author: McCLOUD, Chief Justice.

text:
    Lisa Diane WARNER by and through Christine Warner as next friend, Appellant, v. Judy RICE, Appellee.
    No. 4935.
    Court of Civil Appeals of Texas, Eastland.
    Sept. 30, 1976.
    Rehearing Denied Oct. 14, 1976.

      John W. Herrick and Bill Waltrip (Herrick & Waltrip), Fort Worth, for appellant.
    John P. Camp and George R. Carlton, Jr. (Fillmore, Camp & Lee), Fort Worth, for appellee.
   McCLOUD, Chief Justice.

At issue is the interpretation of the word “consanguinity” as used in the Guest Statute. Tex.Rev.Civ.Stat.Ann. art. 6701b, § 1(a) (1975-76 Pamp.Supp.).

Lisa Diane Warner, a minor, by and through her mother, Christine Warner as next friend, sued Lisa’s blood aunt, Judy Rice, alleging Lisa received personal injuries proximately caused by the negligent operation of a motor vehicle driven by Judy Rice. The trial court granted defendant’s motion for summary judgment and plaintiff has appealed. There are no disputed facts. We affirm.

It was stipulated that at the time of the accident plaintiff was three years old; she was being transported over a public highway of the state in a motor vehicle driven by Judy Rice; she was being transported without payment for such transportation; the accident was not intentional on the part of Judy Rice, or caused by heedlessness on her part, or a reckless disregard of the rights of others; and, Judy Rice was not guilty of gross negligence.

The minor plaintiff, Lisa Diane Warner, is the blood niece of the defendant, Judy Rice. The defendant is the blood sister of Lisa’s father, Thomas Doyle Warner.

Article 6701b, Section 1(a), as amended in 1973, provides in part:

“No person who is related within the second degree of consanguinity or affinity to the owner or operator of a motor vehicle and who is being transported over the public highways of this State by the owner or operator of the motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others. There shall be no such immunity for an owner or operator who is not so related to the guest.” (Emphasis added)

Black’s Law Dictionary, Fourth Edition, page 375, defines “consanguinity” as follows:

“Kinship; blood relationship; the connection or relation of persons descended from the same stock or common ancestor. 2 BLComm. 202; Rector v. Drury, 3 Pin. (Wis.) 298; Sweezey v. Willis, 1 Brad. Surr.R. (N.Y.) 49.
Consanguinity is distinguished from ‘affinity,’ which is the connection existing in consequence of a marriage, between each of the married persons and the kindred of the other. Sizemore v. Commonwealth, 210 Ky. 637, 276 S.W. 524, 525.
Lineal and Collateral Consanguinity
Lineal consanguinity is that which subsists between persons of whom one is descended in a direct line from the other, as between son, father, grandfather, great-grandfather, and so upwards in the direct ascending line; or between son, grandson, great-grandson, and so downwards in the direct descending line. Collateral consanguinity is that which subsists between persons who have the same ancestors, but who do not descend (or ascend) one from the other. Thus, father and son are related by lineal consanguinity, uncle and nephew by collateral consanguinity. 2 Bl.Comm. 203; Capps v. State, 87 Fla. 388, 100 So. 172, 173.” (Emphasis added)

Plaintiff urges that the Legislature intended the word “consanguinity,” as used in the Guest Statute, to mean “lineal” consanguinity. The parties in question are related by collateral consanguinity, but not lineal consanguinity. Plaintiff points out that the purpose of the statute was to prevent fraudulent collusion against insurers by insureds and their guests. Cedziwoda v. Crane-Longley Funeral Chapel, 155 Tex. 99, 283 S.W.2d 217 (1955). It is contended that persons related by collateral consanguinity, such as aunts and nieces, rarely live together, or maintain a close family relationship, and are not, therefore, as likely to engage in fraudulent collusion against insurers, as are those who are related by lineal consanguinity, such as parent and child. Under plaintiff’s contention the Guest Statute would apply in actions between father and son, but not between brothers.

We find nothing in the statute to indicate that the word “consanguinity” was intended to be limited to lineal consanguinity. Moreover, the statute expressly applies to persons related by “affinity” within the second degree. Affinity is the relationship which one spouse, because of marriage, has to blood relatives of the other. Black’s Law Dictionary, Fourth Edition, page 81. It would be incongruous to hold that the Legislature intended to exclude brothers from the statute, but include in-laws. Furthermore, we find no Texas case construing the word “consanguinity” in a statute, to mean only lineal consanguinity. We hold that Lisa Diane Warner is related by “consanguinity,” as that word is used in the Guest Statute, to the defendant.

Whether a blood niece falls within the second degree of consanguinity depends on whether the civil law or common law method is used in determining degrees of kinship. A general summary of the two methods is found in 23 Am.Jur.2d, Descent and Distribution, § 48, wherein it is stated:

“. . . The civil-law method of computing degrees of kinship has been adopted in most jurisdictions by statute or by court decision. Under this method the degree of kinship is determined by counting upward from the intestate to the nearest common ancestor, then downward to the claimant, each generation representing one degree. Computing by the rule of the civil law, parents and children of a deceased are related to him in the first degree; and grandparents, grandchildren, brothers, and sisters of the deceased are related to him in the second degree. Uncles, aunts, nephews, nieces, and great-grandparents of the deceased are related to him in the third degree. The fourth degree of relationship includes first cousins, great-uncles and great-aunts, and great-great-grandparents. The great-great-uncles and great-grant-aunts, the children of a cousin, and the children of a great-uncle or great-aunt are related in the fifth degree, while the relationship of children of second cousins is in the sixth degree.
A few American cases have been decided under the common-law, or canon law, method of computing degrees of kinship. Under this method the degree of kinship is determined by the number of generations from the nearest common ancestor to the intestate or to the claimant, taking the longer of the two lines where they are unequal. The difference in the method of the common and civil law in the computation of degrees exists only in relation to collateral consanguinity.” (Emphasis added)

Texas has followed the common law method of computing degrees of kinship. Tex.Rev.Civ.Stat.Ann. art. 2134(3), provides that a person is disqualified to serve as a juror in a case if he is related by consanguinity or affinity within the third degree to a party to the suit. In Smith v. Bates, 27 S.W. 1044 (Tex.Civ.App.1894, writ ref.), the court stated that the cousin of one of the parties was related within the third degree. Tex.Rev.Civ.Stat.Ann. art. 15, provides that no judge shall sit in a case “where either of the parties may be connected with him by affinity or consanguinity within the third degree . . .” Our Supreme Court in Fry v. Tucker, 146 Tex. 18, 202 S.W.2d 218 (1947) held that a judge was disqualified because the wife of the judge and the wife of one of the parties were first cousins. The common law method of determining kinship was obviously used in the two cases cited because under the civil law method of computation first cousins are related in the fourth degree. See also: Natural Gas Pipeline Company of America v. White, 439 S.W.2d 475 (Tex.Civ.App.—Beaumont 1969, no writ) and Baker v. McRimmon, 48 S.W. 742 (Tex.Civ.App.1899, no writ).

Applying the common law method of computation, the minor plaintiff, Lisa Diane Warner, and the defendant, Judy Rice, are related within the second degree of consanguinity.

Plaintiff next asserts that the Guest Statute should not apply to small children who obviously are not involved in any collusion or fraud. This court in Bryant v. Adair, 490 S.W.2d 950 (Tex.Civ.App.—Eastland 1973, writ ref. n. r. e.) held that minors were not excepted from the statute. See also: Reed v. Hicks, 489 S.W.2d 958 (Tex.Civ.App.—Amarillo 1973, writ ref. n. r. e.); and Linn v. Nored, 133 S.W.2d 234 (Tex.Civ.App.—Austin 1939, writ dism’d jdgmt. cor.).

Plaintiff’s cause of action is barred by the Guest Statute.

We have considered all of plaintiff’s points and they are all overruled. The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    In the Matter of M. A. G., a child, Appellant.
    No. 1116.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 30, 1976.
    Rehearing Denied Oct. 21, 1976.
    G. Jaime Garza, Morin & Garza, Edin-burg, for appellant.
    F. M. Guerra, Jr., Asst. Dist. Atty., Edin-burg, for appellee.
   OPINION

NYE, Chief Justice.

This case is an appeal from a jury verdict declaring the appellant, M. A. G., to be a delinquent and from the subsequent order of the Court placing the appellant in the custody of a correctional facility. The appellant has perfected her appeal from both the adjudication of delinquency and the disposition order to the correctional facility in Houston, Texas.

On April 2,1975, M. A. G. was taken into custody by the juvenile authorities in the City of McAllen. She was charged with misdemeanor theft (31.03 Penal Code) and released to her mother’s custody. At the time of the arrest, the juvenile was 15 years old. On January 21, 1976, an adjudication hearing was held and the jury returned a verdict that M. A. G. had engaged in delinquent conduct. Based on the jury verdict, the trial judge declared M. A. G. to be a delinquent child. On February 3, 1976, a disposition hearing was held and the trial judge ordered M. A. G. placed in the custody of the director of the Alternative House in Houston and placed M. A. G. on one year probation, subject to extensions not to exceed one year each until M. A. G. reached the age of eighteen. On February 6, 1976, M. A. G. left the Alternative House in Houston in violation of her probation and has to this date remained a fugitive. On March 22,1976, the appellant’s counsel filed a motion to suspend the disposition order and to grant a personal recognizance bond pending appeal. On May 11, 1976, the Clerk of this Court informed appellant’s counsel that his motion was being held under advisement by the Court and that the Court would not rule on his motion until the appellant surrendered to the appropriate authorities.

