two treating physicians. She alleged an “on-the-job injury to her back”, her consultation with a physician who caused her to be admitted to the hospital, the performance of a myelogram followed by a laminectomy, and a resulting infection and/or inflammatory condition at the operative site. Her cause of action is grounded upon lack of informed consent and assault and battery. She alleges permanent and total injuries and an attendant destruction of earning capacity.

Methodist Hospital moved to dismiss for failure to state a claim upon which relief can be granted in that a proceeding under the Workmen’s Compensation Act was plaintiff’s exclusive remedy. The trial judge sustained this motion, certified the controlling question of law summarized above, and we, in the exercise of our discretion, have elected to hear and determine the controversy because it presents a question of first impression in this jurisdiction.

II.

The Workmen’s Compensation law is written into every contract of employment between an employer and employee subject to its provisions. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844 (1920). The rights and remedies granted to employees “exclude all other rights and remedies”. Sec. 50-908, T.C.A. An injury within the meaning of the act must arise out of and in the course of employment. Sec. 50-902(d), T.C.A. The benefits under the act extend to medical and surgical treatment and hospitalization occasioned by the injury. Sec. 50-1004, T.C.A.

The injured worker may recover for a new injury or an aggravation of a com-pensable injury, resulting directly and without intervening cause from medical or surgical treatment of a compensable injury. International Harvester Co. v. Scott, 163 Tenn. 516, 43 S.W.2d 1065 (1932). The rationale of this rule is that the “original injury is regarded as the proximate cause of the damage flowing from the subsequent negligent treatment by the physician.” Revel v. McCaughan, 162 Tenn. 532, 538, 39 S.W.2d 269, 271 (1931). See also Mallette v. Mercury Outboard Supply Company, 204 Tenn. 438, 321 S.W.2d 816 (1959). This rule applies to the general field of tort law. Transports, Inc. v. Perry, 220 Tenn. 57, 441 S.W.2d 1 (1967).

Thus, it is clear under these authorities that Methodist Hospital of Memphis is liable under the Workmen’s Compensation Act, not only for the initial injury, but also for the injuries sustained as a result of the treatment for those injuries — and this quite aside from any question of negligence. There is no dispute as to this proposition— indeed this is the central assertion of the hospital’s defense.

The issue before the Court is whether the remedy under the Workmen’s Compensation Act is exclusive.

In McDonald v. Dunn Const. Co., 182 Tenn. 213,185 S.W.2d 517 (1945), this Court held emphatically that “if an employer has complied with the provisions of the Workmen’s Compensation Act, he is not subject to suit for negligence at common law, since the Act provides remedies which are exclusive.” 182 Tenn. at 222, 185 S.W.2d at 520. However, neither this case, nor Sec. 50-908, T.C.A. answers the question with finality.

Sec. 50-914, T.C.A. provides in pertinent part:

When the injury or death for which compensation is payable under the Workmen’s Compensation Law was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman, or his dependents, shall have the right to' take compensation under such law, and such injured workman, or those to whom his right of action survives at law, may pursue his or their remedy by proper action in a court of competent jurisdiction against such other person . (Emphasis supplied).

The effect of Sec. 50-908, T.C.A. and Sec. 50-914, T.C.A., when read together, is that workmen’s compensation is the exclusive remedy, except where the injury is caused by a third party. Garrison v. Graybeel, 202 Tenn. 567, 308 S.W.2d 375 (1957).

The question arises, as to the meaning of the phrase “some person other than the employer”. The Act contains no definition. This Court, in Majors v. Moneymaker, 196 Tenn. 698, 270 S.W.2d 328 (1954) held that a fellow worker engaged in the scope of his employment is not a “third person” and is not subject to an action at common law.

In Garrison v. Graybeel, supra, a malpractice action, both the injured claimant and the defendant were employees of the same company, the former a carpenter, the latter a physician. The Court permitted the suit against Dr. Graybeel and distinguished this case from Majors v. Moneymaker, supra, on the basis that in the latter case the employees were engaged in the same or similar duties at the time of the accident, whereas in Garrison the physician’s services “had no relation to the employer’s business.” This case stands’1 fot1 the: proposition that an injured workman may receive compensation under the act and sue the physician for negligent treatment of the compen-sable injury. It is, however, out of harmony with the general rule and must be confined to its own facts.

Appellant plausibly and persuasively urges upon the Court the proposition that Methodist Hospital of Memphis appears in this record in two capacities, i. e. as an employer and as a hospital. In the first instance there arises the relationship of master and servant; in the latter that of hospital and patient. She reasons that had she been treated at another hospital it would have been “some person other than the employer” and she could have maintained her common law action, even though her injury occurred during the course of treatment for a compensable injury. This is undeniably true. Further she says that the fact that she was an employee at the Methodist Hospital had nothing whatsoever to do with her being treated there — this was the decision of her physician. Finally, she insists that the Hospital was acting solely in its capacity as a hospital and not as her employer; and that as an employer the hospital is liable for workmen’s compensation benefits and as a hospital it is answerable in tort.