The case was submitted on September 2, 1976. Appellant was questioned about his lengthy brief of 167 pages. The brief contained 80 points of error, many of which were rephrasing the same points over and over again into multiple points. The appel-lee had answered appellant’s brief in 5 counter-points which in effect were the only points of error raised on the appeal. At the outset, the appellant informed the Court that he chose to argue only 3 specific points of error and that the brief would speak for itself for the remaining points. When questioned about his brief, the appellant admitted that his brief was unduly long (actually longer than the statement of facts) and apologized to the Court. The Court told the appellant that his brief was unacceptable and that it amounted to a flagrant violation of the briefing rules, specifically, Rule 418, T.R.C.P. He was then ordered to rebrief the case and was given 2 weeks in which to comply.

During oral argument, the Court also inquired as to the status of the appellant. The Court was informed by counsel for the appellant that M. A. G. was still a fugitive but had been in contact with her mother. The attorney for the appellant assured the Court that he did not know the whereabouts of the appellant. Whereupon the Court informed the appellant’s attorney that unless she surrendered herself to the appropriate authorities two (2) weeks from this day (September 2, 1976), the appeal would be dismissed. Appellant’s attorney informed the Court that he would attempt to get the message to the appellant through her mother.

On September 16, 1976, the appellant’s attorney filed a new brief containing 5 points of error which was 25 pages in length. The first brief was ordered stricken for being in violation of Rule 418, and the second brief was accepted and duly filed by the Clerk of this Court.

We now discuss the propriety of a dismissal of this appeal. Appeals from juvenile proceedings constitute one of the extremely rare circumstances when a Court of Civil Appeals has any direct contact with a criminal proceeding. Although under § 51.-17, Tex.Fam.Code Ann. (1975), a delinquency proceedings are governed by the Texas Rules of Civil Procedure, it has been made clear that the adjudication hearing under § 54.03, Tex.Fam.Code Ann. (1975), is governed by many laws set out in the Code of Criminal Procedure and by criminal case law. For example, § 54.03(f) provides that the state must prove the child to be a delinquent beyond a reasonable doubt, substituting the criminal burden of proof for the civil burden of proof by a preponderance of the evidence. § 54.03(b)(3), which concerns the child’s privilege against self-incrimination is governed by Art. 1.05 of the Code of Criminal Procedure. The child’s right to trial and confrontation of witnesses is governed by Art. 1.05 of the Code of Criminal Procedure. See § 54.-03(b)(4). Confessions by a child and a child’s right to trial by jury are likewise governed by the Code of Criminal Procedure. See § 54.03(b)(6), Art. 1.12, T.C.C.P.; and § 54.03(e), Art. 38.22, T.C.C.P.

The United States Supreme Court as well as the Courts of this State have for a long time recognized that juvenile proceedings are quasicriminal in nature. Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). See In the Matter of B. D. A., 524 S.W.2d 550 (Tex.Civ.App., Amarillo 1975, no writ); Leach v. State, 428 S.W.2d 817 (Tex.Civ.App., Houston [14th Dist.] 1968, no writ); Choate v. State, 425 S.W.2d 706 (Tex.Civ.App., Houston [1st Dist.] 1968, no writ). Neither the Texas Family Code nor the Rules of-Civil Procedure govern a situation where a juvenile escapes from custody and remains a fugitive during the pendency of an appeal. The Code of Criminal Procedure, Article 44.09, permits the Court of Criminal Appeals to dismiss an appeal if the defendant escapes from the custody of the authorities and remains a fugitive while the appeal is pending.

The United States Supreme Court recently overturned a ruling by the United States Court of Appeals for the 5th Circuit and held that the Texas Statute, Art. 44.09 of the Texas Code of Criminal Procedure, was constitutional. Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975). In its opinion, the United States Supreme Court indicated that not only was Art. 44.09 constitutional, but that the policy of dismissing appeals while the defendant-appellant remained a fugitive was a long standing policy of the Supreme Court.

The United States Supreme Court in Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970) stated that “[n]o persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudi-cable case or controversy, we believe it dis-entitles the defendant to call upon the resources of the Court for determination of his claims.” See Smith v. U. S., 94 U.S. 97, 24 L.Ed. 32 (1876); Bonahan v. Nebraska, 125 U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854 (1887); Eisler v. U. S., 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897 (1949). See also Brite v. State, 97 S.W.2d 232 (Tex.Cr.App.1936); Robertson v. State, 130 Tex.Cr. 299, 94 S.W.2d 168 (1936); Darnell v. State, 80 S.W.2d 968 (Tex.Cr.App.1935); Myers v. State, 38 S.W.2d 790 (Tex.Cr.App.1931).

We, therefore, believe that it is not only proper but necessary that we order this appeal dismissed. This Court recognizes that trial judges endeavor to place delinquent children on probation and in the custody of a variety of youth facilities other than the Texas Youth Council. Frequently, the security at these other facilities is deliberately kept at a minimum. To allow a juvenile to ignore the orders of the trial court on the one hand, and at the same time expect full relief from this Court on appeal on the other hand, would seriously jeopardize the authority and effectiveness of our juvenile courts who must deal with these problems on a daily basis. This we will not permit. We therefore order the appeal of M. A. G. dismissed.

We express no opinion as to the merits of appellant’s appeal. However, if the appellant, M. A. G., should surrender to the appropriate juvenile authorities within 15 days after the opinion of this Court has been announced, then in such event, this Court may consider a motion to reinstate the appeal as a part of a motion for rehearing.

      . Conforming to Section 56.010) which says: “Neither the child nor his family shall be identified in an appellate opinion rendered in an appeal or habeas corpus proceedings related to juvenile court proceedings under this title. The appellate opinion shall be styled, ‘In the matter of . .identifying the child by his initials only.”


author: KEITH, Justice.

text:
    M. L. C. LOAN CORPORATION, Appellant, v. P. K. FOODS, INC., Appellee.
    No. 7831.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 30, 1976.

      Edward V. Dilla, San Antonio, for appellant.
    Michael E. Grimes, Round Rock, for ap-pellee.
   KEITH, Justice.

Defendant below appeals from an adverse judgment rendered non obstante ve-redicto in a suit to recover damages suffered as a result of wrongful eviction from leased premises. We will refer to the parties as they appeared in the trial court.

On April 14, 1972, W. K. Dill and Morty Kester entered into a lease agreement covering a building in Killeen, Texas, which was used to transact the business of “Morty’s Pizza King”. Dill sold the property in question to defendant subject to the terms of the lease and it recognized Kester’s assignment of the lease to the plaintiff.

Kester continued to operate the pizza business in the leased premises until he had a heart attack in July, 1974. About August 17, 1974, according to Philip Juarez, president of the plaintiff corporation, P. K. Foods, Inc., he learned that the taxes had not been paid and that the pizza business in Killeen was in bad shape. He said that he fired all of the employees and closed the business. On August 21, Elmer Douglas, the local manager of the defendant lessor, wrote a letter to Juarez and Kester advising of the nonpayment of the rent due on the premises since August 15 and advising them that they had ten days within which to pay the delinquent rent or vacate the premises. A few days later, on August 23, 1974, defendant’s lawyer, Clinkenbeard, wrote a letter to Juarez stating that the premises had been abandoned for a period in excess of five days in violation of the lease agreement and that the lessee's interest in the premises would terminate ten days following the date of the letter.

Juarez testified that he sent one of his associates to Killeen on August 31 with his personal check payable to defendant for the amount of the delinquent rent and the associate said that he attempted to deliver the check to defendant’s agent Douglas on August 31 but that the payment was refused. It is undisputed that defendant took possession of the premises on October 2, 1974, and that plaintiff never at any time after August 17, 1974, attempted to resume possession thereof.

The jury found that the plaintiff had abandoned the premises and the other issue (which comes to us without complaint) found plaintiff’s damages; but, the trial court set aside the abandonment finding and entered judgment for plaintiff’s damages as found by the jury.

Defendant contends, and properly so under the authorities, that a trial court is authorized to grant a judgment non obstan-te veredicto only when there is no evidence of probative nature supporting the finding of the jury. The leading case is Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962), following Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952). The rule laid down in these two cases by our supreme court still prevails. See, e. g., Coffee v. F. W. Woolworth Co., 536 S.W.2d 539, 541 (Tex.1976). Having recognized the rule, we turn now to an examination of the record.

We find no evidence of probative force supporting the jury’s answer to special issue number one that plaintiff had abandoned the leased premises. Defendant’s agent Douglas testified that Kester came by and told him that he was having to close the business and discharge all of the employees; but, Kester denied having made such statements, claiming that he was confined to his home from the effects of a heart attack at the time Douglas testified Kester made the statement.

Moreover, plaintiff’s president, Juarez, testified, without contradiction, that Kester was not an employee of the plaintiff at the time he is alleged to have made the statements. In any event, it is not shown that Kester’s statements, assuming that they were made, were within the course and scope of his employment with the plaintiff. See, generally, 2 C. McCormick & R. Ray, Texas Law of Evidence § 1164, at 54-57 (2d Ed. 1956).

In the absence of authority, Kes-ter’s statements to Douglas constituted hearsay testimony as to the plaintiff. And, it is clearly established in our jurisprudence that hearsay testimony is not competent testimony and can never form the basis of a finding of fact or a judgment of a court. Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628, 631 (1941); Hebert v. Loveless, 474 S.W.2d 732, 737 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.).

It is generally conceded that abandonment is a question of intention; and, for there to be an abandonment, there must be evidence that there was an intention to abandon the property or the right before it can be lost. See, e. g., Lone Star Gas Company v. Murchison, 353 S.W.2d 870, 879 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.); 1 Tex.Jur.2d Abandonment § 10, at 8 (1959).

Moreover, defendant made no serious effort to dispute the fact that plaintiff’s check for the payment of the delinquent rent was tendered and refused by defendant before the expiration of the time for payment of the rent had expired. It is not likely that a tenant had fixed intention to abandon premises while tendering the rent which would have entitled him to another half month’s uninterrupted occupation of the premises.

Defendant’s testimony, other than that attributed to Kester, was confined to the cessation of use of the leased premises. Plaintiff’s corporate officer, on the other hand, denied any intention to abandon the premises, although it must be conceded, he did not offer any evidence of affirmative intent or overt act to reopen the business. As plaintiff points out, the language found in Humble Oil & Refining Co. v. Cook, 215 S.W.2d 383, 387 (Tex.Civ.App.—Austin 1948, writ ref’d n. r. e.), is pertinent:

“The most that can be said of the well is that the owners, having damaged the well, failed to repair and operate it. This is mere nonuser which is not sufficient to constitute abandonment.”

So it is in the case at bar. Evidence of nonuser for a few days will not support an abandonment of a leasehold under the record which we review. Point one is overruled.

Defendant contends that the trial court applied an erroneous standard in granting plaintiff’s motion for judgment non obstan-te veredicto in that he held that the defendant’s evidence of abandonment did not meet the standard of “clear and satisfactory” evidence. The trial court submitted an instruction along with special issue number one which read:

“You are instructed that the standard of proof for abandonment is by clear and satisfactory evidence rather than preponderance of the evidence and imposes a stricter standard of proof. ‘Clear’ means that the evidence should not be ambiguous, equivocal or contradictory; ‘Satisfactory’ means that the source of the evidence is such that men and women of ordinary intelligence and discretion may repose confidence in it.”

Defendant did not object to the instruction before the charge went to the jury. Thus, any objection to the instruction was waived. Tex.R.Civ.P. 274; Larson v. Ellison, 147 Tex. 465, 217 S.W.2d 420, 421 (Tex.1949); Edwards v. Strong, 147 Tex. 155, 213 S.W.2d 979, 981 (Tex.1948); Drake v. State, 488 S.W.2d 534, 538 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.). But, defendant seeks to avoid this rule by challenging the trial judge’s comments at the time he ruled upon the motion for judgment non obstante veredicto. Assuming, arguendo, that defendant may base his present attack upon such action, we find no reversible error. Defendant assumed the additional burden thrust upon it by the charge and succeeded in convincing the jury that plaintiff had abandoned the premises — under the strict instruction of the court. No harm has been shown.

We do not, however, approve the instruction which was given. It placed an undue burden upon the defendant; and, in another context, we might find reversible error. We need cite only the opinion in Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 209 (1950), wherein Chief Justice Hickman said:

“No doctrine is more firmly established than that issues of fact are resolved from a preponderance of the evidence, and special issues requiring a higher degree of proof than a preponderance of the evidence may not be submitted to a jury.”

See also, Ward v. Nava, 488 S.W.2d 736, 738 (Tex.1972), where the Court held that while the testimony of the moving party alone, without corroborating facts, is not sufficient to overcome the presumption that an officer’s return of citation was correct; nevertheless, such moving party need establish his case only by a preponderance of the evidence.

Under the fact structure of this case we find that the error was not of such a nature as to require a reversal of the judgment. Points two and three are overruled.

Defendant’s final point complains of the trial court’s refusal to submit certain special issues which it says it requested. We find in our transcript, upon two pages, what are labeled “Defendant’s Requested Special Issues”; but, the pages do not contain any stamp showing that they were filed and, more importantly, there is no showing that they were ever presented to the trial judge. No error is shown. Tex.R. Civ.P. 273 requires the presentation of such requests to the trial judge for action. See generally, 3 McDonald, Texas Civil Practice, §§ 12.34.1 and 12.34.2, at 428-430 (1970 Rev.Vol.).

After a review of the record and the briefs of the parties, and having found no reversible error, the judgment of the trial court is affirmed.

STEPHENSON, J., not participating.

      . Defendant has no points of error challenging the action of the trial court sustaining exceptions to his pleadings relating to the financial difficulties of the corporate plaintiff or the trial court’s action in refusing to permit defendant to offer evidence of taxes due, forfeiture of the corporate franchise, discontinuance of the water to the premises, the discharge of the employees, etc. Such complaints are not brought forward and cannot, therefore, be considered. Points not urged upon a court of civil appeals by an appellant cannot form the basis of its judgment. State Farm Mutual Automobile Ins. Co. v. Cowley, 468 S.W.2d 353, 354 (Tex.1971). Having failed to present one or more points complaining of the trial court’s action mentioned in this footnote, defendant waived and abandoned its right to complain thereof. Bickler v. Bickler, 403 S.W.2d 354, 361 (Tex.1966).

      . In granting the motion for judgment non ob-stante veredicto, the trial judge stated: “I’m convinced that the proof of abandonment does not measure up as a matter of law to the standard that was given the jury for determining abandonment and that the issue of abandonment is as a matter of law not in the case.” (emphasis ours)


author: HALL, Justice.

text:
    CHINA-NOME GAS COMPANY, INC., Appellant, v. James I. RIDDLE, Appellee.
    No. 5616.
    Court of Civil Appeals of Texas, Waco.
    Sept. 30, 1976.
    Rehearing Denied Oct. 21, 1976.

      L. L. Geren, Groesbeck, Wilbert Lasater, Tyler, for appellant.
    Jack Vickrey, Houston, Holloway Martin, Mexia, for appellee.
   HALL, Justice.

The appellant, China-Nome Gas Co., Inc., holds a permit as a gas utility from the Texas Railroad Commission. It has constructed a 6" gas transmission pipe line nine miles in length in Limestone County from the Little Buddy gas field to near the community of Springfield where the line joins a larger line owned by Lone Star Gas Company. Harris Fender is the operator of the Little Buddy Field. With the County’s permission, a five-mile length of the line was laid in the right-of-way of the Shiloh-Springfield road, which is a hard-surfaced road maintained by the County. The part of the roadway in which the line is laid crosses the property of the appellee, James I. Riddle, for a distance of 8,500 feet and passes within 100 feet of his house. The public acquired the right of use of the roadway by prescription only. Subject to this easement, Riddle owns the land under and on both sides of the road right-of-way for most of the distance it runs through his property. Riddle has not consented to the laying or use of the line.

Riddle brought this suit against Fender and China-Nome seeking temporary and permanent injunctions prohibiting the construction and use of the pipe line in the road right-of-way. He alleged that the line is a private line for private purposes; that his title to the land upon which the line is being laid is burdened only with the easement in favor of the public for road purposes; that he has not consented to the construction of the line; and that its construction across his land and within 100 feet of his house will cause him irreparable damage in several particulars. Fender and China-Nome answered with pleadings that Fender has no interest in the transmission line; that China-Nome is a common carrier pipe line and gas utility company within the meaning of the statutory law of Texas and that as such it has the statutory right to lay its lines under, along and across public roads with the consent of the State and the County involved; that it has the State and County consent to do so, here; and that the pipe line will only be used for public purposes. Alternatively, China-Nome pleaded the right of eminent domain as a common carrier pipe line and condemned any property interests of Riddle superior to its right in the roadway in question.

Before any hearings in the case, the installation of the line in the roadway along Riddle’s property was completed. Subsequently, after a hearing without a jury, the court ordered a writ of temporary injunction on May 20, 1976, prohibiting China-Nome from operating the pipe line pending final trial.

Trial courts are endowed with broad discretion to grant or deny applications for temporary injunctions, and the narrow question before us is whether the granting of the writ in question constitutes a clear abuse of discretion. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962). We hold it does not, and affirm the order.

Among other reasons set forth in the order for its issuance are findings that the pipe line is a private line constructed by Fender “for the private use of his wells in a small field operated by his family exclusively.”

China-Nome was incorporated in 1958 for the purposes of producing, buying, selling and distributing natural gas. Its stock is owned by Fender’s two sons. Its only asset of any consequence is the pipe line in question. Its president, J. B. Morris, is employed by Fender. Morris is China-Nome’s executive officer and receives his pay for this service from Fender out of Fender’s checking account. The business affairs of China-Nome and Fender are transacted from the same office. Checks for the handling of China-Nome’s business are issued to its president by Fender out of Fender’s banking account. All of the construction of the line in question was done by employees of China-Nome under the direction of its secretary, Paul Drummond, who is also Fender’s employee. Fender is the operator of the Little Buddy gas field. He owns the five producing gas wells in the field. They are worth “millions of dollars.” Riddle contacted Morris, China-Nome’s president, on April 22, 1976, after a part of the line had been laid, and inquired about safety precautions being followed in the construction of the line. Immediately thereafter, on the same day, China-Nome made application with the Texas Railroad Commission, through an attorney in Austin, for a permit to operate as a Gas Utility for the transportation of gas. The next day China-Nome was granted the permit by the Railroad Commission to operate a “trunk transmission line in Limestone County” for the transportation of gas. This suit was filed a week later. At different times before the filing of suit, Riddle was contacted by Dick Davis and by Morris regarding easements for the line. In each instance, Riddle was told by the men that they were representing Fender. On May 6th, China-Nome (acting through Morris), Fender, and Dow Chemical Company executed a written agreement “for the purpose of building a gas transportation line . . . for the transportation of gas owned by Harris R. Fender, et al., which gas is subject to a Gas Purchase Contract between Harris R. Fender and The Dow Chemical Company.” It recites that the line was to be constructed by China-Nome with $500,000 of borrowed funds. Inferentially it shows the funds were furnished by Fender. It provides the loan is to be repaid out of the charges agreed to for transporting the gas, and that “during the time the loan is in existence [China-Nome] will devote the entire receipts for transportation charges hereunder toward the retirement of the ‘construction fund loan’.” During construction, China-Nome is required under the contract to make detailed reports to Fender surrounding construction costs and the status of the “construction fund loan.” Morris testified that Dow Chemical is China-Nome’s only customer. The contract between Fender and Dow is not in evidence, and the record does not show for what purpose Dow will use the gas.

This evidence supports the court’s findings that the pipe line is a private line to be used for private purposes. These findings, in turn, support the issuance of the temporary writ of injunction to prevent the private use of Riddle’s freehold estate without his consent and maintain the status quo until this matter can be heard on its merits.