This is the “dual capacity” doctrine, as designated by Larson, and delineated as follows:

Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers upon him obligations independent of those imposed upon him as employer. 2A Larson’s Workmen’s Compensation Law, Sec. 72.80 (1976).

Larson suggests that the “most striking example” of this doctrine is the California case of Duprey v. Shane, 39 Cal.2d 781, 249 P.2d 8 (1952), the authority upon which appellant places primary reliance.

The facts in Duprey, supra, are strikingly similar to-the instant case. It was a malpractice action. Claimant was a nurse employed by the Shane Diagnostic Foundation. After receiving a compensable injury she was treated by her employer, and received new and further disability as a result of negligently administered treatment.

Sec. 3852 of the Labor Code of California is similar to Sec. 50-914, T.C.A. in that it gives the injured worker the right to sue for “all damages proximately resulting from such injury or death against any person other than the employer." (Emphasis supplied). 249 P.2d at 13. In holding the employing and treating physician to be a “person other than the employer”, the court said:

[Defendants] claim, however, that the rule that the employee injured in an industrial accident can sue the attending physician for malpractice only applies when the doctor is a third person, and has no application where the attending physician is also the employer. There seems to be no authority directly in point on this question, but on principle and logic it would seem that it should make no difference to the liability of the doctor for malpractice whether the attending doctor is the employer or an insurance doctor. This fact should not affect the legal rights of the employee. Dr. Shane, it is true, was the employer of * * * [plaintiff]. As an employer it was his duty to secure compensation for his employee. That he did. As an employer he was under no obligation [under the circumstances shown here] to treat * * * [plaintiff] personally. Had he sent * * [plaintiff] to the insurance doctor and had that doctor been negligent in treating the industrial injury, that doctor would have been liable for the malpractice. There seems to be no logical reason why the employer-doctor, when he undertakes to treat the industrial injury, should not be responsible in a civil action for his negligent acts in treating that injury. Once it is established that an action before the commission for the industrial injury is no bar to an action against the insurance doctor for malpractice, it would seem to follow that the employee does not lose his right to such an action simply because the employer who happens to be a doctor treats the injury. In such event, the employer-doctor is a ‘person other than the employer’ within the meaning of section 3852 of the Labor Code above quoted. In treating the injury Dr. Shane did not do so because of the employer-employee relationship, but did so as an attending doctor, and his relationship to * * * [plaintiff] was that of doctor and patient. 249 P.2d at 15.

The appellant also relies upon Jefferson Medical College Hosp. v. Savage, 7 Pa. Cmwlth. 35, 298 A.2d 694 (1972). There the hospital secretary received a compensable injury resulting from a fall. After a successful treatment in the hospital, she was dropped into her bed after returning from therapy and her hip was dislocated. Subsequently, she received yet another injury while in the hospital. She instituted a tort action against the hospital and this action was settled by the hospital’s insurance carrier.

Jefferson’s compensation carrier sought to suspend the compensation agreement, taking the position that Jefferson, as employer, was entitled to be subrogated to the rights of the employee against Jefferson as a third party tortfeasor and to the extent of the compensation paid and payable.

The court addressed the identical issue we have in this case at bar, viz were the subsequent injuries resulting from the negligent acts of the Hospital while claimant was a patient compensable under the Workmen’s Compensation Act, or were they only the basis of an extension of compensation? In addressing this question the court noted that “[t]he crucial factor in the present case is that Miss Savage’s injuries in the hospital were new and independent injuries and were not an aggravation or extension of her injury sustained in her fall.” (Emphasis supplied), 298 A.2d at 696. Therefore, the court held that the additional and different injuries received at the hospital were not compensable injuries occurring in the course of employment.

We do not consider this case to be authoritative. First, the injuries received in the case at bar were incident to the treatment and were of such character that they cannot be classified as new, or additional or different. Secondly, and mainly, under Tennessee Law, the injuries sustained • in the hospital would have been compensable, whether new and independent or in aggravation of an existing injury.

This appeal must stand or fall upon Du-prey v. Shane, supra, as we are cited to no other authority that would justify relief and our independent research discloses none.

It is the theory and insistence of the appellee that where an employer is liable under the Workmen’s Compensation Act for the original or first injury to the employee, the employer is also liable under the act for any additional injuries caused by medical treatment. Appellee contends that the initial injury and the second injury (treatment) arose out of and in the course of employment. Therefore, it insists upon the exclusivity of the remedy provided under the Workmen’s Compensation Act. Phrasing it another way the Methodist Hospital insists that if it is liable under the act, it isn’t liable under the common law. As a general proposition our courts support these insistences.