At the same time China-Nome filed the application with the Railroad Commission for a permit to operate as a Gas Utility, it filed with the Commission an instrument in which it is stated that “pursuant to the provisions of Article 6020, Title 102, of the Revised Civil Statutes of the State of Texas [China-Nome] hereby accepts the provisions of said Article and Title, and expressly agrees that in consideration of the rights conferred by said Article and Title [China-Nome] shall be and become a common carrier pipe line, subject to the duties and obligations conferred or imposed by law.” China-Nome argues that by reason of this acceptance and the provisions of Articles 6020, 6022, and 1436b, Vernon’s Ann.Tex.Civ.St., and Article 2.01, V.A.T.S., Bus.Corp.Act, and certain proof on the trial, it is a common carrier and as such is entitled to the rights and benefits conferred upon common carriers by the statutes, including the power of eminent domain and the right without the exercise of this power to lay pipe line in the right-of-way of the public road in question with the county’s permission.

Whether the business conducted by a pipe line company is actually that of a common carrier is a question of fact. 4 Summers, Oil And Gas 321, § 751. If, in fact, the line is available to all producers seeking its services — that is, to the public generally — it is a common carrier. Otherwise it is a private carrier. Producers Transportation Company v. Railroad Commission of California, 251 U.S. 228, 40 S.Ct. 131, 132, 64 L.Ed. 239 (1920). Although there is evidence in the record that China-Nome will function as a common carrier, we have shown that this fact is not conclusively established by the proof.

We need not and do not pass upon the other questions raised by the parties.

The judgment is affirmed.


author: JAMES, Justice.

text:
    Gary BALDWIN, Appellant, v. SECURITY BANK AND TRUST, Appellee.
    No. 5566.
    Court of Civil Appeals of Texas, Waco.
    Oct. 7, 1976.

      Durward D. Moore, Dallas, for appellant.
    Charles W. Rowland, DeSoto, for appel-lee.
   OPINION

JAMES, Justice.

This is a summary judgment case. Plaintiff-Appellee Security Bank and Trust (hereinafter called “Bank”) brought this suit against Defendants Burger Inns of America, Inc., (hereinafter called “Burger Inns”) and Gary Baldwin (Appellant herein). The Bank sued on a $35,000.00 note dated February 10, 1975 alleged to have been executed by Burger Inns, together with interest and attorney’s fees. Baldwin was alleged to be liable for payment of the note, interest, and attorney’s fees as a guarantor of the note, based upon a certain written guaranty instrument executed by Baldwin in favor of the Bank bearing date of November 11,1974. After both Defendants had answered by way of general denial, the Bank filed a motion for summary judgment against both Burger Inns and Baldwin, in support of which motion the Bank adduced as summary judgment proof the note, the guaranty instrument, and the affidavit of J. B. Haralson, president of the Bank. The Defendants answered the Bank’s motion for summary judgment by asserting the existence of material fact issues.

The trial court after hearing granted summary judgment in favor of the Bank against both Defendants jointly and severally in the amount of $36,269.98 principal and interest of the note plus $3,626.99 attorney’s fees, together with interest from the date of judgment at 6% per annum and costs. Defendant Burger Inns has not appealed from the judgment, and therefore the judgment is final as to it. However, Defendant Baldwin has appealed from said judgment, asserting that the guaranty instrument in question is not competent summary judgment proof for the reason that it is ambiguous. We sustain this contention and reverse the summary judgment as to Appellant Baldwin and remand same to the trial court for trial on the merits.

The pertinent portions of the guaranty instrument executed by Baldwin reads:

“For value received, I, we, or either of us, whose names are hereinafter subscribed to this instrument, and hereinafter called Guarantors, have jointly, severally and unconditionally guaranteed to the Security Bank & Trust of Dallas, Texas, hereinafter called Bank, and its successors and assigns, to the extent of Burger Inns of America, Inc., Dollars,_”

“It is expressly agreed and understood that this is a continuing guaranty to the extent of the sum shown above,_”

The guaranty appears to be a printed instrument with blanks which were filled in by typewriting for completion thereof. In the place where the amount of money was supposed to be typewritten which shows the maximum limit of the guaranty, there was typewritten “Burger Inns of America, Inc.” instead of the amount of money. With the guaranty instrument in this condition, it was and is impossible to determine from the face of the instrument the extent, if any, of Baldwin’s liability.

In the event of ambiguity in an instrument, as here, which can be resolved only by reference to extrinsic evidence, the granting of a summary judgment is improper. See Chapa v. Benavides Mill and Gin Co. (San Antonio Tex.Civ.App.1967) 420 S.W.2d 464, NRE; Robert v. E. C. Milstead Ranching, Inc. (Beaumont Tex.Civ.App.1971) 469 S.W.2d 429, NRE; Martin v. First State Bank, Memphis, Texas (Amarillo Tex.Civ.App.1973) 490 S.W.2d 208, no writ.

A summary judgment should be granted, and if granted should be affirmed only if the summary judgment record establishes a right thereto as a matter of law. Rule 166-A, Texas Rules of Civil Procedure; Harrington v. Young Men’s Christian Assn. of Houston (Tex.1970) 452 S.W.2d 423. In the case at bar, Plaintiff Bank’s cause of action against Defendant Baldwin depends upon the guaranty instrument. This instrument is ambiguous concerning the extent if any of Baldwin’s liability, and to clear up such ambiguity resort must be had to extrinsic evidence. In this state of the record summary judgment is improper. We therefore reverse the summary judgment insofar as Defendant-Appellant Baldwin is concerned, and remand same to the trial court for trial on the merits.

REVERSED AND REMANDED.


author: LUKOWSKY, Justice.

text:
    APACHE COAL COMPANY, Appellant, v. Rodney FULLER and Workmen’s Compensation Board of Kentucky, Appellees.
    No. 75-965.
    Supreme Court of Kentucky.
    June 11, 1976.
    Rehearing Denied Nov. 12, 1976.
    William J. Baird, III, Baird & Baird, Pikeville, for appellant.
    C. Kilmer Combs, Kelsey E. Friend Law Firm, Pikeville, for appellee, Fuller.
   LUKOWSKY, Justice.

This is an appeal from a judgment of the Pike Circuit Court which granted Rodney Fuller workmen’s compensation benefits in the amount of $27.00 per week for partial disability.

The factual background is not in dispute. The evidence established that Fuller was injured after January 1, 1973, that he returned to work for another company after his injury at a higher wage than he was earning at the time of his injury and that he had a ten percent to thirty-five percent functional impairment to the body as a whole. The board found that his average weekly wage was $170.00, that he had two dependents and that he had an occupational disability of twenty percent.

The sole question presented for decision is the system by which his benefits should be computed. This imposes upon us the unpleasant task of interpreting and applying KRS 342.620(9), (10), (11), (12), KRS 342.-730(l)(b) and KRS 342.740(1). These statutes rival the Internal Revenue Code in complexity and contradiction. Their seeming internal inconsistency and inconsistency with each other is hypnotic and soporific.

KRS 342.620 provides in part:

(9) “Disability ” means, except for purposes of KRS 342.730(l)(c) relating to scheduled losses, a decrease of wage earning capacity due to injury or loss of ability to compete to obtain the kind of work the employe is customarily able to do, in the area where he lives, taking into consideration his age, occupation, education, effect upon employe’s general health of continuing in the kind of work he is customarily able to do, and impairment or disfigurement. A person who has lost wages by reason of his disability, and who is otherwise eligible for compensation, is entitled to compensation during the compensable period in an amount equal to the wages lost, so long as the amount does not exceed the applicable maximum compensation. For purposes of determining wages lost under this section, it is assumed that wage earning capacity prior to injury is the average weekly wage as calculated under KRS 342.140. An individual entitled to benefits under permanent partial disability shall be entitled to either his lost wages due to his injury, or body functional disability benefits, whichever is greater.
(10) “Income benefits” means payments made under the provisions of this chapter to the disabled worker or his dependents in ease of death, excluding medical and related benefits.
(11) “Medical and related benefits” means payments made for medical, hospital, burial and other services as provided in this chapter other than income benefits.
(12) “Compensation” means all payments made under the provisions of this chapter representing the sum of income benefits and medical and related benefits.

KRS 342.730 provides in part:

(1) Income benefits for disability shall be paid to the employe as follows, subject to the maximum and minimum limits specified in KRS 342.740:
(b) In all other cases of permanent partial disability, including any disfigurement which will impair the future usefulness or occupational opportunities of the injured employe, or employe disabled by an occupational disease, compensation shall be determined according to the percentage of disability, taking into account, among other things, any previous disability, the nature of the physical injury or disfigurement, the occupation of the injured employe and age at the time of injury or at the time the disability from an occupational disease began. The compensation paid therefor shall be 55 percent of the average weekly earnings of the employe at the time of his injury and two and one-half percent of his average weekly wage at the time of injury for each dependent up to a maximum of three, subject to the limitations contained in KRS 342.740, multiplied by the percentage of disability caused by the injury or occupational disease; provided, however, the individual entitled to benefits under permanent partial disability shall be entitled to compensation based on lost wages or body functional disability benefits, whichever is greater.

KRS 342.740(1) provides:

The minimum weekly income benefits for disability shall not be less than 20 percent (computed to the next higher multiple of $1.00) and the maximum weekly income benefit shall not exceed 60 percent (computed to the next higher multiple of $1.00) of the average weekly wage of the state as defined herein. In any event, income benefits shall not exceed the average weekly wage of the injured employe.

A careful examination of these statutes will quickly establish that a sentence by sentence dissection and attempted reconciliation would serve only to confound confusion in a field already replete with inconsistency. Suffice it to say that disability is defined and paid for on the loss of earning capacity theory with a provision for entitlement to compensation based on the actual wage loss theory, whichever provides the higher benefits. Cf. Larson, Workmen’s Compensation Law, Sec. 57.10. It is apparent that what the legislature has done is adopt two theories for the computation of benefits and provide that the employee is entitled to be paid pursuant to the theory which will grant him the greater return.

To restate the conclusion in the simplest terms, the employee is entitled to benefits computed by the most favorable of the following formulae:

A. Fifty-five percent of the average weekly earnings of the employee at the time of his injury and two and one-half percent of his average weekly wage at the time of injury for each dependent up to a maximum of three, multiplied by the percentage of occupational disability caused by the injury.
B. His average weekly wage prior to injury minus his average weekly wage subsequent to injury.

If we apply formula A to the facts of this case we find that the income benefits for disability should be $20.40 per week. If we apply formula B to the facts of this case we find that the income benefits for disability should be zero per week.

The legislature has, however, limited its largesse by providing that the maximum weekly income benefit shall not exceed sixty percent of the average weekly wage of the state (at the time of his injury $81.00), but in an effort to avoid the label of parsimony it has also provided that the minimum weekly income benefits for disability shall not be less than twenty percent of the average weekly wage of the state (at the time of this injury $27.00).

In C. E. Pennington Co., Inc. v. Winburn, Ky., 537 S.W.2d 167 (1976) we held that the maximum limitation applied to income benefits to be paid for partial disability not to the product of average weekly earnings multiplied by fifty-five to sixty-two and one half percent as the number of dependents might require. Following this rationale to its logical conclusion, we are of the opinion that the minimum limitation applies to income benefits to be paid for partial disability and not only to cases of total disability in which the average weekly wage is so low that the weekly income benefit computed in accord with KRS 342.-730(l)(a) is below the minimum.

We remind those who may be dissatisfied with this result that the entire concept of workmen’s compensation is a creature of statute. Our function in interpreting statutes is limited to analyzing and applying what the legislature has said, and does not extend to psychoanalyzing the legislature and applying what it may have meant to say. Cries for modification should be addressed to the legislature.

The circuit court did not err when it increased the award from $20.40 per week to the statutory minimum of $27.00 per week.

The judgment is affirmed.

All concur.


author: CLAYTON, Justice.

text:
    Stella Faye BUCKLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Sept. 17, 1976.

      Thomas E. Clay, Staff Atty., Jefferson Dist. Public Defender, Louisville, for appellant.
    Ed W. Hancock, Atty. Gen., Mary Ann Delaney, Asst. Atty. Gen., Frankfort, for appellee.
   CLAYTON, Justice.

Stella Faye Buckler was indicted for the August 17, 1973, murder by suffocation of her two-month-old son, Brian Christopher Buckler. After a first trial resulted in a hung jury, a second jury was empanelled, returning a verdict of guilty and sentencing her to life imprisonment. Of the several assignments of error raised by the appellant, we find the contentions that the trial court erred in excluding her mental hospital records and in excluding expert opinion testimony regarding her mental condition based on those records to be meritorious, and, accordingly, we reverse the judgment of conviction.

At trial, appellant relied on her history of previous mental instability in presenting a defense of not guilty by reason of insanity. The evidence offered indicated she had attempted suicide while a graduate student at Indiana University in August 1971 and had subsequently undergone periodic treatment for mental depression at Our Lady of Peace Hospital in Louisville, Kentucky, being so hospitalized on two separate occasions for periods of approximately one month each for treatments involving the use of electric shock therapy and drugs. Shortly after the birth of her child on June 13, 1973, appellant expressed open hostility toward it and her husband and subsequently phoned him on August 17, 1973, at his place of employment to inform him that the infant was dead. He rushed home to find the baby lying on a bed, partially covered by a pillow. Appellant was arrested at the scene and committed to Central State Hospital (now River Region Hospital), Louisville, for psychiatric observation.

Appellant assigns as error the trial court’s ruling that her medical records compiled subsequent to the alleged crime and in the custody and control of the Director of Medical Records at River Region Hospital were inadmissible as evidence by virtue of the hearsay rule. We agree that this evidence was improperly excluded, basing this conclusion on our decision in Moore v. Commonwealth, 92 Ky. 630, 18 S.W. 833 (1892), wherein this court held evidence of the defendant’s mental condition subsequent to the commission of crime to be competent on the issue of insanity, and in Whittaker v. Thornberry, 306 Ky. 830, 209 S.W.2d 498 (1948), wherein we held medical records to fall within the coverage of the “shopbook” exception to the hearsay rule.

Although ordinarily the hearsay rule prevents the introduction of evidence given by persons lacking personal knowledge of the facts, courts have been willing to relax the rule in the interest of justice, thereby developing exceptions to the rule. The two underlying bases traditionally given for any such exception are a necessity for the admission of the evidence in its hearsay form, and a circumstantial guarantee of the trustworthiness of the offered evidence — that is, the presence of something which the law considers a substitute for the oath of the declarant, observation of his demeanor by the jury, and his cross-examination by the party against whom the hearsay is offered. 29 Am.Jur.2d, Evidence, § 496 (1967). The “necessity” element requires that the person whose assertion is being offered be unavailable to testify or that evidence of the same value cannot be expected to be obtained from the same or other sources. 5 Wigmore, Evidence, § 1420 (Chadbourn Rev. 1974). In Whittaker v. Thornberry, supra, this court held that when a proper foundation is laid, medical records are admissible into evidence by reason of the “shopbook” exception to the hearsay rule, which permits the admission as competent evidence of record entries made in the regular course of duty in a business or profession by persons not having knowledge of the facts entered. In Dotye v. Commonwealth, Ky., 289 S.W.2d 206 (1956), we indicated this principle to be applicable to criminal as well as civil proceedings. In Whittaker and later in Bellew v. Commonwealth, Ky., 477 S.W.2d 779 (1972), we quoted approvingly the following from Professor Wigmore in reaching conclusions holding the medical records therein admissible:

“The medical records of patients at a hospital, organized on the usual modern plan, deserve to be placed under the present principle. They should be admissible, either on identification of the original by the keeper, or on offer of a certified or sworn copy. There is a Necessity; the calling of all the individual attendant physicians and nurses who have cooperated to make the record even of a single patient would be a serious interference with convenience of hospital management. There is a Circumstantial Guarantee of Trustworthiness; for the records are made and relied upon in affairs of life and death. Moreover, amidst the day-today details of scores of hospital cases, the physicians and nurses can ordinarily recall from actual memory few or none of the specific Rata entered; they themselves rely upon the record of their own action; hence, to call them to the stand would ordinarily add little or nothing to the information furnished by the record alone. The occasional errors and omissions, occurring in the routine work of a large staff, are no more an obstacle to the general trustworthiness of such records than are the errors of witnesses on the stand. And the power of the Court to summon for examination the members of the recording staff is a sufficient corrective, where it seems to be needed and a bona fide dispute exists.” Wigmore, Evidence, § 1707; Whittaker v. Thornberry, supra, 209 S.W.2d pp. 500-501; Bellew v. Commonwealth, supra, p. 781.

The medical records herein were ruled inadmissible because a proper foundation for their introduction had not been laid. The doctors who originally prepared the reports were not present at trial to testify as to their authenticity, not having been subpoenaed as witnesses. Because of this, the trial court reasoned that appellant had not attempted to obtain the doctors’ presence at trial with the requisite “due diligence” to satisfy the necessity requirement for the admission of hearsay evidence, though appellant’s counsel stated in chambers that the whereabouts of the doctors were unknown so that the issuance of subpoenas for them would have been useless. The trial court, therefore, based its exclusion of the medical reports on the wording of our holding in Whittaker where, after quoting the abovementioned statements from Wigmore, we stated, “We conclude that an authenticated hospital chart is admissible in evidence where the party offering it shows the necessity of admitting the record without requiring the person or several persons who made it, or caused it to be made, to testify.” Whittaker v. Thornberry, supra, 209 S.W.2d p. 501. However, as our quotation from Wigmore in Whittaker and Bellew indicates, the necessity requirement for the introduction of this type of hearsay evidence is satisfied by the very nature of the evidence sought to be introduced. We therefore feel it serves no useful purpose to require any further showing of the necessity of admitting the medical records, as we indicated in Payne v. Commonwealth, Ky., 509 S.W.2d 264, 266 (1974), when we stated simply, “Our rule is that records of patients at a hospital, organized on the usual modern plan may be produced in evidence by the custodian of the records.” To the extent the holding in Whittaker v. Thornberry, supra, requires such further showing of necessity, it is hereby overruled. The fact that the records in question pertain to mental, rather than physical, therapy does not preclude them from admission into evidence. In Payne v. Commonwealth, supra, we indicated that mental hospital records should be admissible when properly introduced. Then, as now, we saw no need to distinguish between hospital records pertaining to general physical treatment and those pertaining to mental therapy. We therefore conclude that hospital records, pertaining either to mental or physical therapy, are admissible into evidence, either on identification of the original by the custodian of the records, or on offer of a certified or sworn copy. Their admission remains, of course, subject to the requirements of competency, relevancy and materiality. We thus find the trial court committed error in ruling the records inadmissible.

Appellant further assigns as error the trial court’s refusal to allow an expert witness to express an opinion as to appellant’s mental condition at the time of the offense, as well as to her subsequent mental condition, based on the excluded medical records and on consultations with the appellant. The present rule in this jurisdiction is that a medical expert may not state an opinion based on information supplied by third persons. Lewis v. Commonwealth, Ky., 332 S.W.2d 656 (1959); Equitable Life Assurance Society of the United States v. Kazee, 257 Ky. 803, 79 S.W.2d 208 (1934). However, the trend among the various other jurisdictions is to the contrary, so that a number of courts, influenced by the teachings of highly regarded legal commentators (such as McCormick, Evidence, § 15 (1955); 3 Wigmore, Evidence, § 688 (3rd Ed. 1940)), have begun to hold such testimony admissible where, as here, the information supplied by the third person has not become part of the record of the case, but is the kind of information which the expert customarily relies upon in the practice of his profession, since the expert remains subject to cross-examination and scrutiny by the jury regarding his opinion and the facts on which it is based. “Admissibility on Issue of Sanity of Expert Opinion Based Partly on Medical, Psychological or Hospital Reports,” 55 A.L.R.3d 551 (1974). This trend finds support in Rule 703 of the Federal Rules of Evidence which states:

“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” Fed.Rules Evid. R. 703, 28 U.S.C.