The appellee relies upon Lindsay v. George Washington University, 108 U.S. App.D.C. 44, 279 F.2d 819 (1960), a case which arose under the Longshoremen’s and Harbor Workers’ Compensation Act, and which presented the question of whether the “exclusive remedy” provision of the act, as incorporated in 33 U.S.C.A. § 905, precluded an action of malpractice at the employer’s hospital in the treatment of a com-pensable injury. The court responded in the affirmative.

It should be noted that 33 U.S.C.A. Sec. 905 is substantially similar to Sec. 50-908, T.C.A. It provides that “[T]he liability of an employer . . . shall be exclusive and in place of .all -other-liability=ofr-such employer to the employee . . . Sec. 50-908, T.C.A. provides that “[t]he rights and remedies herein granted shall exclude all other rights and remedies”.

The Court concluded its opinion as follows:

Our conclusion is not altered by the fortuity that the employer . . . also operated the hospital where the professional services complained of were rendered. The employer is responsible in the particulars and to the extent specified by the Act for all legitimate consequences flowing from a compensable injury. That liability, so imposed, measures this plaintiff’s entitlement. 279 F.2d 821.

Appellee also relies upon Vogel v. Jones and Laughlin Steel Corporation, 221 Pa.Super. 157, 289 A.2d 158 (1972). This was a malpractice action brought by an employee who had received a compensable injury. The principal issue, however, was whether the alleged aggravation of the original injury was one that occurred during the course of employment. Holding that there was a causal connection between the initial accident and the resulting injury, the court determined the claim to be compensable and, therefore, the tort action was barred. We do not regard this case as authoritative because, under Tennessee law, the initial injury is treated as the proximate cause of all damages flowing from the subsequent negligent treatment. Mallette v. Mercury Outboard Supply Company, supra.

We are also cited to the case of Warwick v. Hudson Pulp & Paper Company, Inc., 303 So.2d 701 (Fla.App.1974). There the plaintiff was injured in covered employment and the injury was aggravated by treatment in a clinic operated by the employer. The court held:

. the Florida rule is that when an injury necessitates treatment and the treatment aggravates the original injury, such aggravation is compensable. It necessarily follows that if the employer is held liable as a result of the contract dictated by the statutory enactment, such employer is entitled to the immunity of common law liability prescribed therein”. 303 So.2d at 702

Appellee cites cases decided under the Federal Employees’ Compensation Act and, indeed, these cases are both analogous and persuasive. Title 5, Sec. 8116(c), U.S.C. reads in part as follows:

The liability of the United States or an instrumentality thereof . . . with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee. (Emphasis supplied).

This section has been construed to preclude an action by a government employee for negligent treatment by government physicians, Sanders v. United States, 387 F.2d 142 (5th Cir. 1967); to bar an action by an injured seaman employed by the United States against a public health service operated and owned by the United States, Balando v. United States, 267 F.2d 135 (2d Cir. 1959); and to preclude an action against the United States by a federal employee whose injury was aggravated by government doctors in the course of treatment. Berry v. United States, 157 F.Supp. 317 (D.C.Or.1957). See also numerous cases on the exclusivity of the Federal Employees’ Compensation Act cited under 5 U.S.C. § 8116.

As commented by then Chief Justice Neil, in Garrison v. Graybeel, supra:

We know of no case where an employee, who is entitled to workmen’s compensation, holding that he may sue his said employer at common law. 202 Tenn. at 576, 308 S.W.2d at 379.

While appellant’s brief and oral argument made at the bar of this Court are most persuasive, and there is much logic to the California Court’s position in Duprey v. Shane, supra, our analysis of the issue leads us to the conclusion that this suit is barred by the express provisions of our compensation act.

We hold, that in the field of workmen’s compensation law, and in suits by a worker against his employer, the initial injury is the cause of all that follows, even where there is superimposed upon the original injury, a new, or additional or independent injury during the course of treatment, negligent or otherwise. This conclusion is mandated by the provisions of Sec. 50-908, T.C.A., and the consistent holding of this Court.

Nothing in Sec. 50-914, T.C.A. may be construed to evince a legislative intent that an employer may ever be classified as a “third person”, without doing violence to the plain language which permits common law suits against “some person other than the employer”. The employer is the employer; not some person other than the employer. It is that simple. The injured workman is confined to the benefits provided by the Workmen’s Compensation Act and may not sue his employer in tort.

This malpractice action against the Methodist Hospital of Memphis may not stand.

Affirmed.

COOPER, C. J., and FONES, HARBI-SON arid BROCK, JJ., concurring.

      . The liability of the two physicians is not before the Court. In the factual narration we . omit all but the necessary references to them.