In Sundquist v. Madison Ry., 197 Wis. 83, 221 N.W. 392, 393 (1928), the Wisconsin Supreme Court forcefully stated the policy underlying the admission of this type of evidence as follows:

“In order to say that a physician, who has actually used the result of . tests in a diagnosis . . . may not testify what that diagnosis was, the court must deliberately shut its eyes to a source of information which is relied on by mankind generally in matters that involve the health and may involve the life of their families and of themselves — a source of information that is essential that the court should possess in order that it may do justice between the parties litigant.
“This court . . . will not close the doors of the courts to the light which is given by a diagnosis which all the rest of the world accepts and acts upon, even if the diagnosis is in part based upon facts which are not established by the sworn testimony in the case to be true.”

The Supreme Court of Indiana articulated further support for the admission of such testimony in Smith v. State, Ind., 285 N.E.2d 275 (1972), wherein it stressed that with the increasing division of labor in modern medicine, the physician making a diagnosis must necessarily rely on the observations and tests of others as contained in hospital and medical records, and that records sufficient for diagnoses in the hospital should be enough for opinion testimony in the courtroom.

In U. S. v. Williams, 447 F.2d 1285, 1290 (5th Cir. 1971), the Fifth Circuit Court of Appeals stated the rationale for the admission of such evidence to be:

“. . . that the expert, because of his professional knowledge and ability, is competent to judge for himself the reliability of the records and statements on which he bases his expert opinion. Moreover, the opinion of expert witnesses must invariably rest, at least in part, upon sources that can never be proved in court. An expert’s opinion is derived not only from records and data, but from education and from a lifetime of experience. Thus, when the expert witness has consulted numerous sources, and uses . his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not as hearsay in disguise.”

It appears to us that the trend evidenced by these decisions is wise and salutary; hence we adopt as an exception to the hearsay rule in Kentucky that an expert may properly express an opinion based upon information supplied by third parties which is not in evidence, but upon which the expert customarily relies in the practice of his profession. Our previous opinions to the contrary are hereby overruled. We emphasize that the type of information which can be utilized by the expert in forming his opinion should be only that produced by qualified personnel and on which the expert would customarily rely in the day-to-day decisions attendant to his profession. Such a limitation, we feel, guarantees a relatively high degree of reliability and frees the expert to use for his testimony the tools on which he normally relies in making a diagnosis.

We therefore conclude under this ruling that since the expert opinion excluded below was based, at least partly, on the River Region Hospital records, and since the expert whose testimony was excluded is accustomed both to forming this type of opinion and to relying on this type of information in the practice of his profession, such exclusion was in error. We cannot say what weight the jury would have given the excluded evidence, but do express the opinion that such exclusion was prejudicial to the substantial rights of appellant.

The judgment is reversed for a new trial.

All concur.


author: COOPER, Chief Justice.

text:
    Homer W. DANIELS, Appellant, v. GUDIS FURNITURE COMPANY, Appellee.
    Supreme Court of Tennessee.
    Oct. 11, 1976.
    Charles R. Terry & Associates, Morris-town, for appellant.
    Donald B. Oakley, Morristown, for appel-lee.
   OPINION

COOPER, Chief Justice.

This is an appeal by the employee from a denial of compensation by the Chancery Court of Hamblen County in a workmen's compensation case.

Homer W. Daniels was employed by Gudis Furniture Company in July, 1974, to work on a furniture assembly line. On March 11, 1975, plaintiff suffered a back injury while lifting a “triple” dresser. The chancellor found that the injury involved the lumbarsacral spine and that appellant has “a genuine, residual neurosis which is causally related to the accident and which effectively permanently partially disables him to the extent of 40%.” The chancellor denied compensation benefits to appellant, however, on the basis of appellant’s admission that in making application for employment, appellant had wilfully and intentionally given false answers to the following questions:

Q. Have you ever been injured on the job?
Q. Have you ever filed a claim for workmen’s compensation?

Appellant answered each of the questions “No,” when, in fact, appellant had suffered a “pull” of the back muscles in 1969 while working for Wall Tube and Metal Products Company and was paid workmen’s compensation benefits on the basis of 5% permanent partial disability to the body as a whole. Appellant admitted he answered the questions falsely, stating that he did so because he was fearful of not being employed if he revealed the previous accident and claim.

Mr. Gudis testified that he relied on appellant’s application in employing him, and that he would not have employed appellant had he known of the prior back injury.

In Federal Copper & Aluminum Company v. Dickey, 493 S.W.2d 463 (Tenn.1973), this court held that three factors must be present before a false statement in an employment application will bar recovery of workmen’s compensation benefits. First, the employee must have knowingly and wilfully made a false representation as to his physical condition. Second, the employer must have relied upon a false representation and this reliance must have been a substantial factor in the hiring. Third, there must have been a causal connection between the false representation and the injury. The causal connection required is a factual showing that the injury upon which the workmen’s compensation claim is based is causally related to the employee’s prior injuries or physical condition which were wrongfully concealed from the employer. See Federal Copper & Aluminum Company v. Dickey, supra. Except in the most obvious eases, such causation must be established by expert medical testimony. Cf. Floyd v. Tennessee Dickel Company, 225 Tenn. 65, 463 S.W.2d 684 (1971).

Appellant concedes that there is evidence to support the chancellor’s finding that the appellant wilfully made false statements in his application for employment and that appellee relied on the statements in hiring appellant, but insists there is no material evidence showing a causal connection between the false representations and the injury sustained by him.

On this issue, the only testimony is that of Dr. David L. Greene, who testified as follows:

Q. All right, now, Doctor, is there a causal connection, in your opinion, between the psychogenic disorder that you found to exist on the dates of your examination, a causal connection between that and the injury that he says that he sustained on March 11, 1975?
A. In my opinion, there is a causal connection.
* * * * * *
Q. Doctor, what are some of the things, well, first of all, did Mr. Daniels relate to you other injuries that he had prior to the March 11, 1975 injury?
A. Yes, he did.
Q. O.K., then from a psychiatric standpoint, and particularly in performing a psychiatric examination, then did you go into occurrences prior to March 11, 1975, the date of the accident and occurrences subsequent to that date?
A. I did.
******
Q. Doctor, the — do you relate the psychological disorder, is it directly attributed, in your professional opinion to the March 11, 1975, accidental injury?
A. Yes, sir, it is.
Q. And you considered all past history in connection with the evaluation and assessment, right?
A. I considered his other injuries and accidents that he related to me.

Neither Dr. Greene nor the other medical witness, Dr. Gary R. Chambers, undertook to testify that appellant’s injury and resulting disability was in any way related to his back injury of 1969, nor that the 1969 injury made appellant a more likely candidate for a back injury than a workman who had not had such an injury. There being no medical evidence tending to show a causal connection between the false representation made by appellant in his application for employment and the injury he sustained while working for appellee, appellant is entitled to benefits for the work-connected, permanent partial disability found by the chancellor.

The decree of the chancellor denying appellant workmen’s compensation benefits is reversed, and the cause is remanded to the Chancery Court of Hamblen County for entry of a decree awarding appellant benefits provided for a 40% permanent partial disability of the body as a whole.

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


author: FONES, Chief Justice.

text:
    COMMERCIAL UNION INSURANCE COMPANY, Petitioner-Defendant, and Shelby Mutual Insurance Company, Defendant, v. Vernon SNEED et ux., Respondents-Plaintiffs.
    Supreme Court of Tennessee.
    Oct. 11, 1976.
    Charles W. Dooley, Thomas, Leitner, Mann, Warner & Owens, Chattanooga, for petitioner-defendant.
    Allen H. Carter, Carter & Reid, Athens, for respondents-plaintiffs.
   OPINION

FONES, Chief Justice.

We granted certiorari in this case limited to the issue relating to the imposition of the bad faith penalty of twenty-five (25%) percent, as provided in T.C.A. § 56-1105(A).

I.

The issue that precipitated this litigation, as stated by the Court of Appeals is:

“When there is in force on the same property a valued insurance policy and an open policy, are the prorata payment provisions recognized or does the valued policy law foreclose proration of the loss?”

The question presented is one of first impression in this State and we are in agreement with the disposition thereof by the Court of Appeals. We therefore adopt and quote from the opinion authorized by Judge Parrott:

“Mr. and Mrs. Vernon Sneed brought this suit to collect on two insurance policies for the loss of their house which was totally destroyed by fire on September 19, 1973. Of the two policies in force at the time of the fire, one was Commercial Union Insurance Company’s fire policy which was issued on February 1,1973, for a period of three years providing $6,000.00 coverage, and the other was a homeowner’s policy issued by Shelby Mutual Insurance Company on September 18, 1973, insuring the house for $12,000.00 and $6,000.00 on contents.
Commercial Union’s policy, having been issued more than 90 days prior to the fire, had by statute become a ‘valued policy.’ Riddick v. Yorkshire Ins. Co., 165 Tenn. 105, 56[52] S.W.2d 166 (1932). Shelby Mutual’s policy, issued less than 90 days, stands as an ‘open policy.’ Newark Fire Ins. Co. v. Martineau, 26 Tenn.App. 261, 170 S.W.2d 927 (1943).
Commercial Union insists since both policies have provisions requiring proration of liability where there is other insurance, its policy is only liable for a prorata share of the loss. Shelby contends that since the Commercial Union policy is valued, Commercial Union’s liability is for the full amount of its policy while Shelby’s liability is for the excess of the loss above Commercial Union’s policy limits.
There is no assertion plaintiffs used fraud in procuring the policies nor is it claimed the policies are voidable because of any acts on the part of the plaintiffs since the issuance of the policies. Neither is there a question as to the value of the house because prior to this litigation it was stipulated or agreed that the value of the house, exclusive of the contents, was $7,224.67.
Commercial Union has appealed from the chancellor’s finding its valued policy must pay the coverage limits of $6,100.00 while Shelby Mutual must pay $1,124.67, the remaining balance of the stipulated loss. In addition to the above amounts, the chancellor allowed I2V2 percent of the recoveries as attorney fees.
In this case the narrow issue is: When there is in force on the same property a valued insurance policy and an open policy, are the prorata payment provisions recognized or does the valued policy law foreclose proration of the loss? It should be noted we do not have for consideration the situation where there are two valued policies covering the same fire loss. Thus what is said here is applicable only where there is a valued and an open policy on the same property.
We do not find a decision where the precise question presented has ever been before the.courts of this state. However, the decisions from other jurisdictions as well as the legal tests seem to agree that prorate provisions of insurance policies are inconsistent with valued policy laws, and that where there is a conflict, the prorate clauses are invalid. 16 Couch on Insurance 2d, Sec. 62:28; 44 Am.Jur.2d, Insurance, Sec. 1811; 45 C.J.S., Insurance, Sec. 922; Republic Ins. Co. v. American Public Life Ins. Co., 246 So.2d 410 (La.App.1971); Miller's Mutual Ins. Assn. v. La Pota, 197 So.2d 21 (Fla.App.1967); Hensley v. Farm Bureau Mutual Ins. Co., 243 Ark. 408, 420 S.W.2d 76 (1967).
Our courts have followed a similar course by holding the provisions of statutes override any stipulations of the policy. See Dugger v. Mechanics' and Traders’ Ins. Co., 95 Tenn. 245, 32 S.W. 5 (1895). Also, our courts have held the valued policy statutes are to be read into every fire insurance policy in force in this state. Riddick v. Yorkshire Ins. Co., supra; Newark Fire Ins. Co. v. Martineau, supra.
We agree with the chancellor’s conclusion that Commercial Union Insurance Company must pay the full amount of its coverage under the policy. We hold, as did the chancellor, that the prorata liability provisions of the Commercial Union policy are unenforceable and invalid because they are in conflict with our valued policy law.”

II.

The learned chancellor found that the two insurance companies were not guilty of bad faith, “Nevertheless, it was unreasonable to have caused the plaintiffs to go to the expense of filing this action. The loss was not denied, the insurance policies were not denied, it was merely a question of which of the insurance companies were going to pay. It is the opinion of this court that such refusal was vexatious and without reasonable cause.” The chancellor concluded that attorney’s fees in the amount of twelve and one half (12Vh) percent should be awarded plaintiff against both defendants.

The Court of Appeals was of the opinion that the chancellor made the award of attorney’s fees pursuant to the authority of T.C.A. § 56-1105(B), and correctly held that to be error. The twelve and one-half (12⅛⅞) percent penalty under subsection (B) is applicable only when an unauthorized foreign or alien insuror has issued or delivered a contract of insurance in this State and both defendants were shown to be authorized to do business in Tennessee. In assessing the twenty-five (25%) percent penalty authorized by T.C.A. § 56-1105(A) the Court of Appeals observed that this was a controversy between two insurance companies trying to minimize their liability for a legitimate claim at the expense and inconvenience of their insured; that even though the question was one of first impression, under the circumstances, the two companies were guilty of bad faith.

The penalty was assessed upon the full amount of plaintiffs’ undisputed loss of 17,224.67.

Shelby Mutual did not petition for the writ of certiorari seeking relief from the twenty-five (25%) percent penalty on the amount of its liability and the judgment of the Court of Appeals with respect to it must be affirmed.

Commercial Union’s contention prior to suit, in its answer, at the trial and in the appellate court acknowledged that it was liable for the sum of $3,296.92, its portion of the loss prorated with Shelby Mutual.

Its answer filed on May 10,1974, asserted that it was willing to pay that sum and at the trial on December 23, 1974, it introduced, as exhibit 8, a check payable to the clerk and master in the sum of $3,296.92, dated December 6, ‘1974. However, both “tenders” were accompanied by the assertion that said sum was in full satisfaction of its obligation to plaintiffs and the amount tendered was not available to plaintiffs unless they accepted same in full settlement of their claim against Commercial Union.

It is apparent that Commercial Union could have paid the plaintiffs the sum of $3,296.92, unconditionally, without any prejudice whatever to its position in this litigation and its failure to do so renders it subject to the bad faith penalty, to that extent. It was entitled to litigate the question of liability beyond that amount without incurring any penalty on the additional sum involved in the question of first impression. See Brewer v. Aetna, Life Insurance Company, 490 S.W.2d 506 (Tenn.1973).

A penalty of twenty-five (25%) percent of the sum of $3,296.92 is assessed against Commercial Union and the judgment of the Court of Appeals as thus modified is affirmed and the cause is remanded to the Chancery Court of Monroe County for the entry and enforcement of a decree in accord with this opinion. The costs incurred in this Court shall be divided equally between plaintiff and Commercial Union Insurance Company.

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

      . T.C.A. 56-1137 provides that within 90 days after the writing of any contract of fire insurance on any building or structure the insurance company shall personally inspect the structure. No company shall issue or renew any fire insurance policy exceeding the fair value of the property insured.
      T.C.A. 56-1139 provides that where no inspection has been made or value fixed and agreed on, in the absence of fraud or mistake, it will be conclusively presumed the value of the property destroyed is that amount stated in the policy.

      . An ‘open policy’ is one less than 30 days old where no inspection or agreement has been reached as to value of the insured structure.


author: FONES, Justice.

text:
    David SEAY and Winn-Dixie, Inc., Appellants, v. KNOX COUNTY QUARTERLY COURT et al., Appellees.
    Supreme Court of Tennessee.
    Oct. 11, 1976.
    James A. McIntosh, Ambrose, Wilson, Lockridge & Grimm, Knoxville, for appellants.
    Charles A. Maner, Jr., Knox County Law Director, J. Michael Haynes, Jr., Asst. Knox County Law Director, Knoxville, for appel-lees.
   OPINION

FONES, Justice.

This is another case involving a denial of a permit to sell beer. Appellants, a grocery store and its owner, contend that the Beer Board discriminatorily applied the two thousand (2,000) foot rule when it denied the store’s application for a permit. After three unsuccessful attempts to obtain a permit from the Beer Board, appellants petitioned and were granted a writ of certiorari and trial de novo in chancery court. The Chancellor upheld the denial of a permit.

At the trial in chancery court all facts were stipulated. From these facts it appears that the Knox County Quarterly Court and Beer Board adopted the two thousand (2,000) foot rule on February 22, 1974. Appellants applied for beer permits on three (3) different occasions in 1975. On all three occasions the Beer Board’s basis for denying appellant’s application was the presence of a church within two thousand (2,000) feet of the store. It was further stipulated that there were at least three (3) other beer establishments in the same particular neighborhood that were also closer then two thousand (2,000) feet to a church. All three still retain their permits to sell beer.

The pertinent part of T.C.A. § 57 — 205 provides:

“Third, that no such beverages will be sold except at places where such sale will not cause congestion of traffic or interference with schools, churches, or other places of public gathering, . . . the county court having the right to forbid such storage, sale or manufacture at places within two thousand (2,000) feet of such places of public gatherings in its discretion.”

We said in Serv-U-Mart Inc. v. Sullivan County, 527 S.W.2d 121 (Tenn.1975):

“The phrase, ‘in its discretion,’ appearing in T.C.A. § 57 — 205 must be interpreted to mean that a county has a discretion as to whether or not a two thousand (2,000) foot prohibition will be adopted in the first instance. After adoption, a finding of discretionary application will invalidate the rule.” 527 S.W.2d at 123.

It is evident from the fact that three (3) other establishments retain their license in violation of the rule that there has been “discretionary application” in its enforcement. This is sufficient to invalidate the rule.

The chancellor denied the permit, as did the Board upon the sole ground that the location of the premises of the permittee was only 733.4 feet from a church.

The effect of discriminatory application of the fwo thousand (2,000) foot rule is to completely remove, as a valid ground for denial of a beer permit, proximity measured in feet, to a school, church or other place of public gathering. Under the third requirement of T.C.A. § 57-205 a finding of traffic congestion or interference, with schools, churches, etc., may justify a denial of a permit only if supported by facts other than mere proximity in feet to such institutional establishments.

The chancellor’s decree is reversed and the cause remanded to the Chancery Court of Knox County for further proceedings consistent with this opinion. Costs are assessed against the appellees.

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


author: BROCK, Justice.

text:
    NASHVILLE HOUSING AUTHORITY, Petitioner, v. Freda COHEN, Respondent.
    Supreme Court of Tennessee.
    Oct. 12, 1976.

      Joseph L. Lackey, Jr., Lackey, Alexander & Jackson, Nashville, for petitioner.
    J. Granville Clark, Russellville, Ky., Harold Seligman, Nashville, for respondent.
   OPINION

BROCK, Justice.

I

This is a condemnation case. The question presented is whether or not the trial judge erred in refusing to charge the jury that, in determining the fair market value of the property, they should consider the effect, if any, of potential rezoning of the property; provided, they should first find that rezoning was a “reasonable probability.”

The trial judge refused a request for special instruction to this effect submitted by the condemnee-respondent, Freda Cohen. The Court of Appeals, in an opinion by Drowota, J., held unanimously that failure to so instruct the jury upon the effect of potential rezoning constituted reversible error, and remanded the case for a new trial. The petitioner, Nashville Housing Authority, has filed a petition for certiorari on this single issue. Primarily because of an apparent conflict between different sections of the Court of Appeals, we granted certio-rari review.

The petitioner, Nashville Housing Authority, filed a condemnation petition against respondent’s residential property located at 110 31st Avenue, South in Nashville. A jury of view awarded respondent $30,350.00. Petitioner appealed to a petit jury trial in the Circuit Court which resulted in an award of $27,500.00. As noted, the Court of Appeals reversed for the reason above stated.

A large portion of the three day trial was devoted to testimony regarding the prospect that the property might be rezoned from its present “Residential A” status, to a classification that would allow its use for multi-family dwellings or offices. The theory argued by the respondent was that commercially zoned property virtually surrounded the condemned property, that commercial zoning would greatly enhance the fair market value of the property, and that there was a reasonable probability that the zoning for the parcel would actually be changed to “commercial.” In summarizing the evidence to this effect, the Court of Appeals noted:

“In the instant case, the evidence adduced by appellant showed that the property was located two lots south of West End Avenue facing on 31st Avenue; that property facing West End Avenue is zoned commercial and property behind West End Avenue to the north had been zoned commercial for a full block; that immediately across the street from the property in question, on the other side of 31st Avenue, the property had been rezoned Residential C-l (allowing multifamily dwellings); that the subject property had originally been included in the zoning change request that resulted in that rezoning but was taken out when the proponents of the change were told by authorities that the subject property was to be taken for the street widening; that the subject property would lie in an area between a new branch of First American National Bank on the north and' an 800 car Vanderbilt University parking lot to the south, as well as the multi-family dwellings across 31st to the west; and that the Proposed Land Use Plan of the Nashville Housing Authority called for the area zoned at the time of the taking as Residential A, in which the subject property was located, to be rezoned to allow for multi-family dwellings.”

On the basis of this evidence, the respondent requested the following special instruction, which was declined:

“The Court instructs the jury that in arriving at the value of the real estate, the jury may consider the possible change of zoning and the reasonable influence on the market value of such possibility if the jury believe that there is a reasonable probability for such zoning change or changes.”

The petitioner does not challenge the correctness of this proposition of law. It has contended, instead, that the error does not warrant reversal because so much evidence was admitted to show the likelihood and probable effect of a zoning change that the jury must have considered, and rejected, the respondent’s theory that the market value of the property was enhanced by the possibility that it could be put to a more profitable use than that permitted by present zoning.

The judge did charge the jury as follows: “. . . Generally speaking it is proper to consider all of the varied elements of value, that is, all of the facts which the owner would properly and naturally press upon the attention of the buyer with whom he is negotiating the sale. And all of the facts which would naturally influence a person of ordinary prudence desiring to purchase. In this estimation the owner is entitled to have consideration be given to all the capabilities of the property, to the business or uses if any to which it has been devoted and to any and every use to which it may reasonably be adapted or applied. And this rule includes the adaptation and value of the property for any legitimate or lawful purpose or business even though it has never been so used, and even though the owner has no present intention to devote it to such use. “However it is the present market value which must be ascertained and not what the property may be worth at sometime in the future unless and only to such an extent as the possibility of such future value has an effect upon its present value.” (Underscoring added.)

This charge, standing alone, could be construed as embracing the matter contained in the requested special instruction. However, during the course of the trial, the jury was admonished not to consider the possibility of rezoning:

“What you are interested in is what this property was worth ... on May 11, 1973. What they did in 1973 [when nearby land was in fact rezoned] doesn’t have anything to do with this lawsuit.”

The jurors could not have considered the evidence of possible rezoning without disregarding the Court’s unmistakable statement that it was irrelevant.

Furthermore, since the controlling ordinance restricted the use of the subject property to single-family dwellings, use of the property for multi-family dwellings or offices would not be “legitimate or lawful.” Therefore, the “any legitimate or lawful purpose or business” limitation of the instruction given to the jury by the trial judge necessarily precluded the jury’s consideration of use of the land for multi-family dwellings or office space in determining the fair cash market value of the owner’s property.

II

The Tennessee Constitution requires “[t]hat no man’s particular services shall be demanded, or property taken, or applied to public use, without the consent of his representatives, or without just compensation being made therefor.” Tenn.Const. Art. 1, § 21. The “just compensation” constitutionally required is the fair cash market value on the date of taking of the property for public use. Alloway v. Nashville, 88 Tenn. 510, 13 S.W. 123 (1889). The fair market value of the land is the price that a reasonable buyer would give if he were willing to, but did not have to, purchase and that a willing seller would take if he were willing to, but did not have to, sell. Davidson County Board of Education v. First American National Bank, 202 Tenn. 9, 301 S.W.2d 905 (1957); Woodfolk v. Railroad, 32 Tenn. 421 (1852). In determining what constitutes fair market value, the rule in Tennessee has long been stated to be that the jury must consider all capabilities of the property and all the legitimate uses for which it is available and reasonably adapted. Davidson County Bd. of Education v. First American Nat’l Bank, supra; McKinney v. Nashville, 102 Tenn. 131, 52 S.W. 781 (1899); Alloway v. Nashville, supra.

Although the question has not previously been considered by this Court, it is generally recognized that a use which is presently illegal may be considered, along with all presently available uses, in determining the value of property, if the restrictive law is malum prohibitum rather than malum in se, and, if there is a reasonable probability that the presently illegal use will be made legal in the future. 4 Nichols, The Law of Eminent Domain, §§ 12.3143[2], 12.322 (3d ed. 1975). See also 1 Orgel, Valuation Under Eminent Domain, § 34 (2d ed. 1953). When these conditions are met, it seems clear that, in determining value in condemnation proceedings, a use of land which is prohibited by existing zoning regulations may be considered. The rule has been well stated by Nichols in The Law of Eminent Domain:

“Where the enactment of the zoning restriction is not predicated upon the inherent evil of the proscribed use — in other words, where the forbidden use is malum prohibitum rather than malum in se —and there is a possibility or probability that the zoning restriction may in the near future be repealed or amended so as to permit the use in question, such likelihood may be considered if the prospect of such repeal or amendment is sufficiently likely as to have an appreciable influence upon present market value.” 4 Nichols, The Law of Eminent Domain, § 12.322[1] (3d ed. 1975).

Apparently, the earliest case concerning the effect upon the issue of value in eminent domain proceedings of possible alteration of zoning regulations is the Ontario case of In Be Gibson, 28 Ont.L.R. 20, 11 D.L.R. 529 (1913). The court held that evidence of the probability of a change in the zoning regulation could be introduced as well as evidence of the higher value which the property would enjoy once the restriction were removed. The first such holding in this country was by the California court in City of Beverly Hills v. Anger, 110 Cal. App. 626, 294 P. 476 (1930). In subsequent years this rule or a variation of it has apparently been adopted by all American jurisdictions that have considered the question. See, e. g., Union Elec. Go. v. Saale, 377 S.W.2d 427 (Mo.1964); State Roads Comm’n v. Warriner, 211 Md. 480, 128 A.2d 248 (1957); People v. Dunn, 46 Cal.2d 639, 297 P.2d 964 (1956); Hall v. City of Des Moines, 245 Iowa 458, 62 N.W.2d 734 (1954); City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954).

Most of these decisions have given emphasis to the requirement that the prospective change in zoning be “reasonably probable” within “the near future,” or, probable within a “reasonable time.” An example of this emphasis is found in City of Austin v. Cannizzo, supra at 815, wherein the court stated the following test for admissibility of evidence of a prospective change in zoning:

“If the trial judge is satisfied from the evidence as a whole that there is no reasonable probability that restrictions may be lifted within a reasonable time, he should exclude evidence of value based on use for any purposes other than those to which it is restricted. On the other hand, if it appears reasonably probable to the trial judge that the wants and needs of the particular community may result, within a reasonable time, in the lifting of restrictions, he should admit testimony of present value based on prospective use of the property for purposes not then available.”

It has been held, however, even where the prospect of change is remote, that if the likelihood is sufficient to have an appreciably enhancing effect upon present market value, it may be considered. Thus, in Mos-chetti v. City of Tucson, 9 Ariz.App. 108, 449 P.2d 945, the court reasoned:

“The term ‘in the near future’ or even the term ‘in a reasonable time’ bear no direct relationship to the ultimate subject under inquiry, i. e., the market value of the condemnee’s land to the hypothetical willing buyer. To a literary-minded judge, the term ‘near future’ might exclude a rezoning that is unlikely for a two or three year period. To an astute investor, however, ten, fifteen, or twenty years might be considered ‘in the near future,’ or a ‘reasonable time,’ from the standpoint of investment objectives.
* * * * * *
“The far better rule, in our view, emphasizes the clause in the Nichols rule which states that ‘. . . such likelihood may be considered if the prospect of such [zoning change] ... is sufficiently likely as to have an appreciable influence upon the market value.’ ”

This view has found support in Wolff v. Commonwealth of Puerto Rico, 341 F.2d 945, 946 (1st Cir. 1965), wherein the court said:

“While some of the cases cited infra speak only in terms of probability, we think that any possibility sufficiently substantial to affect market value must be regarded.”

The difference between the “reasonable probability” standard and the “any possibility sufficiently substantial to affect market value” standard urged in the Mos-chetti and Wolff cases should not, in our opinion, be exaggerated. They are but different expressions of the requirement that evidence must be relevant and material to be admissible. It is the effect, if any, upon the fair market value on the date of taking which makes relevant the evidence of a possible rezoning of the property. A prospect of rezoning, no matter how imminent, is irrelevant if it has no effect upon such fair market value; and, on the other hand, a prospect of rezoning which may appear to be somewhat remote should, nevertheless, be considered by the court if it affects the fair market value of the property on the date of taking. See Moschetti v. City of Tucson, supra, at 950. It is this standard of relevance and materiality which the trial judge should employ in exercising his discretion to admit or exclude evidence offered to show a possible zoning change.

When such evidence has been admitted, the jury should be cautioned that they must not evaluate the property as though the possible rezoning were already an accomplished fact, but, that in considering value they may take into account the effect, if any, which the possibility of rezoning has already had upon the fair market value of the property on the date of taking. See Morrison v. McMinn, 88 Ariz. 261, 355 P.2d 900 (1960); 4 Nichols, § 12.322(1). We conclude that the evidence in this case warranted a jury instruction substantially as we have stated and, that the instructions given, considered in toto, did not include such a charge.

The judgment of the Court of Appeals reversing the judgment of the trial court and remanding for a new trial is affirmed. Costs in this Court are taxed against the petitioner.

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